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6. A stay of proceedings, from its nature under an appeal, only operates upon orders or judgments commanding some act to be done, and does not reach a case of injunction. Blerced Mining Co. v. Fremont, 7 Cal 132; Hicks v. Michael, 15 Cal. 109.
$ 354. Undertaking may be in one instrument or several.
The undertaking prescribed by sections three hundred and fortyeight, three hundred and forty-nine, three hundred and fifty, and three hundred and fifty-two, may be in one instrument, or several, at the option of the appellant. N. Y. Code, \ 310. $ 355. Justification of sureties on undertaking on appeal.
[1854.] An undertaking upon an appeal shall be of n vrez unless it be accompanied by the affidavit of the sureties, tl are each worth the amount specified therein over and above just debts and liabilities, exclusive of the property exempt fr cution ; except where the judgment exceeds three thousand and the undertaking on appeal is executed by more than t ties, they may state in their affidavit that they are severall amounts less than that expressed in the undertaking, if th: amount be equivalent to that of two sufficient suretie: adverse party may, however, except to the sufficiency of th. ties within five days after the filing of the undertaking, and they or other sureties justify before a Judge of the Court bei a County Judge, or the County Clerk, within five days the : upon notice to the adverse party, to the amount stated affidavits, the appeal shall be regarded as if no such undertaking had been given; and in all cases where an undertaking is required on appeal by the provisions of this chapter, a deposit in the Court below of the amount of the judgment appealed from, and three hundred dollars in addition, shall be equivalent to filing the undertaking; and in all cases the undertaking or deposit may be waived by the written consent of the respondent.
Sec ante, 348; N. Y. Code, 9 311.
1. Time of examination of sureties.-Where a party gave notice of justification of the sureties on an undertaking before the Clerk of the Court below, on the seventh of Novenber, between the hours of ten A. M. and five P. M. of that day, and the sureties appeared upon such notice soon after ten of that day: 1}«ld, that the Clerk acted properly in refusing to take their justification, the opposite party being absent, until the last hour stated in the notice. Lower v. h nož, 10 Cal. 480.
2. Time within which to justify cannot be extended. Where the respondent gave notice, April 20th, excepting to the sufficiency of the surcties
on an undertaking on appeal, and appellant there gave notice that the sureties would justify on the twenty-fifth of the same month, and orders were afterwards made extending the time of justification to May 1st: Held, that the failure of the sureties to justify within tive days after notice of exception to their sufficiency rendered the appeal a nullity: that the statute upon this subject is peremptory; and that the Court had no power to extend the time. Roush v. Van Hagen, 17 Cal. 121.
3. Officers before whom to justify.--Under the three hundred and fiftyfifth section of the Practice Act, where respondent excepts to the sureties on the undertaking on appeal, the sureties must justity before a County Judge of the county where the suit is pending, where that officer is selected, and where such justification was before the County Judge of another county, where the sureties resided, the appeal will be dismissed. Roush v. Van Hlagen, 18 Cal. 668.
4. Failure to justify, effect of.-A failure of sureties upon an undertaking on appeal to justify, when they are excepted to, leaves the appeal as though no undertaking had been filed, and ineffectual for any purpose. Louer v. k nor,
10 Cal. 180. Tire the appellant, on an appeal pending from the District Court to the is the proces bases the tow ourt, nied in the Clerk's
bfice of the District Court luis notice of appeal Esrat de la peau nes aking, and the respondent, within the time allowed by law, excepted to
ney of the sureties to the undertaking, and they failed to justity to the ! And I read it was error in the Judge of said Court to make an order of i of the Clerk of said Court, who issued execution on said judgment:
supersedias, e tyre me dar .
ew undertaking may be filed, &c.-After notice of exception
y cannot justify without notice to the adverse party; and in this case, baba terpan Pellants, within ten days, file a new undertaking, and the surcties thereon
in notice to the respondent. Stark v. Barrett, 15 Cal. 361. List often rights of pare missal of appeal.-An appeal will not be dismissed on the ground eens e Arte tatin ieney in the justitication of the sureties on the undertaking, when the
ig was both to render the appeal effectual and to stay execution, and the in was sufficient for the former purpose. Dobbins v. Dollarhide, 15 Cal.
Undertaking in cases not specified above. Ta 2 pang beses not provided for in sections three hundred and forty-nine,
three hundred and fifty, three hundred and fifty-one, and three hundred and fifty-two, the perfecting of an appeal, by giving the undertaking, and the justification of the sureties thereon, if required, or making the deposit mentioned in section three hundred and fortyeight, shall stay proceedings in the Court below upon the judgment or order appealed from; except that where it directs the sale of perishable property, the Court below may order the property to be sold, and the proceeds thereof to be deposited, to abide the judgment of the Appellate Court.
N. Y. Code, s 342.
1. In an action for personal property, with damages for its detention, the verdict was for defendant, and subsequently the Couit below made an order granting a new trial, from which order defendant appealed to the Supreme Court, giving an undertaking for damages and costs, under the three hundred and forty-eighth section of the Practice Act, and then the Court below, against the objection of defendant, proceeded to try the cause a sccond time, when plaintiff' had verdiet and judgment: 'Hdd, that the judgment must be reversed, because the Court below could not proceed with a second trial until the appeal from the order was determined. Ford v. Thompson, 19 Cal. 118.
2. On appeal from an order granting a new trial, in such a case, the verdict being in favor of the defendant and appellant, undertaking for damages and costs according to the three hundred and forty-eighth section of the Practice Act is sufficient to stay proceedings pending the appeal. Id.
§ 357. Appeals may be brought to a hearing on notice.
[1854.] Appeals in the Supreme Court may be brought to a hearing by either party, upon a notice of three days to the oppo site party. Before the argument, each party shåll furnish to the other, and each of the Justices, a copy of his points and authorities, or either party may file one copy thereof with the Clerk, who shall cause the requisite copies to be made.
1. Where notice of argument has been given by the appellant, the respondent may move for an affirmance of the judgment ex parte, although he has given no notice of argument. Bennett, J. dissenting. Constant v. Ward, 1 Cal. 333.
2. Though a decision of the Supreme Court will not be set aside for want of a formal statutory notice of argument, if the adverse party had actual notice, yet a judgment of attirmance for failure of the appellant to appear will be set aside, if he had not actual notice, etc. Lightstone v. Laurencel, 2 Cal. 106.
3. Where counsel, in a cause pending in the Supreme Court, stipulate to submit the case to the Court on two grounds only, it is a clear waiver of all other assignments of error, and they will not be allowed to go behind such stipulation, and insist upon points other than those mentioned in the stipulation. Cahuan et al. v. Levy, 10 Cal. 216.
$ 358. On judgment on appeal, remittitur shall be certified to the Clerk of the Court below.
When judgment is rendered upon the appeal, it shall be certified by the Clerk of the Supreme Court to the Clerk with whom the judgment roll is filed, or the order appealed from is entered. In cases of appeal from the judgment, the Clerk with whom the roll is filed shall attach the certificate to the judgment roll, and enter a minute of the judgment of the Supreme Court on the docket against the original entry. In cases of appeal from an order, the Clerk shall enter at length in the records of the Court the certificate received, and minute against the entry of the order appealed from a reference to the certificate, with a brief statement that such
a order has been affirmed, reversed or modified, as the case may be, by the Supreme Court, on appeal.
1. The Court below cannot refuse to give effect to the judgment of this Court; and a judgment entered by the Clerk, in such case, is just as binding as if entered in the Supreme Court itself. McMillan v. Richards, 12 Cal. 467.
2. Where a case is appealed from the District Court to the Supreme Court, and the Supreme Court reverses the judgment of the District Court, and directs the entry of a final judgment, such judgment can be entered by the Clerk of the District Court in the vacation. Id.
3. The act of the Clerk in entering the judgment is a mere ministerial act. Id.
CHAPTER III.— Appeals to the Supreme Court from the County
Sec. 359. Appeal may be taken from County Court, in certain
360. Security on appeal shall be the same as provided in
$ 359. Appeal may be taken from County Court, in certain See. 359. An appeal may be taken to the Supreme Court from a final judgment of the County CourtFirst-In Vactions of forcible entry and detainer, in an action to prevent or abate a nuisance
; int y be taken to the Supreme Court proceeding in insolvency in an action wherein the legality of any tax, impost, assessment, toll or muni
Court, in all cases where the cipal fine is in question, and in any special case within the appellate jurisdiction of the Supreme Court over Indred dollars, or where the legalwbich the Legislature may require said County Court to exercise jurisdiction. Second–From an order grant nunicipal fine, is in question. ing or refusing a new trial; from an order granting or dissolving, or an order refusing to grant or dissolve an , a County Court to the Supreme Court, injunction; and from any special order made after final judgment in the cases in tbis section before enuia
dleton v. Gould et al., 5 Cal. 190. sec. 360. Security shall be given upon such appeal in ed by the statute, should be made in the
has no jurisdiction in cases on appeal, the same manner, to the same extent and with the District Court from judgments or orders of a similar Fame effect as in appeals to the Snpreme Court from the e question here. Howard v. Ilarmon, 5 character,
and like justification on the part of the thin the proper time, it is the duty of the presiding Judge to hear the excuse or we party failing to produce it, and if sufficient, to allow him to file a bond. Id.
4. Where a party appealed from a Justice's Court to a County Court, and the Justice neglected to send up with the record the notice of the appeal : Held, that it was error to refuse to allow appellant the opportunity of moving to compel the Justice to send it up, by peremptorily dismissing the appeal. Sherman v. Rolberg, 9 Cal. 17.
5. The Supreme Court has jurisdiction to hear and determine appeals from the judgment of the County Court, on question of frand made on the petition of an insolvent for a discharge from his debts. Fisk v. Ilis Creditors, 12 Cal. 281.
6. A refusal by the County Court, on appeal from a Justice, to permit an amendment of the complaint, is matter of discretion, and there being no athidavit of materiality, nor any showing of the importance of the amendment, this Court will not interfere. Canfield v. Bates, 13 Cal 606.
7. Where, in an action of forcible entry and detainer, the judgment is for the possession of the premises, and ninety-four dollars, treble damages, besides costs -the title not being involved—query, whether the Supreme Court has jurisdiction of an appeal from the County Court. Paul v. Silver, 16 Cal. 73.
8. No appeal will lie from a judgment for two hundred dollars, costs and per centage. The amount must exceed two hundred dollars--that is, the amount in dispute-costs and percentage are only incidental to the action. Zabriskie v. Terry;
Reese et al., 20 Cal.
§ 360. Security on appeal shall be the same as in preceding chapter.
[1854.] Security shall be given upon such appeal in the same
APPEALS FROM PROBATE COURTS. [SS 361-363 andmih ine caure effect manner and to the same extent as well as appealsto the Supreme Court from the District Courty and like justification on the part of the sureties may be required.
See ante, ( 348 to 356, inclusive, and notes.
§ 361. Appeal may be brought to a hearing on notice.
(1854.] Appeals from the County Courts shall be brought to a hearing in the same manner, and upon like notice, as appeals from the District Court.
See ante, 357 and notes.
§ 362. Appellant shall furnish papers on appeal.
(1853, 1854.] The appellant shall furnish the papers for the Supreme Court in the same manner as upon appeals from the District Court.
CHAPTER IV.*- Appeals to the District Courts from the Probate
Sec. 363. Appeals may be taken from Probate Court.
364. Time within which appeal shall be taken.
§ 363. Appeals may be taekn from Probate Court.
* STATUTES OF 1855, 301; WOOD'S DIGEST, 421, ARTICLE 2354. SEC. 297. (1861.) An appeal may be taken to the Supreme Court from an order, decree or judyinent of the Probate Court, where the estate or amount in dispute exceeds two hundred dollars, in the following cases:
1st. For or against granting or revoking letters testamentary or of administration, or of guardianship;
20. For or against admitting a will to probate;
7th. For or against declaring, allowing or directing the payment of a debt, claim, legacy or distributive share.
SEC. 293. (1855.] The appeal may be taken within sixty days after the order, decree or judgment is made and entered in the minutes of the Court; it shall be made by filing with the Clerk of the Probate Court a notice, stating the appeal from the order, decree or judg. ment, or some specific part thereof, and by executing an undertaking, or giving surety, on such appeal in the same manner, and to the same extent, as upon an appeal to the Supreme Court nrom the District Court; provided, the appeal of an executor or administrator who has given an official bond shall be complete and effectual without the undertaking: provided also, from an order, decree or judgment, made since the first day of October, eighteen