Dennis v. Nelson

Appeal from an order striking out an answer as rivolous. The facts alleged in the complaint and admitted in ■he answer are, briefly, that the plaintiff commenced an action in ■he District Court against one Spencer to recover the price of cattle *148sold, and duly procured to be issued and levied on personal property of Spencer a writ of attachment. That defendant procured a discharge of the attachment by executing with sureties a bond such as-the statute requires for such a purpose. The cause was then tried,, a verdict rendered for plaintiff, and the defendant applied to the-court for a stay of proceedings to propose and settle a case or bill of exceptions and move for a new trial, and the court refused to grant the stay unless defendant should cause to be executed and filed the undertaking on which this action is brought, which undertaking is that the defendant in that action should pay the judgment if one should be finally rendered against defendant, and it recites that it is executed pursuant to the order of the court, and to secure the judgment and release and discharge the sureties in the bond previously given to discharge the attachment. Judgment was finally rendered in favor of plaintiff and against defendant, execution duly issued thereon, and returned unsatisfied. The answer contains allegations of new matter in connection with the requirement of the District Court that the defendant in that action should furnish an undertaking that amount to nothing more than an attempt to impugn the motives of the court in requiring the undertaking to be filed as a condition of the stay of proceedings. But no rule of law is more unquestionable, more elementary, than that a court’s integrity of motive cannot be questioned except by the state, in proper proceedings. No argument would be permitted upon an attempt by a party in an action to impair a decision or order of a court by impeaching its motives. Except in a proceeding to review the decision or order, no question is open but -that of the power or jurisdiction of the court to make the decision or order. That upon an application for a stay of proceedings after verdict the court may, in its discretion, require renewal of security for the final judgment as a condition of granting the stay, cannotl be doubted. The statute (1878 G-. S. ch. 66, § 240) provides: “The| judge trying the cause may, in his discretion, and upon such terms as may be just, stay the entry of judgment and further proceedings, until the hearing and final determination of a motion for a new) trial,” etc. The statute gives the defeated party the absolute right, which he may exercise without leave of the court or a stay of pro-| ceedings, to propose and have settled within a specified time a *149•case or bill of exceptions, to move for a new trial, and to appeal within a specified time. His application for a stay is voluntary. If the order on such application requires as a condition of a stay that the party do anything, his doing it is voluntary. He may do it, and accept the stay, or refuse to do it, and reject the stay. The undertaking, being voluntary and lawful, is good as a common-law undertaking, without regard to any authority of the court to require it.

The answer further alleges that, the verdict above mentioned having been set aside, the plaintiff, by leave of court, served an amended complaint, “which amended complaint set forth an entirely different and distinct cause of action from that set forth in the original complaint in said action,” and that upon the verdict on a trial of that cause of action the final judgment was rendered. Now, whether the facts alleged in the amended complaint constituted a cause of action different from that shown by the facts stated in the original complaint was not a fact, but a conclusion of law, to be drawn from a comparison of the facts stated in the two pleadings. The party pleading could not be permitted to determine that question, and plead accordingly, but it was for him to plead the facts, from which the court might determine it, and his pleading amounts to nothing unless he did so. Where the pleading violates this rule it is to be regarded as irrelevant, and interposed for delay only, and may be stricken out on motion. The insufficiency of this answer is so apparent as to need no argument, and it ought to be subject to the summary method of a motion to dispose of it.

Order affirmed.