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late court a certified copy of the notice of appeal and of the judgment roll.

diate or

§329. [Sec. 277.] Upon an appeal from a judgment, the Intermecourt may review any intermediate order, involving the ders affectmerits, and necessarily affecting the judgment.

ing the judgment may be reviewed on

1849.

§ 330. [Sec. 278.] Upon an appeal from a judgment or the appeal. order, the appellate court may reverse, affirm or modify the on appeal. jugdment or order appealed from in the respect mentioned Amended in the notice of appeal, and as to any or all of the parties, and may, if necessary or proper, order a new trial. When the judgment is reversed or modified, the appellate court may make complete restitution of all property and rights lost by the erroneous judgment.

But only such parts of the judgment or decree as are appealed from can be reviewed. Kelsey and wife vs. Western, 2 Com. 500.

peals with

§331. [Sec. 279.] The appeal allowed by the second Certain apand third chapters of this title must be taken within two in two years after the judgment.

years.

Other

ap

peals within thirty

§ 332. [Sec. 280.] The appeal allowed by the fourth chapter of this title, must be taken, within thirty days, days. after written notice of the judgment or order shall have been given to the party appealing.

See section 327, supra and notes.

Amended 1849.

In what cases.

On any ap peal secu

rity must

be given to costs

ges, not

SECTION 333.

334.

335.

336.

CHAPTER II.

Appeals to the Court of Appeals.

In what cases.

On any appeal security must be given to pay costs and damages, not exceeding $250, or deposit made, unless waived. On judgment for money, security to stay execution.

If judgment be to deliver documents, they must be deposited.

337. If to execute conveyance, it must be executed and deposited. 338. Security where judgment is to deliver property, for a sale of mortgaged premises.

339. Stay of proceedings upon security given.

340. Undertakings may be in one instrument, or several.

341. Security to be approved and to justify.

342. Perishable property may be sold, notwithstanding appeal. 343. Undertaking must be filed.

§ 333. [Sec. 282.] An appeal may be taken to the court of appeals, in the cases mentioned in section 11.

See sections 11 to 15 and notes.

§ 334. [Sec. 283.] To render an appeal effectual for any purpose, a written undertaking must be executed, on the pay a part of the appellant, by at least two sureties, to the effect, exceeding that the appellant will pay all costs and damages which $250,or deposit made, 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 written consent on the part of the respondent.

unless waived.

The undertaking must be "to pay costs and damages," to be effectual. Langley and Langley vs Warner, 1 Com. 606; S. C., 3 How. 363.

Where an appeal is taken from two orders, one undertaking in the sum of $250, is not sufficient. Schermerhorn vs. Anderson and others, 1 Com. 430; S. C., 2 Code Rep. 2.

Where one of several defendants appearing by different attorneys, appeals and gives one bond to cover the whole judgment, as required by the next section, and one bond according to the requirements of this section, held sufficient. Smith vs. Lynes and others, 4 How. 209; S. C., 2 Com. 569.

The appeal is perfected 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 was entered. Thompson vs. Blanchard et al., 4 How. 210; S. C., 2 Com. 561.

In case of deficiency on sale of mortgaged premises a bond executed in pursuance of this section is sufficient to bring up the appeal. The Fireman's Ins. Co. agt. Bay and others, 3 How. 424.

ment for

money, se

stay execu

§335. [Sec. 284.] If the appeal be from a judgment di- On judg recting the payment of money, it shall not stay the execu-curity to tion of the judgment, unless a written undertaking be tion. 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.

ment be to deliver

they must

ted.

Amended

§ 336. [Sec. 285.] If the judgment appealed from, direct If judgthe assignment or delivery of documents, or personal pro- documents, perty, the execution of the judgment shall not be stayed be deposiby appeal unless the things required to be assigned or delivered, be brought into court, or placed in the custody of Ame 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.

cute con

must be

executed

§ 337. [Sec. 286.] If the judgment appealed from, direct If to exethe execution of a conveyance or other instrument, the veyance, it execution of the judgment shall not be stayed by the ap- and deposipeal, until the instrument shall have been executed and deposited with the clerk with whom the judgment is entered, to abide the judgment of the appellate court.

exe

ted.

where judgment is to deliver property or

§ 338. [Sec. 287.] If the judgment appealed from, direct Security, the sale or delivery of possession of real property, the cution of the same shall not be stayed, unless a written un- for a sale of dertaking be executed on the part of the appellant, with premises. two sureties, to the effect that during the possession of such

mortgaged

Stay of proceed

security

1849, 1851.

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 possession thereof, pursuant to the judgment, not exceeding a sum 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.

§ 339. [Sec. 288.] Whenever an appeal is perfected as proings, upon vided by sections three hundred and thirty-five, three hundred and given. thirty-six, three hundred and thirty-seven and three hundred and Amended thirty-eight, 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, three hundred and thirty-eight, where it would otherwise, according to those sections, exceed that sum.

Undertakings may

instrument

An appeal properly taken and with the proper security, stays the proceedings in the court below, although the time for excepting to the sureties has not expired. Thompson vs. Blanchard et al., 2 Com. 561.

§340. [Sec. 289.] The undertakings prescribed by secbe in one tions 334, 335, 336, and 338, may be in one instrument or or several several, at the option of the appellant; and a copy, incluAmended ding the names and residence of the sureties, must be

1849.

served on the adverse party, with the notice of appeal un

less a deposite is made as provided in section 334 and notice thereof given.

The court will impose costs on all parties who commit irregularities, even if the irregularity occur by the party disregarding the requirements of this section in such a manner as not to affect the substantial rights of the parties. Beech vs. Southworth et al., 1 Code Rep. 99.

§ 341. Sec. 290.] 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 the notice of the appeal; and unless they or other sureties justifiy 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.

Where it is intended to except to the sureties on an appeal, the notice should be of exception "to the sureties," not "to the undertaking.” Young vs. Colby, 2 Code Rep. 68.

See sections 327 and 412, and notes.

Security to

be approved and justify.

tid to

Amended

1849.

property

rng appeal.

Amended

§ 342. [Sec. 291.] In the cases not provided for in sec- Perishable tions 335,336,337,338, and 339, the perfecting of an appeal, may be by giving the undertaking mentioned in section 334, shall withstandstay proceedings in the court below, upon the judgment 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 or invested, to abide the judgment of the appellate court.

1819.

king must

§ 343. [Sec. 292.] The undertaking must be filed with Underta the clerk, with whom the judgment or order appealed be filed. from was entered.

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