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judgment or order unless a written undertaking be executed on the part of the appellant by two or more süreties — stating their place of residence, - 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, the appellant shall
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 shall be affirmed, if affirmed only in part, and all damages and costs which shall be awarded against the appellant upon the appeal, which undertaking shall be approved by the clerk.
SEC. 265. If the judgment or order appealed from direct the assignment or delivery of documents or personal property, the execution of the judgment or order shall not be stayed by appeal unless the things required to be assigned or delivered be placed in the custody of such officer or receiver as the court may appoint, or unless an undertaking be entered into on the part of the appellant, with at least two sureties, to the approval of the clerk, and in such amount as the court or judge thereof, or probate judge, may direct, to the effect that the appellant will obey the order of the appellate court upon the appeal.
Sec. 266. If the judgment or order appealed from direct the execution of a conveyance or other instrument, the execution of the judgment or order shall not be stayed by the appeal until the instrument is executed and deposited with the clerk of the court in which the judgment or order is entered, to abide the judgment of the appellate court.
Sec. 267. If the judgment appealed from direct the sale or delivery of possession of real or personal property, the execution of the same shall not be stayed unless a written undertaking be executed on the part of the appellant, with two or more sureties, to the effect that during the possession of such property by the appellant he will not commit nor 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 such property from the time of the appeal until the delivery of the possession thereof, pursuant to the judgment or order, not exceeding a sum to be fixed by the judge of the court by which the judgment was rendered or order made, and wbich 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, and the appeal is by the mortgagor, the undertaking shall also provide for the payment of such deficiency.
Sec. 268. Whenever an appeal is perfected as provided by the preceding sections in this chapter, it shall stay all further proceedings in the court below upon the judgment or order appealed from, or upon the matter embraced therein, but the court below may proceed upon any other matter included in the action and not effected by the judgment or order appealed from. And the court below may in its discretion dispense with or limit the security required by the said sections when the appellant is an executor, administrator, trustee, or other person acting in another's right.
Sec. 269. The undertaking prescribed by the preceding sections may be separate, or all included in one, at the option of the appellant.
SEC. 270. 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 the amount specified therein, over and above all their just debts and liabilities, exclusive of property exempt from execution, except where the judgment exceeds three thousand dollars, and the undertaking on appeal is executed by more than two sureties, tbey may state in their affidavit that they are severally worth amounts less than that expressed in the undertaking if the whole amount be equivalent to that of two sufficient sureties. In all cases where an undertaking is required on appeal by the provisions of this chapter of this act, 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 appellee.
Sec. 271. In all cases not herein provided for the perfecting of an appeal, by giving the undertaking as herein required, or by making a deposit as before specified, shall stay all 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 deposited to abide the judgment of the appellate court.
Sec. 272. Appeals in the supreme court may be brought to a hearing by either party, upon a notice of three days to the opposite party. Before the argument, each party shall furnish to the other a copy of his points and authorities, and file one copy thereof with the clerk.
SEC. 273. When judgment is rendered upon the appeal, it shall be certified by the clerk of the supreme court to the clerk of the court in which the judgment appealed from is entered, who shall enter the same at length in the order book and minutes against the judgment or order appealed from, a reference to the judgment of the supreme court, with a brief statement that such judgment or order has been affirmed, reversed, or modified, as the
APPEALS FROM PROBATE TO DISTRICT COURTS.
Sec. 274. An appeal may be taken from the probate court to the district court of the district in which the probate court is beld, in the following cases: First, From an order or decree admitting a will to probate or refusing the same. Second, From an order setting apart property or making an allowance for the widow or children. Tbird, From an order granting letters testamentary or of administration, or appointing a guardian of an infant or of an insane person, or of a person incompetent to manage his own property, or refusing to grant such letters, or to make such appointment, or making such letters of appointment. Fourth, From an order directing the sale or conveyance of real property. Fifth, , From an order or decree by which a debt, claim, legacy, or distributive share, is allowed or payment thereof directed, or by which such allowance or direction is refused. Sixth, From an order made in the settlement of an executor, administrator, or guardian. Seventh, And from any other final judgment or order made in any case, civil or criminal.
SEC. 275. All appeals provided for in this act, from the probate court, shall be taken in the same manner as provided for in article 8tb of " an act entitled an act in relation to executors and administrators."
WRITS OF ERROR.
SEC. 276. Every final judgment, order, or decision of a district court, except in chancery, may be examined upon a writ of error in the same court for error in fact, in the supreme court for error in law.
Sec. 277. Every such writ shall be prosecuted within six months and not after. But if the party entitled to have such writ shall be absent from the Territory, and shall not have been personally served with process, nor appeared to the action, or if such party be an infant, or married woman, or imprisoned, or insane, then such writ may be prosecuted within two years after the removal of such disability and not after: Provided, That absence from the Territory shall not entitle the party to a longer time than five years. The time limited shall include the day on which the judgment is rendered, or the order or decision is made, or on which the disability ceases.
SEC. 278. A writ of error shall be deemed to have issued on the day on which the plaintiff in error shall file in the office of the clerk of the district court where the record is, a written undertaking, executed by two sureties, to be approved by the clerk, for the payment of all the costs of such proceeding, and it shall not be necessary in any stage of the proceedings actually to sue out the writ of error.
SEC. 279. On the filing of such undertaking, the clerk shall issue a notice to the defendant in error, under the seal of the court, specifying the court in which and the time when he is to appear to protect his interests, and if the præcipe direct the writ of error to be made returnable to the supreme court, he shall send thither a transcript of the record, under the seal of the court. Such notice may be as nearly as applicable in the following form:
TERRITORY OF MONTANA,
has sued a writ of error, from the supreme court, to reverse the decision of the district court of said county, given in your favor against the said A-B
term of 18- and unless you appear in the said supreme court on the
Monday of 18- the cause will be heard in
absence. Witness the seal of the district court the 18[SEAL.]
SEC. 280. The notice may be served on the defendant in error or bis attorney of record, by any sheriff within his county, and shall be by delivering a copy thereof, or it may be served by any other disinterested person, and the return of the sheriff endorsed thereon, or the affidavit of such other disinterested person, shall be evidence thereof, and if served ten days before the return day, the cause may be heard at that term. If returned not found, the court of error may make such order for the publication as sball appear most likely in the particular case to convey knowledge of the proceedings to the defendant in error, and may then proceed as if the notice had been personally served.
Sec. 281. The transcript shall contain a copy of the writ and return, the pleadings, the journal entries and the bills of exception, the exception and return, and such other matters as the court or judge shall have ordered to be made a part of the record Either party may bave a certiorari to supply any diminution of the record.
Sec. 282. The court of error may fix the time for assigning errors and filing joinders. If errors in law be assigned, no joinders shall be necessary. One or more errors in fact may be assigned, and the defendant may put in the common joinder as a demurrer thereto, or may traverse, or confess and avoid the facts assigned for error, and a separate issue shall be made in each.
SEC. 283. The judgment, or other matter complained of, may be affirmed, or may be reversed, or set aside, in whole or in part, or may be modified, or a different judgment or order may be substituted for that complained of, and the cause may be remitted to