Pierce v. Kneeland

By the Court,

Cole, J.

We entertain no doubt but that, under section 248 of the code, in order to stay proceedings, on appeal from a judgment for the sale of mortgaged premises, and for the payment of the deficiency arising upon the sale, the appellant must give an undertaking in such sum as the judge of the court shall order, conditioned, or to the effect that during the possession of the mortgaged property by him, he will not commit or suffer any waste thereon ; and that if the judgment be affirmed he will pay the value of the use and occupation of the property from the time of the appeal until the delivery of the possession of the property, and also further conditioned for the payment of any deficiency arising upon the sale of the mortgaged premises. This is the construction which in our opinion must be given to the above quoted section of the code.

It is admitted that such an undertaking was not given by the respondents on the appeal taken by them, and therefore we think the execution of the judgment of foreclosure and sale was not stayed by the appeal, which they made.

It was decided by this court in the case of Cushing et al. vs. Hungerford, on an application for a writ of prohibition to restrain the circuit court of Rock county from proceeding to a hearing and final decree in that cause while an appeal was pending in this court from an interlocutory order of that court refusing to strike out or suppress certain testimony taken therein, that an appeal did not necessarily operate as a stay of proceedings in the action in the court below, except as to the matters appealed from. As to the effect of an appeal in proceedings in chancery, see the following cases: Messioner vs. Kaumer, 3 J. Ch. R. 65; Burke vs. Brown, 15 Ves. Jr., 183; Nillon vs. Nillon, 16 id. 216; Monkhouse vs. The Corporation of Bedford, 17 id. 380; May vs. Foy, 18 id. 452. Before the adoption of the code an appeal from a decree of foreclosure and sale of mortgaged premises would probably necessarily operate as a stay, since the whole case would be removed to the appellate court. But the code changes the practice in this respect, providing as it does, in effect, that proceedings under such a decree or judgment shall not be stayed unless an undertaking is given as therein prescribed. It is said that it is entirely unreasonable and unnecessary for the appellant to give an undertaking conditioned otherwise than to pay any deficiency which might arise on the sale of the mortgaged premises as such an undertaking makes the mortgagee amply secure. This may be all very true; but still if the legislature has provided by law that a stay shall not take place in the proceedings unless a certain undertaking is given, it only remains for a party desiring to prevent the execution of a judgment, to take the necessary legal steps for that purpose. In the present case we were given to understand that the circuit court denied the motion to confirm the sale on the ground' that in order to stay proceedings on appeal in foreclosure cases, it was only necessary to give an undertaking for the payment of the deficiency. In this the circuit court was in an error, and the order overruling the motion to confirm is reversed.