Page:North Dakota Reports (vol. 48).pdf/306

 accordance with the nature of the order appealed from, corresponding to the foregoing provisions in respect to appeals from judgments, when applicable and such provision shall be made in all cases as will properly protect the respondent and no appeal from an intermediate order before judgment shall stay proceedings unless the court or presiding judge thereof shall in his discretion so specially order.”

This section is directly applicable to the situation before us.. We must assume that the trial court will do its duty and render such decision as the ends of justice require and that the legal discretion with which it is vested will be fairly and honestly exercised to the end that the rights of all the parties may be protected and that all parties may have the fair trial to which they are entitled under our laws. Manifestly this court may not anticipate a decision one way or the other and has no more right to instruct the trial court how this question should be decided than any other question properly triable to the District Court in the first instance. We deem § 7832 controlling in the light of the facts before us. Accordingly, the application here is denied and the order to show cause vacated.

,, , and , JJ., concur.

, J. (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