Page:North Dakota Reports (vol. 48).pdf/307

 slay 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 commonly 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 Letter 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: