This case, No. 3,333, is the same case reported in 139 N. W. 597. The facts are there sufficiently stated. The question now before us is whether the bringing of this action was a violation of the order staying proceedings in the case wherein this plaintiff was plaintiff and the defendant C. N. Mellvaine was defendant, in which judgment was entered May 27, 1912, and which is now before us on appeal as No. 3,349.
[1] The material part of that order of stay is as follows: “Ordered, that a stay of all proceedings’ in this action, except the entry of judgment and taxation of costs be had for a period of 60 days from this date, and the time within which to settle a 'bill of exceptions, or prepare and serve affidavits, or transcribe the minutes of the court, or prepare a statement of the case and serve notice of intention to move for a new trial is extended and enlarged to the same period of time.” We are clearly of the *181opinion that whether the present action be considered as an independent action, or whether it be considered as ancillary to the other action, its institution was not a violation of the order of stay granted 'in that action. The purpose of this action was to have the lands, the record title to which stood in the name of the wife, decreed1 to be the lands of the -husband. The purpose of the -order of stay was to enlarge the period of time in which steps might be taken to move for a new trial, and to prevent the issuance of -execution during -said period.
[2] It appears that in -the other case a supersedeas undertaking accompanied the appeal. That undertaking had not been given at the time execution was stayed. When -appellant instituted this action it had the right to do so, and the subsequent filing of a supersedeas- undertaking did not deprive it -of that right. If after that undertaking had- been filed respondents, instead of moving to dismiss this action, had made application to the court in this case for an- order staying the -progress of this case until th-e determination of the appeal in that case, it would have been proper, no doubt, for the trial court, upon good cause being shown, to have granted such application upon -the ground that the judgment in that case was fully protected by the undertaking on appeal, and that respondents should not be put -to the expense and annoyance of the preparation and trial of -this case while that appeal was pending. If at the conclusion of this action the lands are held to be -the lands of the husband, then the question of levying an execution thereon, and their sale -to- satisfy the judgment in the other case will present a matter -covered by the -stay of execution in that case and in its subsequent continuance by the appeal. The defendant husband is 'in no danger of having his lands, if the lands standing in the name of his wife’s are his, subjected to the enforcement of the judgment in the other case until that case is finally -determined adversely to him.
The trial court, therefore, clearly erred in dismissing this action and canceling the notice of lis pendens.
The order appealed from is reversed, and the case remanded.