(dissenting in part).) From an order made by Judge Allen on June 14, 1921, denying a change of the place of trial, defendants duly' appealed to this court. The appeal was perfected on June 21, 1921. A stay bond of $2,000 was served and Judge Allen was requested to order a stay. The motion was captiously opposed and delayed because it was not made on a proper notice. Then a proper notice was given. But as the case was on the court calendar for trial and subject to a peremptory call defendants became fearful of the delay and on a truthful showing obtained from this court an order to show cause why a stay should not be allowed. Before this court the motion was opposed with amazing bitterness, which seems to have prevailed. A majority of-the judges deny the motion on the ground that it was prematurely made, the trial court not having failed or neglected to grant a stay.
The case is controlled by this section of the statute. Comp. Laws, § 7836: When the court or the judge thereof from which an appeal is taken or desired to be taken shall neglect or refuse to make any order or direction not wholly discretionary necessary to enable the appellant to *283slay proceedings upon an appeal, the Supreme Court or one of the Justices thereof, shall make such order or direction.
There can be no mistaking the statute. When an appeal is taken there must be a stay pending the appeal. It would be no less than a mockery to permit the trial of the case pending an appeal. Hence when the trial judge refuses to grant a stay, the Supreme Court or one of the justices thereof must allow the stay.
Under the circumstances of the case defendants were put in a dilemma. They were put on the ragged edge of uncertainty; the case being on the calendar subject to a peremptory call, it was not safe for them to rely on oral assurances of time to prepare for trial. The trial court should have allowed the stay immediately or should have made a written order protecting the rights of defendants and giving them ample time to apply for a stay to' a judge of this court. Under the circumstances and emergencies this court might well conclude that the trial court had neglected to grant a stay, and in a commonsense businesslike way this court should dispose of the matter by allowing the stay, and not subjecting the defendants to the mercies of the trial court and the chances of having to make another application to this court or a judge thereof. In such a petty litigation, it seems the judges should deal out remedial justice in a prompt and businesslike way.
This case has a status and a history which may well be considered. It is an action to recover damages for a political libel. Such an action is eommonly a nuisance per se, a public nuisance and a private nuisance. The complaint, though sworn to, is commonly framed without any regard for truth. It affirms that the complainant has sustained damages to the amount of $50,000 or a million dollars, when in fact he has sustained no damages. It affirms that certain words or phrases have a meaning which cannot be justified by the words themselves or by evidence. The old rule is that on a demurrer the court must hold as true every averment of the complaint, even though the same be obviously untrue. The new and better rule is that on a demurrer the judges will not hold as true any averment which they know to be false. That is a long step in the right direction.
As we say, a libel suit is commonly a public and a private nuisance. Its trial does commonly last for a week or a month and results in a verdict for six cents or nothing. Here is the complaint in this action:
*284“LANGER WANTS CONTROL.
“It became clear early in the referendum campaign that two factions were seeking control of the I. V. A. One was headed by Attorney General Langer and the other by President Iverson. Langer visited heads of Minneapolis and St. Paul corporations that are financing the I. V. A. early this year and demanded that he be made custodian of the slush funds that were expected in North Dakota. His record was against him and these gentlemen turned him down, though politely. Because of this Langer is sore, it was said yesterday, and is attempting to build up a machine of his own.” 179 N. W. 915.
The case having come before this court on a general demurrer to the complaint, three of the judges sustained the complaint because of its untrue innuendoes and two judges held that the complaint does not state a cause of action. That was in October, 1920.. When the case was remanded defendants offered to serve an answer, which was unjustly refused and Was not admitted until after a fight of several months. Now as the appeal was manifestly taken in good faith, the answer should have been received or allowed as a matter of course and without any conditions. Then a motion was made to change the place of trial from Cass county and Judge Cole made an order that the place of trial be changed to Richland county on this condition: “This order is subject to a further hearing on good cause shown therefor.” The good cause was shown and Judge Cole made an order that plaintiff show cause why the place of trial should not be changed from Richland county, but in the meantime the papers had been sent to Richland county, and, in his turn, Judge Allen made an order to show cause why the order made by Judge Cole should not be vacated. Then, on July 14, 1921, defendants duly moved Judge Allen for an order changing the place of trial. The motion was strenuously opposed and it was denied. Then, on June 21, 1921, defendants duly appealed to the Supreme Court and on a stay bond for $2,000 requested Judge Allen to grant a stay pending the appeal. Objection was made to the hearing for want of a sufficient notice of motion. A proper notice was at once prepared and served, but as the case was on the calendar of the trial court and on the peremptory call, and as the stay was bitterly opposed, defendants became fearful of delay and rushing to this court obtained an order to show cause, with a stay pending the motion. Instead of courteously assenting to the motion, it was opposed with the greatest bitterness, as if counsel had some hope of forcing the *285case to an immediate trial in Richland county and there obtaining a verdict because of public prejudice. However, the storms may clear the atmosphere and show that there can be no mockery of justice by forcing a case to trial pending an appeal, and in time counsel may learn that even in a political libel suit, honesty is the best of policy.