to taxation, and the taxes duly levied. The real foundation of plaintiff's claim is that he paid the tax when he was not the owner of the land. This does not bring him within the contemplation of the statute. It surely cannot be claimed that this section creates a liability of the county to persons paying taxes upon property not owned by them. Section 785 provides that "where the land is sold upon which no taxes were due, or in consequence of error in describing it in a tax receipt, the county shall hold the purchaser harmless by paying him the amount of principal and interest and costs to which he would have been entitled had the land been rightfully sold." But the plaintiff's case is not within this provision. The land upon which he paid was taxable, and the taxes were due; there was no error in its description.

It will be remembered that the taxes now under consideration are those that were paid after the tax deed was executed, not the taxes for which the land was sold. If either of these sections created liability of the county to plaintiff for the taxes for which the land was sold his action, as we have seen, is barred by the statute of limitations. It may be, but the point we do not decide, that the owner of the land is liable to plaintiff for the taxes, so far as the remedy therefor may not be barred.

6. Counsel insist that our former decision in this case (46 Iowa, 253) holds that defendant is liable for the taxes paid by plaintiff. We decided in that case the questions raised upon the facts presented by the record. The defence to the action was that Jones, when the land was assessed, had an equitable and taxable interest in the property, and it was, therefore, subject to taxation. We found that this defense was not supported by the facts, and held that the land was not taxable. No other defence being urged, we held that plaintiff ought to have recovered. We disposed of the question presented to us, and our decision is limited to that question. In the case as it now comes before us other defenses appear, and other questions arise. These we have determined as indicated above.

The judgment of the district court is affirmed.

SUPREME COURT OF WISCONSIN.

AMOS FELT, Appellant, vs. WILLIAM H. AMIDON and others, Respondents.

Filed December 16, 1879.

1. On reversal by this court of a judgment in favor of the plaintiff in an action, the circuit court has power to stay his further proceedings therein until he shall pay the costs adjudged against him on the appeal; and the order being grantable at discretion is not appealable.

2. Plaintiff's remedy in case he deems the stay unreasonable, somewhat considered per TAYLOR, J., but not determined; and cases suggested in which an order staying proceedings until a specific act be performed may be appealable, under subdivision 1, § 3069, R. S.-[STATE REP.

Appeal from circuit court, Dodge county.

E. P. Smith and II. W. Sawyer, for appellant.

II. W. Lander and James B. Ilays, for respondents. TAYLOR, J. This is an appeal from an order of the circuit court staying proceedings on the part of the plaintiff and appellant until he pays the costs, awarded to the respondents, by this court, upon the reversal of the judgment recovered against them in this action. It is insisted by the learned counsel for the respondents that the order is not appealable under the statute.

The right to appeal from an order of the circuit court to this court is given and limited by section 3069, R. S. 1878, which section is substantially section 10, c. 264, L. 1860, 2 T. S. 1635.

If this order be appealable at all under the provisions of said section it must be under the first subdivision, which reads as follows: "An order affecting a substantial right in any action, when such order in effect determines the action, and prevents a judgment from which an appeal might be taken.'

It is insisted by the learned counsel for the appellant that the order appealed from comes within the spirit, if not within the letter, of this provision, and that the order does in effect determine the action, and prevents a judgment. It is possithat the order may have that effect, but it does not by its terms. The stay is only granted until the plaintiff shall pay a certain amount of costs due to the respondent. If the money be paid, the stay of the plaintiff's proceedings ceases, and he may then proceed to judgment. We think this section refers to such orders, and such only, as by their very nature

determine the action, or prevent a judgment, and do not cover orders which simply stay the proceedings of the plaintiff until he shall perform some act or pay a sum of money. An order which stayed proceedings until an act should be performed which it was impossible to perform, or which required the performance of an unlawful act, might be construed to be an order which determined the action, or prevented a judgment, and was therefore within the provision above quoted, and appealable; but when an order stays proceedings until an act shall be performed, which is not illegal, and which is such as can ordinarily be performed, such stay cannot be said to determine the action or prevent a judg

ment.

An order staying proceedings in an action, not amounting to a perpetual stay, is generally within the discretion of the court in which the action is pending, and when granted for a cause which is a good ground for a stay, in the discretion of the court granting it, such order is not appealable. This court has so held in the following cases: Johnson's Ex'rs v. Riley, 24 Wis. 492; Parmalee v. Wheeler, 32 Wis. 429; Noble v. Strachan, Id. 314; McLeod v. Bertschy, 30 Wis. 324; In re The Will of Kneeland, 40 Wis. 344; McDonald v. The Green Bay & Miss. Canal Co. 42 Wis. 335; Blesch v. Railroad Co. 44 Wis. 593, 595. These cases seem to have settled this question. But it is insisted that if the facts upon which the order staying proceedings is based are such that it is evident that the court granting the stay had no right to grant the same, or that the granting of the same was an abuse of discretion, then this court ought to take jurisdiction, upon appeal · from such order, and reverse the same. This does not seem to have been the view taken by this court in the cases above cited.

It seems that the proper method to be pursued, in the first instance, by the party complaining of the stay, when he deems the stay unreasonable, is to move the court granting the same either to vacate or modify the same. If, upon such motion, the court should arbitrarily or unreasonably refuse to modify or vacate the order, some of the cases above cited intimate that an appeal from such last order would be sustained, probably upon the ground that such order would involve the merits of the action, or some part thereof, within the meaning of subdivision 4 of said section 3069. Such appears to have been the opinion of Justice Lyon, as intimated in Noble v. Strachan, supra. In the case of In re The Kneeland

Will, supra, Justice Cole strongly intimates that the remedy in such case would be by mandamus. Without determining what would be the proper remedy of the person prejudiced by an arbitrary and unjust refusal to vacate an order staying proceedings unreasonably, we are satisfied that such order, made in the first instance upon facts which call for the exercise of the discretion of the court below, is not appealable.

We might rest this case here; but, as the learned counsel for the appellant insists that the circuit court exceeded its powers in granting the stay in this case, we will briefly examine that question. Had the court the right to stay plaintiff's proceedings until the costs of the appeal in the action were paid? There being no law of this state forbidding the granting of such stay, we think the court had the right to make the order in its discretion, upon the facts appearing on the motion. If, after an honest effort on the part of the appellant to comply with the order, it should be made to appear to the court below that it was impossible for him to comply therewith, on account of his poverty and inability to induce any one to advance the money to pay such costs, the court should refuse to modify or vacate such order, it might present the question whether the court had abused its discretion in continuing the order. Whether absolute inability, on account of poverty and want of credit, to pay the costs, is in any case a full defence to an application to stay proceedings in his action until the same are paid, it is unnecessary to decide in this case, as the evidence upon which the order was made does not establish that fact. Even in such case we think the court would be justified in granting the order if it appeared that the prosecution was vexatious or without merits; and in a case where it satisfactorily appeared that the plaintiff had a good cause of action, and was prosecuting it in good faith, it is hardly to be anticipated that the court would prohibit his prosecution thereof permanently, by requiring him to pay costs which it was impossible for him to pay. Poverty alone is not a sufficient reason for requiring a plaintiff to give security for costs. Watson v. Frazer, 10 L. J. 1841, 420; Yarmouth v. Mitchell, 2 Dow. & Ryl. 423; Marshall's Reports, 4; Senter v. Carr, 15 N. H. 375.

While poverty alone should not be a sufficient cause for granting a stay of proceedings until costs accrued and due to the opposite party are paid, neither is it a good defence to an application to stay proceedings until costs incurred have

been paid when it appears that the prosecution is vexatious, or not carried on in good faith.

It was held in the court of Kings Bench, in England, that a plaintiff who was prosecuting an action in forma pauperis should have his proceedings stayed until he paid the costs of a former action between the same parties for the same cause, in which he had been nonsuited. Weston v. Withers, 2 Term R. 511, and cases decided in 1788; Haigh v. Paris, 16 L. J. 1847, Exch. 37, decided 1846.

It is almost a universal rule that, when a plaintiff has been nonsuited in an action, he will not be permitted to proceed in another action against the same parties for the same cause until he has paid the costs of the former action. This rule is based upon the presumption that the second action is vexatious, or, if not vexatious, the failure to succeed in the first action was attributable to the fault of the plaintiff, and that it would be unjust to permit him to proceed with the second action until the costs to which the opposite party was put by the first prosecution are paid. The rule as to staying proceedings until costs incurred in the same action and payable to the opposite party are paid is not, perhaps, as well established as the rule in regard to the costs of a former action between the same parties for the same cause. The reasons, however, which induce the courts to stay proceedings in the latter case will apply with more or less force to the former. But courts should, perhaps, be more cautious in applying the rule to the case of costs incurred and payable to the opposite party on a reversal of judgment in favor of a plaintiff than in the case of the commencement of a second suit after failure to prosecute the first to judgment. latter case the failure is very generally attributable to some fault or neglect of the plaintiff, and in the former, the fact that he has prosecuted the case to judgment in his favor is, to say the least, some evidence that he has a cause of action against the delendant, and of the good faith of the plaintiff in prosecuting the same; and the reversal thereof upon appeal may be upon questions that neither impeach the plaintiff's good faith nor tend to show that he has not a meritorious cause of action. The court would hardly be justified, therefore, in staying the plaintiff's proceedings, upon the sole ground that the costs of the appeal were not paid.

In the

Ordinarily there would be no necessity for a stay, as the costs could be collected upon execution, but when the plaintiff has no property which can be seized upon execution, and