Prac. Act, sec. 333. En. April 29, 1851. Am'd. 1854, 64.

Cal.Rep.Cit. 3, 249; 8, 301; 29, 462.

Prac. Act, sec. 338.

En. April 29, 1851.

Am'd. 1863, 644.

Prac. Act, sec. 342. En. April 29, 1851. Am'd. 1864, 247.

Cal.Rep.Cit. 8, 619; 45, 44.

Prac. Act, sec. 343. Cal.Rep.Cit. 17, 514; 41, 442; 41, 443;

Prac. Act, sec. 344.

En. April 29, 1851.
22, 362; 28, 163;
45, 44; 45, 90.

En. April 29, 1851.

Cal.Rep.Cit. 24, 448; 28, 297.

Am'd. 1854, 64. 33, 554; 33, 678;

Judgments and orders, appeal from: Sec. 939.

§ 937. Orders made out of court, without notice, may be reviewed by the judge. An order made out of court, without notice to the adverse party, may be vacated or modified without notice, by the judge who made it; or may be vacated or modified on notice, in the manner in which other motions are made. En. March 11, 1872.

Cal.Rep.Cit. 68, 401; 72, 276; 72, 552. Prac. Act, sec. 334. Cal.Rep.Cit. 9, 19; 72, 276.

72, 271; 72, 272; 72, 273; 72, 275;

En. April 29, 1851.

12, 448; 33, 390; 33, 391; 72, 373;

Orders, generally: Secs. 1003 et seq.

§ 938. Party aggrieved may appeal. Names of parties. Any party aggrieved may appeal in the cases prescribed in this title. The party appealing is known as the appellant, and the adverse party as the respondent. En. March 11, 1872.

Cal.Rep.Cit. 53, 745; 55, 311; 56, 626; 83, 422; 83, 564; 83, 565; 88, 49; 117, 239; 118, 503; 127, 452.

73, 96; 79, 249;

98, 605; 102, 260;

Prac. Act, sec. 335. En. April 29, 1851.
Cal.Rep.Cit. 38, 640.

Death of party, effect of: Ante, sec. 385.

§ 939. Within what time appeal may be taken. An appeal may be taken:

1. From a final judgment in an action or special proceeding commenced in the court in which the same is rendered, within six months after the entry of judgment. But an exception to the decision or verdict, on the ground that it is not supported by the evidence, cannot be reviewed on an appeal from the judgment, unless the appeal is taken within sixty days after the rendition of the judgment;

2. From a judgment rendered on an appeal from an inferior court, within ninety days after the entry of such judgment;

3. From an order granting or refusing a new trial; from an order granting or dissolving an injunction; from an order refusing to grant or dissolve an injunction; from an order appointing a receiver; from an order dissolving or refusing to dissolve an attachment; from an order granting or refusing to grant a change of the place of trial; from any special order made after final judgment; from an interlocutory judgment, order or decree hereafter made or entered in any action to redeem real or personal property from a mortgage thereof, or lien thereon determining such right to redeem and ordering an accounting; from an interlocutory judgment in actions for partition of real property; and from an order confirming, changing, modifying, or setting aside the report, in whole or in part, of the referees in actions for partition of real property in the cases mentioned in section seven hundred and sixtythree of this code, within sixty days after the order of [or] interlocutory judgment is made and entered in the minutes of the court, or filed with the clerk. En. March 11, 1872. Am'd. 1880, 61; 1897, 55; 1899, 7.

Cal. Rep.Cit. 49, 108; 52, 652; 60, 421; 64, 611; 66, 137;

67, 200; 69, 204;
84, 533; 89, 521;
118, 484; 118, 485;
137, 309; 137, 310;

Subd. 146, 546;
60, 572; 61, 334;
76, 354; 77, 526;

72, 193; 80, 169; 90, 327; 108, 454; 119, 440; 120, 236; 137, 361; 137, 371;

53, 745;

81, 215; 84, 532; 110, 174; 116, 72; 133, 248; 137, 308; 138, 690; 138, 726.

52, 623;
65, 221;

71, 302;

87, 412;
111,
2;
123, 510;
133, 108.

89, 100; 90, 5; 99, 178; 106, 150; 107; 52; 111, 635; 113, 374; 117, 228; 119, 159; 122, 156; 127, 523; 128, 141; 129, 46; 129, 201; 131, 325; Subd. 352, 77; 53, 26; 53, 632; 57, 634; 62, 545; 63, 233; 65, 221; 65, 501; 71, 400 99, 410; 101, 584; 106, 145 127, 419; 129, 46; 130, 181; 130, 509 132, 341; 133, 108; 133, 365; 134, 122;

71, 518; 77, 611; 110, 57; 125, 16; 131, 279; 132, 325; 137, 56.

Prac. Act, sec. 336.

64, 611;

91, 356;

En. April 29, 1851. Am'd. 1854, 64;

on appeals: See sec. 951, post.

Appeals, to supreme court: Post, secs. 963-966; to superior court: Post, secs. 974-980.

Definition of judgment: Sec. 577; exceptions, need of: Secs. 646, 956.

As to appeal from judgment on controversy submitted without action: Post, sec. 1140.

Orders reviewable on appeal from judgment: Post, sec. 956.

§ 940. Appeal, how taken. An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice stating the appeal from the same, or some specific part thereof, and serving a similar notice on the adverse party or his attorney. The order of service is immaterial, but the appeal is ineffectual for any purpose unless within five days after service of the notice of appeal, an undertaking be filed, or a deposit of money be made with the clerk, as hereinafter provided, or the undertaking be waived by the adverse party in writing. En. March 11, 1872. Am'd. 1873-4, 336.

109, 603; 111, 430; 112, 149; 112, 632; 114, 42; 116, 494; 122, 389; 124, 543; 128, 243; 129, 158; 129, 190; 130, 61 130, 554; 131, 289; 132, 198; 132, 253; 133, 362; 133, 363; 134, 179; 134, 181; 134, 460; 137, 375.

Prac. Act, sec. 337. Cal.Rep.Cit. 15, 384; 30, 183; 30, 184; 115, 384.

Service of papers:

En. April 29, 1851.

24, 97; 24, 98; 25, 355; 29, 463; 38, 640; 39, 151; 60, 282; 62, 517;

Secs. 1010-1017.

Notice, generally: Post, secs. 1010 et seq.

Undertaking on appeal, requirements of: Post, sec. 941; unnecessary, when: Post, secs. 965, 1058; exception to sureties, time for: Ante, sec. 648.

Exceptions, necessity for: Ante, sec. 646, post, sec. 956. As to the practice on appeals in criminal causes: See Pen. Code, secs. 1237 et seq.

§ 941. Undertaking or deposit on appeal. The undertaking on appeal must be in writing, and must 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, or on a dismissal thereof, not exceeding three hundred dollars; or that sum must be deposited with the clerk with whom the judgment or order was entered, to abide the event of the appeal. En. March 11, 1872.

71, 296;

72, 159;

72, 160;

80, 453;

81, 228;

58, 356; 63, 384; 69, 242; 69, 243; 89, 32;

94, 567;

89, 33;
98, 626; 107, 195; 109, 603; 123, 447;
126, 458; 129, 158; 129, 159; 129, 301; 132, 341; 134,
136, 674; 137, 449.

Prac. Act, sec. 348. Cal.Rep.Cit. 7, 132; 24, 96; 32, 374; Prac. Act, sec. 360. 1865-6, 847.

Prac. Act, sec. 361. Prac. Act, sec. 362. 1854, 66; 1854, 73.

Cal.Rep.Cit. 28, 117.

63;

Undertaking on appeal, filing, time for:

Am'd. 1854, 66. Am'd. 1853, 277;

Sec. 940; and

see sec. 1054; sufficiency of: Sec. 954; sureties, paying judgment: Sec. 1059.

Deposit with clerk: Sec. 948.

Filing new undertaking in appellate court:

sec. 954.

Qualification of sureties: Sec. 1057.

See post,

§ 942. Undertaking on appeal from a money judgment. If the appeal be from a judgment or order directing the payment of money, it does not stay the execution of the judgment or order unless a written undertaking be executed on the part of the appellant, by two or more sureties, to the effect that they are bound in double the amount named in the judgment or order; that if the judgment or order appealed from, or any part thereof, be affirmed, or the appeal be dismissed, the appellant will pay the amount directed to be paid by the judgment [or] order, or the part of such amount as to which the judgment or order is affirmed, if affirmed only in part, and all damages and costs which may be awarded against the appellant upon the appeal, and that if the appellant does not make such payment within thirty days after the filing of the remittitur from the supreme court in the court from which the appeal is taken, judgment may be entered on motion of the respondent in his favor against the sureties, 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 the appeal. If the judgment or order appealed from be for a greater amount than two thousand dollars, and the sureties do not state in their affidavits of justification accompanying the undertaking, that they are each worth the sum specified in the undertaking, the stipulation may be that the judgment to be entered against the sureties shall be for such amounts only as in their affidavits they may state that they are severally worth, and judgment may be entered against the sureties by the court from which the appeal is taken, pursuant to the stipulations herein designated. When the judgment or order appealed from is made payable in a specified kind of money or currency, the judgment entered against the sureties upon the undertaking must be made payable in the same kind of money or currency. En. March 11, 1872. Am'd. 1873-4, 336.