§ 347. When an appeal may be taken.

[1854.] An appeal may be taken to the Supreme Court from the District Courts, in the following cases:

1st. From a final judgment rendered in an action or special proceeding commenced in those Courts, or brought into those Courts from another Court;

2d. From an order granting or refusing a new trial; from an order refusing to change the place of trial of an action or proceeding after a motion is made therefor, in the cases provided by law, or on the ground that a Judge is disqualified from hearing or trying the same; from an order granting or dissolving an injunction; and from any special order made after final judgment.

See N. Y. Code, § 341.

For definition of

1-9, § 336.

'final judgment” and “order," see ante, page 188, Nos.

See also as to definition of "order" post, § 515.

1. An appeal will lie.-From a judgment or order putting a party in contempt. Ex parte Rowe, 7 Cal. 175; Ware v. Robinson, 9 Cal. 107.

2. From an order improperly dissolving an attachment. Reiss v. Brady, 2 Cal. 132, but not until after final judgment. Baker v. Rosenthal, 7 Id. 514.

3. From an order setting aside a final decree in equity and granting a rehearing. Riddle v. Baker, 13 Cal. 295.

4. From an order changing the judgment. Bryan v. Berry, 8 Cal. 130.

5. From an order refusing to quash an execution. Gilman v. Contra Costa County, 8 Cal. 52.

6. From error of law excepted to, an appeal lies without motion for new trial. Rice v. Gashirie, 13 Cal. 53.

7. An appeal lies from an order setting aside a final decree in equity and granting a rehearing, as it is in effect granting a new trial. Riddle v. Baker, 13 Cal. 302. 8. In suit by a stockholder against a corporation and its officers, praying for their removal, and for an account and settlement of the affairs of the corporation, the decree, after a full hearing on the merits, was in accordance with the prayer; and also appointed a receiver to take charge of the property of the corporation until the further order of the Court; collect money due or to become due it; sell certain stock, and pay the proceeds in accordance with the decree, etc.: Held, that this provision in the decree does not destroy its effect as a final decree, and that an appeal lies therefrom. Neall v. Hill, 16 Cal. 145.

9. Pease, who had instituted a suit in the Supreme Court of New York against defendants, moved the Fourth District Court of this State, where the suit of Adams v. Woods et al. was pending, for an order on Naglee-receiver in this last suit, and as such having in his possession the books of the firm-to attach certain of those books to his deposition to be taken under commission from New York in the suit there. The Court below ordered the books to be delivered to Wells, Fargo & Co, to be by them taken to New York, and after being used on the trial in Peasc's suit, to be returned to Naglee: Held, that this intervention by Pease is in effect a special proceeding, involving new and distinct rights, and that the order is not interlocutory, and may be appealed from. Adams v. Woods, 18 Cal. 30.

10. An appeal to a demurrer for want of proper parties is good, where it is determined by the Court that a substantial right is affected by the omission to join such party. Burgoyne v. Holmes, 3 Cal. 50.

11. Under the act regulating appeals, passed the twenty-sixth of April, 1851, an appeal lies from every order and decision of an inferior Court which affects a substantial right. Id.

22. From an interlocutory order, except in the cases provided by statute. order can only be reviewed on appeal from the final judgment. De Barry v. Lambert, 10 Cal. 503.

23. An appeal will not lie from an order of Court refusing to set aside an interlocutory judgment. It should be taken upon the order itself. Stevens v. Marvin, 3 Cal. 376.

24. By the amended Practice Act, an appeal does not lie from an interlocutory order. The People v. Thurston, 5 Cal. 517.

25. Appeals from interlocutory orders are the creations of statute, and cannot be extended by implication. Juan v. Ingoldsby, 6 Cal. 439.

26. An order setting aside the report of a referee appointed to take an account, is merely interlocutory, and is not the subject of appeal before final judgment or decree. Johnson v. Dopkins, 6 Cal. 83.

27. An order refusing to issue a commission to take testimony, and an order refusing to change the venue, are not appealable orders, though they may be reviewed on appeal from final judgment. People v. Stillman, 7 Cal. 117.

28. This Court will not hear any objections to an order entered in the Court below by consent of parties. Merholz v. Sessions, 9 Cal. 277.

29. An order setting aside the findings of a referee in a divorce case, and sending the case back to the referee for further testimony, is interlocutory in its character and not the subject of appeal. Baker v. Baker, 10 Cal. 527.

30. Lien of the judgment suspended by an appeal.-An appeal from a judgment suspends the lien, which is merely an incident; and the statutory limitation of the lien commences to run only from the date of the remittitur from the appellate Court. Dewey v. Latson, 6 Cal. 130.

31. If an undertaking on appeal to the Supreme Court be insufficient in amount to stay proceedings, the lien of the judgment is not extended by the appeal beyond two years from the time of its docketing; and this, where the undertaking was excepted to, there being no effort to enforce the judgment pending the appeal. Chapin v. Mastick & Broder, 16 Cal. 403.

32. Generally.-Where the parties in the Court below stipulated that a motion for a new trial should be denied, they cannot question, in this Court, the correctness of an order denying such motion. Brotherton v. Hart, 11 Cal. 405. 33. A party cannot be permitted to prosecute two separate and distinct remedies in the Supreme Court for a review of the same question at the same time. Kirk v. Reynolds, 12 Cal. 99.

34. No appeal lies to the Supreme Court from an order of the Court below overruling a demurrer to an indictment. People v. Ah Fong, 12 Cal. 424.

35. A party cannot appeal from an order overruling a motion for a new trial, when he fails to prosecute his motion before the District Court, especially when the case involved complicated facts, and was not tried by the Judge, but by a ref

[Takes effect sixty days after passage.]

§ 347. An appeal may be taken to the Supreme Court fi the District Courts in the following cases:

First-From a final judgment rendered in an action or special proceeding commenced in those Courts, or brought into those Courts from other Courts.

Second-From an order granting or refusing a new trial, from an order granting or dissolving an injunction, and from an order refusing to grant or dissolve an injunction, and from any special order nade after final judgment.

See N. Y. Code, § 341.

For definition of "final judgment" and "order," see ante, page 188, Nos. 1-9, § 336.

See also as to definition of "order" post, § 515.

1. An appeal will lie.-From a judgment or order putting a party in contempt. Ex parte Rowe, 7 Cal. 175; Ware v. Robinson, 9 Cal. 107.

2. From an order improperly dissolving an attachment. Reiss v. Brady, 2 Cal. 132, but not until after final judgment. Baker v. Rosenthal, 7 Id. 514.

3. From an order setting aside a final decree in equity and granting a rehearing, Riddle v. Baker, 13 Cal. 295.

4. From an order changing the judgment. Bryan v. Berry, 8 Cal. 130.

5. From an order refusing to quash an execution. Gilman v. Contra Costa County, 8 Cal. 52.

6. From error of law excepted to, an appeal lies without motion for new trial. Rice v. Gashirie, 13 Cal. 53.

7. An appeal lies from an order setting aside a final decree in equity and granting a rehearing, as it is in effect granting a new trial. Riddle v. Baker, 13 Cal. 302. 8. In suit by a stockholder against a corporation and its officers, praying for their removal, and for an account and settlement of the affairs of the corporation, the decree, after a full hearing on the merits, was in accordance with the prayer; and also appointed a receiver to take charge of the property of the corporation until the further order of the Court; collect money due or to become due it; sell certain stock, and pay the proceeds in accordance with the decree, etc.: Held, that this provision in the decree does not destroy its effect as a final decree, and that an appeal lies therefrom. Neall v. Hill, 16 Cal. 145.

9. Pease, who had instituted a suit in the Supreme Court of New York against ⚫ defendants, moved the Fourth District Court of this State, where the suit of Adams v. Woods et al. was pending, for an order on Naglee-receiver in this last suit, and as such having in his possession the books of the firm-to attach certain of those books to his deposition to be taken under commission from New York in the suit there. The Court below ordered the books to be delivered to Wells, Fargo & Co, to be by them taken to New York, and after being used on the trial in Pease's suit, to be returned to Naglee: Held, that this intervention by Pease is in effect a special proceeding, involving new and distinct rights, and that the order is not interlocutory, and may be appealed from. Adams v. Woods, 18 Cal. 30.

10. An appeal to a demurrer for want of proper parties is good, where it is determined by the Court that a substantial right is affected by the omission to join such party. Burgoyne v. Holmes, 3 Cal. 50.

11. Under the act regulating appeals, passed the twenty-sixth of April, 1851, an appeal lies from every order and decision of an inferior Court which affects a substantial right. Id.

machinery with which to proseI. and in the meantime are insert; ng to the depth attained. Upon

APPEALS FROM DISTRICT COURTS.

381

the machinery operations will begal will lie.-From an order refusing an injunction. Richards ith vigor, the company baring full al. 422.

f success. For the Irwin Davis rder refusing to dissolve an injunction. It should be from the below the Fortuna, on Bear river, injunction. Martin v. Travers, 7 Cal. 253.

ed and sixteen feet deep, a steam

soon be sent up, and the work of order refusing or granting a change of venue.

he claim be again renewed.

39.

Id.; Juan v. Igment of nonsuit entered on motion of plaintiff. 6 Cal. 666. 16. From an order made before final judgment refusing to transfer a cause from & District Court of this State to a Court of the United States, because of the alienage of defendant. Hopper v. Kalkman, 17 Cal. 517; Brooks v. Calderwood, 19 Id. 124.

17. From an order refusing to set aside a former order. Henly v. Hastings, 3 Cal. 341; Horn v. Volcano W. Co., 18 Cal. 141.

18. From a mere decision on demurrer before final judgment. Moraga v. Emeric, 4 Cal. 308.

19. From an order making a new party defendant. Beck v. City of San Francisco, 4 Cal. 375.

20. From an order refusing to grant a commission to take testimony. People v. Stillman, 7 Cal. 117.

21. From an order refusing to discharge an attachment until after final judgment. Baker v. Rosenthal, 7 Cal. 514.

22. From an interlocutory order, except in the cases provided by statute. Such order can only be reviewed on appeal from the final judgment. De Barry v. Lambert, 10 Cal. 503.

23. An appeal will not lie from an order of Court refusing to set aside an interlocutory judgment. It should be taken upon the order itself. Stevens v. Marvin, 3 Cal. 376.

24. By the amended Practice Act, an appeal does not lie from an interlocutory order. The People v. Thurston, 5 Cal. 517.

25. Appeals from interlocutory orders are the creations of statute, and cannot be extended by implication. Juan v. Ingoldsby, 6 Cal. 439.

26. An order setting aside the report of a referee appointed to take an account, is merely interlocutory, and is not the subject of appeal before final judgment or decree. Johnson v. Dopkins, 6 Cal. 83.

27. An order refusing to issue a commission to take testimony, and an order refusing to change the venue, are not appealable orders, though they may be reviewed on appeal from final judgment. People v. Stillman, 7 Cal. 117.

28. This Court will not hear any objections to an order entered in the Court below by consent of parties. Merholz v. Sessions, 9 Cal. 277.

29. An order setting aside the findings of a referee in a divorce case, and sending the case back to the referee for further testimony, is interlocutory in its character and not the subject of appeal. Baker v. Baker, 10 Cal. 527.

30. Lien of the judgment suspended by an appeal.—An appeal from a judgment suspends the lien, which is merely an incident; and the statutory limitation of the lien commences to run only from the date of the remittitur from the appellate Court. Dewey v. Latson, 6 Cal. 130.

31. If an undertaking on appeal to the Supreme Court be insufficient in amount to stay proceedings, the lien of the judgment is not extended by the appeal beyond two years from the time of its docketing; and this, where the undertaking was excepted to, there being no effort to enforce the judgment pending the appeal. Chapin v. Mastick & Broder, 16 Cal. 403.

32. Generally.-Where the parties in the Court below stipulated that a motion for a new trial should be denied, they cannot question, in this Court, the correctness of an order denying such motion. Brotherton v. Hart, 11 Cal. 405. 33. A party cannot be permitted to prosecute two separate and distinct remedies in the Supreme Court for a review of the same question at the same time. Kirk v. Reynolds, 12 Cal. 99.

34. No appeal lies to the Supreme Court from an order of the Court below overruling a demurrer to an indictment. People v. Ah Fong, 12 Cal. 424.

35. A party cannot appeal from an order overruling a motion for a new trial, when he fails to prosecute his motion before the District Court, especially when the case involved complicated facts, and was not tried by the Judge, but by a ref

eree, by whom the alleged errors were committed. The failure to prosecute, in such a case, is an abandonment of the motion. Mahoney v. Wilson, 15 Cal. 43; Frank v. Doane, 15 Id. 303; Green v. Doane, Id. 304.

36. Where an order is made granting a writ of assistance, and an order is also made refusing to set the first order aside, an appeal must be taken from the last order. Id.

37. Where a party resorts to a summary remedy by motion to set aside an order, and has tried the motion on the merits, he cannot fall back and seek to reverse the order by a direct appeal. Horn v. Volcano Water Co., 18 Cal. 141.

§ 348. Appellant shall file undertaking within five days. To render an appeal effectual for any purpose, in any case, a written undertaking shall be executed on the part of the appellant, by at least two sureties, to the effect that the appellant will pay all damages and costs which may be awarded against him on the appeal, not exceeding three hundred dollars; or that sum shall be deposited with the Clerk with whom the judgment or order was entered, to abide the event of the appeal. Such undertaking shall be filed, or such deposit made, with the Clerk within five days after the notice of appeal is filed.

See post, § 355; N. Y. Code, § 334.

1. Execution and formal parts of undertaking.-Under our statutes, undertakings are on the same footing with bonds. Canfield v. Bates, 13 Cal. 606.

2. The execution of the paper, the delivery of it to the Clerk, filing it among the papers with the affidavit, and the actual suspension of proceedings, is prima facie a sufficient proof of delivery, if delivery is essential, as if the instrument were sealed. Dore v. Covey, 13 Cal. 502.

3. The stay of proceedings, accorded by the statute to the execution of the undertaking, is a sufficient consideration. Id.

4. Where an instrument, purporting to be a bond on appeal, contains words of obligation, and has a scroll opposite the name of one of the two signers, who cotemporaneously verify the instrument as their bond, it is the bond of both. Canfield v. Bates, 13 Cal. 606.

5. Where the appeal is bona fide, and not taken for delay, appellate Courts will always permit a new undertaking to be filed where the original is defective. Coulter v. Stark, 7 Cal. 244.

6. Where an appeal has been dismissed for want of a proper bond, and no final judgment has been rendered, an appeal can be taken at any time within the period allowed by law. Martinez v. Gallardo, 5 Cal. 155.

7. Residence of the sureties, and their occupation, and that the penalty must be double the amount of the judgment, are directory provisions, and are intended for the benefit of the other party, and he may waive them. In this case the respondent treated the appeal as regularly made; made no motion to dismiss, issued no execution, and suffered the undertaking to have the full effect of a regularly executed instrument. Dore v. Covey, 13 Cal. 502; Dobbins v. Dollarhide, 15 Cal. 375.

8. The names of the sureties need not appear in the body of the papers. Id. 9. The statute requires the places of residence and occupation of the sureties to be stated in an undertaking on appeal only when a stay of execution upon a judgment directing the payment of money is sought. Dobbins v. Dollarhide, 15 Cal. 374.

10. The omission of the words "to pay to" will not invalidate the obligation of an appeal bond. Even were this not the case, where such an omission occurs, leave should be granted to file a good bond. · Billings v. Roadhouse, 5 Cal. 71.

11. An undertaking on an appeal is an independent contract on the part of the