W. H. WATERMAN vs. DURAND RAYMOND et al.
The Supreme Court has the power to order a stay of proceedings in the court helow touching any matter of appeal to the Supreme Court.
A justice of the Supreme Court has the power, in vacation, to make a provisional order for the stay of proceedings in the court below, to enable a party to make or renew, if need be, a similar motion in term. But in such cases the justice ought to look into the nature, circumstances and merits of the order appealed from.
An appeal removes the subject matter thereof and all matters necessarily connected therewith, to the Supreme Court, and is thenceforth within its control.
When great or irreparable injury is liable to result from the prosecution of .the cause after an appeal from an interlocutory order is taken, it is the duty of the court or justice to grant an order staying proceedings.
This was a motion to vacate an order made herein by Justice Smith, at chambers, staying the final hearing of said cause until the appeal taken by the defendants, from an order of the Circuit Court denying a motion for a feigned issue, should be heard'and determined in the Supreme Court.
At the August term, 1856, the defendants moved the court below for a feigned issue, which was denied. Erom the order denying this motion the defendants appealed. The defendants then moved for a stay of proceedings, as to the taking of testimony therein, until the decision of the Supreme Court on the appeal, which was also denied. At the same term, an order was entered, by consent, on the stipulation of the parties, referring the cause to a commissioner to take the testimony of witnesses, except that of two witnesses named therein.
Application was afterwards made to Mr. Justice Smith, of the Supreme Court, at chambers, for an order staying further proceedings until the said appeal should be determined, who, after ' hearing, made an order staying the final heariog of the cause until after the appeal in relation to the feigned issue should be determined, but not staying the taking of testimony under the order aforesaid, nor preventing the taking of any other proceed*186ings in tbe cause necessary to secure tbe just rights-of tbe parties.
Now, at this term,-- tbe complainant appellee moved to vacate tbe order made bjr Justice Smith, as aforesaid.
Carey, for tbe motion.
Lyon, contra.
Per Curiam.
Undoubtedly this court-has tbe power to order a stay of proceedings in tbe court below touching any matter of appeal to this court. And we .have no doubt that a justice of this court has tbe power in vacation- to make a provisional order for such stay of proceedings, to enable tbe party to make or renew, if need be, a similar motion in term.
In such, cases,-however, tbe justice ought to look into tbe nature and circumstances of tbe order, appealed from. Much is necessarily left to tbe discretion of tbe judge who made tbe order, but tbe appeal removes the subject -matter, and all matters connected therewith, to this court,- and is thenceforth within its control. No fixed rule can be laid down, but tbe action of tbe justice or court must depend upon tbe equities of the particular application, and where great or irreparable injury is liable to result from tbe prosecution of tbe cause, after an- appeal from an interlocutory order, tbe power ought to be exercised. On tbe other band, every impediment -to tbe progress of a suit to its final determination ought -to be removed, so far as it may be consistent with tbe just rights of tbe parties.
In this case we do not see that any material injury can result to tbe parties, in case tbe suit goes' on, except tbe costs of tbe proceedings, which will, of course, be at tbe haáard of tbe party so proceeding.
Tbe order is vacated.