overruled the demurrer and on appeal to this court the complaint was held to be sufficient. Langer v. The Courier News, et al., 179 N. W. 909. Subsequently the defendants moved for a change of venue from the county of Cass. An order was accordingly entered transferring the case to Richland county for trial. Afterwards defendants made an application for a change of venue from Richland county. The District Court of Richland county denied the application for a change of venue. The defendants appealed from such order by serving and filing notice of appeal and the usual cost bond. It is undisputed that an application similar to that now made to this court was pending before the district court at the time the application to this court was made. The application was made to this court and the order to show cause issued June 22d. It is undisputed that an application was served June 21st and noticed to be heard before the District Court of Richland county on June 23d. There is no showing that the trial judge has neglected or refused to act on the application. On the contrary, on the hearing in this court the trial judge filed a verified return, wherein he says: “That the matter of granting or refusing a stay of proceedings pending said appeal was never in any proper or formal way presented to him * * * that he knew of the pendency of said motion returnable on June 23d, 1921; that he expected to hear such motion and after the same had been heard to determine the same on the merits * * * that he has not yet determined such motion and that the defendants’ application for a stay of proceedings has not been denied * * * that he had no intention of trying the said cause or permitting the same to be tried until after the defendants’ said motion for a stay of proceedings had been fully heard and determined.”
Upon the hearing before this court, respondent’s counsel urged that it was for the trial court in the first instance to say whether the stay should be granted and that this court is vested with authority only to review the decision of the trial court. In our opinion this objection is well taken, where, as in this case, it appears that the trial court has not refused to act. § 7832, C. L. 1913, provides:
“When the appeal is from an order the execution or performance thereof shall not be delayed, except upon compliance with such conditions as the court or presiding judge thereof shall direct, and, when so required, an undertaking sha]l be executed on the part of the appellant by at least two sureties in such sums and to such effect as the court or presiding judge thereof shall direct; such effect shall be directed in
