§ 503. UNDERTAKINGS ON APPEAL.

FORM No. 1233—Undertaking for costs and damages [or charges] on appeal. (California, C. C. P. § 940; Minnesota, C. C. P. § 4356; Montana, C. C. P. § 1725; Nevada, § 3436; North Dakota, § 7208; South Dakota, C. C. P. § 445; Utah, C. C. P. § 3306; Washington, C. C. P. § 1721; Wisconsin, C. C. P. § 3052.)

the above-named plaintiff

*

within and for the county of recovered a judgment against the above-named defendant for $ damages and costs. [Or otherwise briefly state the nature of the judgment.]

And the said defendant, L. M.,1 feeling aggrieved thereby, intends to appeal therefrom to the supreme court of the state of : Now, therefore, we, A. B. and C. D., of the city of in said county, do hereby undertake that the said appellant will pay all costs and damages [or costs and charges, as in Minnesota statute] which may be awarded against him on said appeal, or on dismissal thereof, not exceeding three hundred dollars. [In Washington, two hundred dollars; in Minnesota, North Dakota, South Dakota, and Wisconsin, two hundred and fifty dollars.]

[Date.]

A. B.

C. D.

[Justification as in form No. 1234, or as in form No. 1243, and acknowledgment, where required, as in form No. 1235.]

FORM No. 1234-Justification of sureties upon undertaking. (Common form.) [Venue.]

A. B. and C. D., being first duly sworn, each for himself says: That he is one of the subscribers to the foregoing undertaking; that he is a resident and freeholder within the state of and is worth the sum of $ , specified in the within undertaking, over and above all his debts and liabilities, in property within the state of not by law [or exclusive of his property] exempt from

execution.

A. B.

[Jurat.]

C. D.

1 As to the appellant not required to join in the undertaking, except where the statute so provides, see annotations to this chapter, paragraph 36, p. 1937.

FORM No. 1235-Acknowledgment of undertaking. (Under statutes requir

[Venue.]

On this

ing acknowledgment.)

day of 19 before the undersigned, a notary public in and for said county and state, personally appeared A. B., and C. D., known to me to be the persons who executed the within and foregoing instrument, and acknowledged to me that they executed the same as their free act and deed. [Or, otherwise, setting forth the words of the statute relating to the form or substance of acknowledgments.]

[Seal.]

E. F., Notary Public.

FORM No. 1236-Undertaking by surety corporation.

[Title of action in trial court.]

[After preliminary matter, designating the judgment, etc., as in the particular case required, continue as follows:]

Now, therefore, in consideration of the premises, the undersigned [naming the corporation], a corporation duly organized and doing business under and by virtue of the laws of the state of , and duly licensed therein for the purposes of making, guaranteeing, and becoming sole surety upon bonds and undertakings, does hereby undertake [etc., as in form No. 1233, for costs; or as in form No. 1237, where stay of execution is asked, etc.]. [Date.]

By

S. D. Co.

, Attorney in fact [or other authorized officer]. Attest: By

[Acknowledgment by the officers executing as such.]

Agent.

Under the statutes, the qualifying of a surety company before a license is issued generally serves in lieu of justification upon each particular bond.

FORM No. 1237—Undertaking on appeal, to stay execution of money judg ment.

[Title of court and cause.]

Whereas, in the above-entitled action appealed to the supreme court of the state of from a judgment [or designating an appealable order] made and entered against in said action, in the said superior court, in favor of the

in said action, on the 19, for [here state amount for which judg

day of

ment was rendered, etc.], costs of suit and

:

[Here insert provision as to costs and damages, as in form No. 1233, second and third paragraphs.]

And whereas, the appellant is desirous of staying the execution of the said so appealed from, we do further, in consideration thereof and of the premises, jointly and severally undertake and promise, and do acknowledge ourselves further jointly and severally bound in the further sum of $ being double the amount named in said [or state the penal amount of the bond as otherwise prescribed by the statute, or as fixed by the court]; that if the said appealed from, or any part thereof, be affirmed, or the appeal dismissed, the appellant shall pay the amount directed to be paid thereby, or any part of such amount as to which the same shall be affirmed, if affirmed only in part," and all damages and costs which shall be awarded against the appellant upon the appeal, or on a dismissal thereof, and that if said appellant does not make such payment within days of the filing of the remittitur from the supreme court in the said superior court, judgment may be entered, on motion of the respondent, in his favor, against the sureties hereto for such amount, together with the interest that may be due thereon, and the damages and costs which may be awarded against the appellant upon said appeal.

[Date.]

[Signatures of sureties.]

[Seals.]

[Annex acknowledgment if required, and justification of sureties. See forms Nos. 1234, 1235, and 1243.]

FORM No. 1238—Undertaking on appeal from judgment directing the pay. ment of money in instalments.

[Title of court and cause.]

[After setting forth the provisions in the preceding form, insert between the stars (**) the following:]

we do also jointly and severally undertake that the appellant will pay each instalment of said judgment which becomes payable pending such appeal, or the part thereof as to which such judgment is affirmed, not exceeding the sum of $ [And so on, modifying "payment" to "each of said payments" (or instalments) in the concluding clauses.]

A. B.

C. D.

[Acknowledgment where required, and justification of sureties.]

FORM No. 1239-Undertaking where judgment directs delivery of documents or other personal property.

[Title of action in trial court.]

[Proceed as in form No. 1233 to the star (*) and continue:] wherein it was adjudged that the said defendant assign [or deliver] to the plaintiff certain documents in said judgment described [or deliver to the plaintiff certain personal property in said judgment described], and recover the sum of $ ; and the said defendant,

being aggrieved thereby, intends to appeal to the supreme court of the state of

of

Now, therefore, we, A. B. and C. D., of in the said county do hereby undertake that the said appellant will pay all

;

costs and damages [or charges, where so worded by statute] which may be awarded against him on said appeal, not exceeding $ and do also further undertake in the sum of $ statutory amount, or the amount directed by the judge of said court] that the appellant will obey the order of the appellate court on the

[being the

appeal.

[Date.]

A. B.

C. D.

[Acknowledgment, if required, and justification of sureties as in form No. 1234.]

FORM No. 1240-Undertaking where judgment directs sale or delivery of real property.

[Title of action in trial court.]

[Proceed as in form No. 1233 to the star (*) and continue:] wherein the sale [or delivery of the possession] of certain real property therein described was directed and adjudged, and the defendant, feeling aggrieved thereby, intends to appeal to the supreme court of the state of

:

Now, therefore, we, A. B. and C. D., both of county of

in the said

do hereby undertake that the said appellant will pay all costs that may be awarded against him on said appeal, not exceeding $ and do also undertake, in the sum of $ [being the amount as ascertained by statute, or the amount directed by the judge of said court,] that during the possession of such property by the appellant he will not commit or suffer to be committed any waste thereon, and that if the judgment be affirmed he will pay

the value of the use and occupation of the property from the time of the appeal until the delivery of the possession thereof pursuant to the judgment.

[Date.]

A. B.

C. D.

[Acknowledgment, if required, and justification of sureties as in form No. 1234.]

FORM No. 1241-Undertaking where appeal is had from an order vacating writ of attachment or injunction.

[Title as in trial court.]

Whereas, an order was made in this action on the

day of

19 vacating [or modifying] the writ of attachment issued in this action [or denying, dissolving, or modifying an injunction herein], from which order the plaintiff has given due notice of appeal:

$

Now, therefore, we, A. B. and C. D., both of the city of

County, state of

in

do hereby undertake, in the sum of

, being double the amount claimed by the appellant, [or, otherwise, ascertained under the statute, or the amount directed by the judge of said court,] that if the said order appealed from, or any part thereof, be affirmed, the appellant will pay all costs and damages which may be awarded against him on the appeal, and all which the defendant may sustain by reason of the continuance of said attachment [or by the granting or continuance of said injunction]. [Date.]

A. B.

C. D.

[Add acknowledgment, if required, and justification of sureties as in form No. 1234.]

§ 504. PROCEEDINGS FOR WRITS OF ERROR IN CERTAIN STATE

Wherefore, in the record and proceedings, and also in the rendition of judgment, in a suit which was duly tried in the

court of the