Page:North Dakota Reports (vol. 1).pdf/111

 On the contrary, it might result in a wrong which could never be redressed. The judgment of the district court on which this proceeding is founded was on appeal affirmed by the supreme court of the territory, and it is undisputed that an appeal in good faith has been taken from such judgment of affirmance to the federal supreme court, and is now pending in that court. On this second appeal the defendants failed to procure a stay of proceedings to enforce the judgment appealed from, and it is simply-for this reason that the plaintiffs in the judgment have even a technical right to the writ. It is well settled that the writ of mandamus in this class of cases is a remedy in the nature of an execution for the purpose of collecting the judgment. U. S. v. County Court, 122 U. S. 306, 7 Sup. Ct. Rep. 1171, and cases cited. But it is the policy of this jurisdiction that no security need be given to obtain a stay of execution pending an appeal, where the appellant, as in this case, is a municipal corporation. The reason is obvious. No security on appeal could make the judgment any more secure. There is no danger that the delay in the right to enforce it occasioned by the appeal will lessen the chances of collecting it. Were the pending appeal an appeal to this court, it would of itself stay the execution of the judgment, and be a complete answer to this application. Comp. Laws, § 5229.

Keeping this policy of the law in view, and giving it full effect, as is our duty to do, we hold that while the appeal to the federal supreme court did not operate as a stay to the extent that it did not debar the plaintiffs in the judgment from resorting to any strictly legal process to enforce the judgment, which would issue as a matter of right, (such as a writ of execution,) yet whenever a discretionary process is prayed for (as is the writ of mandamus) the policy of this state that a mere appeal in such a case should operate as a stay must control the discretion of the court, and direct its exercise in the line of that policy, in effect giving the stay by withholding the writ pending the appeal. Especially should this be done when the plaintiffs are not thereby placed in any different position from that which they would have occupied had a stay-bond been given, when they run no risk of losing their claim pending the appeal, but when, on