¶1In September 1914, Oscar Hilmen, the plaintiff, recovered a judgment against Tobias Nygaard and wife for $5,521 in an action to foreclose a mortgage on both real estate and personal property. An appeal was taken to the supreme court, and, to secure a stay of proceedings, the defendants made to -plaintiff an undertaking whereby they promised to pay any deficiency not exceeding $1,500 which might arise on a sale of the property in case the judgment should be affirmed.
¶2The result was to hold up and stay the proceedings on the judgment for a year. The appeal was dismissed. On October 30, 1915, the *214sale was made. The land sold for $2,000 and tbe personal property for $2,229. Tbe deficiency was $1,795.18.
¶3By answer defendants allege 'tbat, by a mistake of law as to tbe legal effect of tbe undertaking, tbe plaintiff did not with diligence pursue bis remedy against tbe personal property pending tbe appeal. Tbat by not making a sale of tbe personal property pending tbe appeal it depreciated in value and resulted in a deficiency of $1,795.18. Tbat if the property bad been promptly sold there would have been no deficiency. Tbe stay bond was offered, accepted, and filed on November 6, 1914, and it does not appear tbat any objection was made to tbe form or the conditions of tbe same. Tbe manifest purpose and tbe legal effect of tbe bond was to stay all proceedings on the judgment. It was given under tbe statute which provides thus: Comp. Laws 1913, § 7829. “If the judgment appealed from directs tbe sale of mortgaged premises, tbe execution thereof shall not be stayed by tbe appeal, unless an undertaking is executed on tbe part of tbe appellant by at least two sureties, conditioned for tbe payment of any deficiency which may arise on such sale, not exceeding such sum as shall be fixed by tbe court or presiding judge thereof; to be specified in tbe undertaking, and all costs and damages which may be awarded to tbe respondent on such appeal.”
¶4Counsel for appellant insists tbat tbe conditions of the bond should have been for tbe payment- of all damages which tbe opposite party may have sustained by reason of tbe appeal. Section 7831.
¶5Tbe time to have insisted on tbat point was prior to tbe making of tbe bond. In legal proceedings there is a time for all things. Appellants have bad tbe full benefit of tbe stay, and it appears from tbe answer tbe conditions on which they now insist would have increased their liability to tbe full amount of tbe deficiency. Counsel for appellant assign several errors which amount to nothing unless to indicate tbat tbe appeal was taken for delay. Here is a specimen. “There is no evidence showing or tending to show tbat defendants and appellants received any consideration for tbe execution of tbe bond sued upon in this action.” Bure nonsense it is to talk of showing a consideration for a stay bond. Tbe stay is tbe consideration, and it is shown on tbe face of tbe bond.
¶6Tbe judgment appealed from directs tbe sale of mortgaged property, and it was legal and proper tbat tbe conditions of tbe stay bond should *215be for the payinout of any deficiency on a sale of the property, and that condition was entirely favorable to the appellant and the sureties.
¶7The judge who writes this opinion, speaking for himself alone, believes that the defense of tbis action was clearly frivolous, and that tbe appeal was taken for delay, and that in all such cases the judgment should be affirmed with 10 per cent damages.
¶8Judgment affirmed.