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undertaking must be executed on the part of the appellant, by at least two sureties, to the effect that the appellant will pay all the costs and damages which may be awarded against him on the appeal, not exceeding two hundred and fifty 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. Such undertaking or deposit may be waived by a writ. ten consent on the part of the respondent.
a. Where in an action against several defendants who defended separately the judgment of the court below was that one defendant (Lynes) recover against the plaintiff $2,008 78, and that the other defendants recover against the plaintiff $412 93. There was but one judgment record. The plaintiff appealed to the court of appoals, and gave one undertaking to recover the two sums adjudged to the defendants, and another undertaking to pay all costs and damages which might be awarded against him on the appeal, not exceeding $250. On motion to dismiss the appeal on the ground that there should have been iwo undertakings in the sum of $250 each, one to Lynes, and one to the other defendants, the court denied the motion, and held, that as there was but one judgment, though it was for two sums, and as the appellant had given security for both those sums, and an undertaking for all costs, do.. not exceeding $250, there had been a full compliance with the statute. Smith v. Lynes, 4 Pr. R., 209; and see note to section 338.
b. On an appeal from two orders, an undertaking in the sum of $250 is not suficient; but the undertaking may be amended. Schermerhorn v. Anderson, 2 Code Rep., 2.
c. Where an appellant from a judgment directing the payment of money, gave an undertaking to pay the amount of the judgment and “ all damages awarded against the appellant upon the appeal," but made no mention of " costs," it was held on motion to dismiss the appeal, that the undertaking did not comply with the requirement of this section (334), and that the appeal was not effectual for any purpose. Lang. ley v. Warner, 1 Code Rep, 111; 3 Pr. R., 363 ; Wilson v. Allen, 3 ib. 369.
d. Can the court allow a new undertaking to be filed nunc pro tunc? Ib. Such a power was in effect, although not in express terms, exercised by the supreme court in Harris v. Bennett, 3 Code Rep., 23; where on a motion to dismiss an appeal for a defect in the undertaking, the court, Edmonds, J., ordered a new undertaking to be filed. See section 339.
e. A statute of the State of Missiesippi allows an appeal“ upon the appellant giring bond with good and sufficient surety;" and in construing that statute it has been held that the giving the bond is a condition precedent to bringing the appeal, and that the bond must be executed by the appellant. Hardaway v. Biles, i Sme. & M., 658; Porter v. Grimshaw, 3 Ilow., U. S. R., 76.
f. If the undertaking substantially complies with the statute, and secures to the respondent all that the law designed for him, it is sufficient. Coleman v, Rowe, 4 Sme. & M., 747 ; Smith v. Norval, 2 Code Rep., 14.
g. An affidavit of justification made by the sureties upon an appeal to the court of appeals will be sufficient to render the appeal effectual, if it states that the sureties are each worth double the amount of the judgment. But in order to stay the proceedings upon the judgment, the sureties must also justify in double the amount (8250) required to be inserted in the undertaking to cover the costs of the appeal. Newton v. Harris, 1 Code Rep. N. S., 191.
h. The undertaking on an appeal to the court of appeals cannot be construed as largely as a bond on a writ of error. That bond was conditioned to satisfy the judgment in case it should be affirmed, and also in case appellant failed to prosecute his writ, or in case the same should be quashed or discontinued (Watson v.
Husson, 1 Duer, 252). The undertaking under the code only extends to the case of an affirmance of the judgment. 16.
a. “ Perfecting an appeal from a judgment at special term to the general term, or from a judgment of affirmance by the general term to the court of appeals, by giving such an undertaking as stays all further proceedings in the court below upon the judgment appealed from, neither divests the lien of either of the judgmeuts appealed from, nor discharges the suroties ou the appeal first taken from the special to the general term.” Parsons v. Travis, 2 Duer, 662.
b. Therefore, where, on an appeal from a judgment at special term to the general term, a sum of money was deposited in lieu of an undertaking, to stay proceed'ngs on the judgment, the judgment was affirmed at the general term, and an appeal was taken to the court of appeals, and perfected by giving an undertaking to stay proceedings on the judgment, the appellant will not be allowed to withdraw the sun deposited on the appeal to the general term. 16.
$ 335. [284.] Existing suits. On judgment for money ;
. security to stay execution.
If the appeal be from a judgment directing the payment of money, it shall not stay the execution of the judgment, unless a written undertaking be executed on the part of the appellant by at least two sureties, to the effect, that if the judgment appealed from, or any part thereof, be affirmed, the appellant will pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be affirmed if it be affirmed only in part, and all damages which shall be awarded against the appellant, upon the appeal. .
c. A judgment directing the satisfaction of money out of a fund in court, is not a judgment directing the payment of money within section 335. Curtis v. Leavitt, 1 Abbott, 274; 10 Pr. R.; 481.
d. The undertaking should state the amount of the judgment appealed from. Harris v. Bennett, 2 Code Rep., 23. See section 339.
$ 336. [285.) (Amended 1849.) Existing suits. If judgment be to deliver documents, they must be deposited.
If the judgment appealed from direct the assignment or delivery of documents, or personal property, the execution of the judgment shall not be stayed by appeal, unless the things required to be assigned or delivered be brought into court, or placed in the custody of such officer or receiver as the court shall appoint, or unless an undertaking be entered into on the part of the appellant, by at least two sureties, and in such amount as the court, or a judge thereof, or county judge, shall direct, to the effect that the appellant will obey the order of the appellate court, upon the appeal.
8 337. (286.) Existing suits. If to execute conveyance, it must be executed and deposited.
If the judgment appealed from direct the execution of a conveyance or other instrument, the execution of the judgment shall not be stayed by the appeal until the instrument shall bave been executed and deposited with the clerk with whom the judgment is entered, to abide the judgment of the appellate court.
$ 338. [287.) Existing suits. Security, where judgment is to deliver property or for a sale of mortgaged premises.
If the judgment appealed from direct the sale or delivery of possession of real property, the execution of the same shall not be stayed, unless a written undertaking be executed on the part of the appellant, with two sureties, to the effect 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, be will pay the value of the use and occupation of the property, from the time of the appeal until the delivery of possession thereof, pursuant to the judgment, not exceeding a suin to be fixed by a judge of the court by which judgment was rendered, and which shall be specified in the undertaking. When the judgment is for the sale of mortgaged premises, and the payment of a deficiency arising upon the sale, the undertaking shall also provide for the payment of such deficiency.
a. On an appeal from a judgment for a sale of mortgaged premises, the appellant gave an undertaking pursuant to section 331, and it was held effectual to permit the appeal, but not to stay proceedings. "Firemen's Ins. Co. of Albany v. Bay, 2 Code Rep., 3. See section 339.
$ 339. [288.] (Amended 1849-1851.) Existing suits. Stay of proceedings, upon security given.
Whenever an appeal is perfected, as provided by sections 335, 336, 337, and 338, it stays all further proceedings in the court below, upon the judgment appealed from, or upon the matter embraced therein ; but the court below may proceed upon any other matter included in the action, and not affected by the judgment appealed from. And the court below may, in its discretion, dispense with or limit the security required by sections three hundred and thirty-five, three hundred and
thirty-six, and three hundred and thirty-eight, when the appellant is an executor, administrator, trustee, or other person acting in another's right; and may also limit such security to an amount not less than fifty thousand dollars, in the cases mentioned in sections three hundred and thirty-six, three hundred and thirty-seven, and three hundred and thirty-eight, where it would otherwise, according to those sections, exceed that sum.
The amendment of 1951, is the addition of the part in italic,
a. In using the word "perfected" the second rule of the court of appeals follows this section of the code ; and, although there is room for doubt, we think an appeal is " perfected” within the meaning of the code when the proper undertaking, with an affidavit of the sureties, has been executed, and notice of the appeal has been served on the adverse party, and on the clerk with whom the judgment or order is entered; and the 20 days under rule 2, and the 40 days under rule 7, commence running from that time. Thompson v. Blanchard, 4 Pr. R., 210.
b. An appeal from the judgment to the general term, though accompanied with the proper undertaking for ihe payment of the judgment and the costs of the appeal, does not, per se, supersede an execution previously issued and levied on personal property. Cook v. Dickerson, 1 Duer, 679.
c. In construing a similar provision in Mississippi the court said, “ An executor is entitled to an appeal without surety, when the judgment is to affect only the assets in his hands; Aliter, where ho is in a situation in which a personal judgment can be rendered against him., Ward v. American Colonization Soc., 4 Šme. and M., 670 ; Scott v. Searls, 1 it., 590; Linney v. Holliday, 3 Ran., 1.
$ 340. [289.] (Amended 1849.) Existing suits. Undertakings may be in one instrument or several.
The undertakings prescribed by sections 334, 335, 336, and 338, may be in one instrumeut or several, at the option of the appellant; and a copy, including the names and residence of the sureties, must be served on the adverse party with the notice of appeal, unless a deposit is made as provided in section 334, and notice thereof given.
d. This section in terms requires copies of all undertakings necessary, and which the appellant intends to give, to be served with the notice of appeal, and, therefore, where the notice of appeal was given on the 7th of August, and an undertaking under section 334 filed at the same time, and on the 4th of September following, an undertaking, pursuant to section 335 was filed, it was held, that it should have been filed with the notice of appeal, and as it was not it did not stay the proceedings. N. Y. Central Ins. Co. v. Sofford, 10 Pr. R., 344.
e. But if it be shown that the omitting to file the undertaking in one term was the result of accident, the court has power to rectify the mistake, and stay the proceedings, under section 327. Ib.
f. The court will impose costs for any disregard of this section. Beach v. Southworth, 1 Code Rep., 99.
$ 341. [290.] (Amended 1849.) Existing suits. Security to be approved and to justify.
An undertaking upon an appeal shall be of no effect, unless it be accompanied by the affidavit of the sureties, that they are each worth double the amount specified therein. The respondent may, however, except to the sufficiency of the sureties, within ten days after notice of the appeal; and unless they or other sureties justify before a judge of the court below, or a county judge, as prescribed by sections 195 and. 196, within ten days thereafter, the appeal shall be regarded as if no undertaking had been given. The justification shall be upon a notice of not less than five days.
This section is substituted for section 290 in the code of 1848.
a. The code of 1848, instead of requiring the undertaking to be accompanied by an affidavit of the sureties, required it to be approved by a judge, and it was held in one reported case that it was not essential to the validity of an undertaking, that it be proved or acknowledged; all that the code required was that it should be approved by a justice of the court, or county judge. Nor was it necessary, in the first instance, that the sureties should justify. Wilson v. Allen, 3 Pr. R., 363. But in another case under the code of 1848, it was held that the undertaking must be ae. knowledged. Beech v. Southworth, 1 Code Rep., 99. And the supreme court in the first judicial district made a rule never to receive or allow to be filed any under. taking under the code, unless the same was duly proved or acknowledged in the manner prescribed by law for the proof or acknowledgment of deeds of real estate, 2 Code Rep., 79; and the same is now provided for by the 71st rule of the rules of the supreme court.
b. That the undertaking be approved is an important feature in perfecting an appeal. Wade v. Amer. Col. Soc., 4 Sme. and M., 670.
c. Where the notice of justifying is served by mail, it must be double time, or ten days, Dresser v. Brooks, 5 Pr. R., 75. Thus where the respondent on the 6th of June served by mail a notice of exception, which was received by the appellant on the 10th of June, the appellant on the same day (the 10th) gave notice by mail that the sureties would justily on the 17th ; and the sureties did justify on that day. The court on motion, held that the respondent was irregular, but, on ground being shown therefor, extended the time for the sureties to justify.
d. The sureties need only justify to double the amount of the judgment. Rick v. Beekman, 2 Codo Rep., 63. e. The affidavit may be filed nunc pro tunc.
Ib. f. The exception should be to the "sureties," not to the undertaking. Young 5. Colby; 2 Code Rep., 68.
g. May the appellant's attorney be a surety ?-Studwell v. Palmer, 5 Paige, 57.
h. Where the sureties named in a bond given on a writ of error were excepted to, failed to justify, and the writ of error was in consequence superseded, it was held that the sureties were discharged. Ward v. Syme, i Code Rep. N. S., 266.
i. On an application for justification of sureties on an appeal, the merits of the appeal will not be considered. Bradley v. Hall, 1 California R., 199.
j. Where sureties on appeal justified on notice to the respondent's attorneys, who refused to attend the justification, because the hour for which notice was given was gone by the delay being excused), held, on an affidavit of the respondent that the sureties were irresponsible, that he was entitled to an order of dismissal of the appeal, unless the appellant served a new notice of justification, and the sureties justified anew in pursuance of such notice, or unless new sureties should be substicuted who should justify. Hees v. Snell, 8 Pr. R., 185.