Opinion
Nos. 29,690, 29,691.
August 4, 1933.
Appeal and error — condition on appeal effective to stay entry of judgment.
Where the district court has reversed a rate-fixing order of the railroad and warehouse commission, an appeal by the state and the applicant does not stay entry of judgment unless so directed either by this court or the district court, and 1 Mason Minn. St. 1927, § 4659, controls.
Writ of prohibition in this court upon the relation of the state railroad and warehouse commission and the Chicago, Milwaukee, St. Paul Pacific Railroad Company, directed to the district court of the second judicial district, Ramsey county, the Honorable Richard A. Walsh, one of the judges thereof, and to Foley Brothers, Inc., to prevent the entry of judgment reversing an order of the railroad and warehouse commission, pending determination of an appeal to this court from an order denying a new trial. Writ discharged.
Harry H. Peterson, Attorney General, Harry W. Oehler, Deputy Attorney General, F.W. Root, C.O. Newcomb, and A.C. Erdall, for relators.
O'Brien, Horn Stringer, for respondent Foley Brothers, Inc.
A writ of prohibition is sought by the state and the Chicago, Milwaukee, St. Paul Pacific Railroad Company to prevent the entry of judgment in the district court of Ramsey county reversing an order of the commission, pending the determination of an appeal to this court from an order denying a new trial. The commission's order authorized the publication of a rate of four cents a hundred pounds on sand, gravel, and crushed stone from the Twin Cities, St. Louis Park, Lakeland, Winona, Preston, Mankato, and Faribault to Albert Lea, Hayward, Oakland, Ramsey, Austin, Brownsdale, Dexter, Grand Meadow, Spring Valley, and Elkton. These destinations are points upon trunk highway No. 9 now proposed to be paved, and the commission sought to establish the proposed rate under the provisions of L. 1917, p. 834, c. 495. The trial court held the rates unlawfully discriminatory as against Foley Brothers, Inc., which has a plant at Preston for the production of such road materials. The merits of that holding are not before us. The court gave the appellants here a stay but made an order for the entry of judgment "unless on or before July 12, 1933, the Hallet Construction Company and the Chicago, Milwaukee, St. Paul Pacific Railroad Company make and file a supersedeas bond in favor of Foley Brothers, Inc., in the sum of $5,000 * * * conditioned as provided by § 9500 of the 1923 General Statutes of Minnesota."
The state by the attorney general and railroad company contend that § 9500 does not apply to appeals of this character and that § 4659 alone controls. With this contention we agree, but it does not help the relators. The latter section provides that an appeal shall not stay the operation of such order or judgment unless the district or supreme court has so directed. No application has been made to this court. The proposed entry of judgment is therefore not without the jurisdiction of the district court.
The writ is discharged.
STONE, Justice, took no part.