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Whenever it shall be necessary to adjust costs in any interlocutory proceeding in an action, or in any special proceedings, the same shall be adjusted by the Judge before whom the same may be heard, or the Court before which the same may be decided or pending, or in such other manner as the Judge or Court may direct.

SEC. 338. The Clerk shall receive:

A. D. 1870.

On every trial, from the party bringing it on, two dollars; on filing Clerk's fees. transcript, twenty-five cents;

On entering judgment, fifty cents.

He shall receive no other fee for any services whatever, in a civil action, except for copies of papers, at the rate of ten cents for every hundred words.

every

SEC. 339. The fees of referees shall be three dollars to each, for day spent in the business of the reference; but the parties may agree in writing upon any other rate of compensation.

Referee's fees

Of costs on the postpone

SEC. 340. When an application shall be made to a Court or referees to postpone a trial, the payment to the adverse party of a sum not exceed- ment of trial. ing ten dollars, besides the fees of witnesses, may be imposed, as the condition of granting the postponement.

SEC. 341. Costs may be allowed on a motion, in the discretion of the Court or Judge, not exceeding ten dollars, and may be absolute or directed to abide the event of the action.

Costs on a

motion.

SEC. 342. When costs are adjudged against an infant plaintiff, the Costs against guardian by whom he appeared in the action shall be responsible there- infant plainfor, and payment thereof may be enforced by attachment.

Costs in action by or a

ministrator,

SEC. 343. In an action prosecuted or defended by an executor, administrator, trustee of an express trust, or a person expressly authorized by gainst an exstatute, costs shall be recovered, as in an action by and against a person ecutor or adprosecuting or defending in his own right; but such costs shall be trustee of an chargeable only upon or collected of the estate, fund, or party repre- or express trust, sented, unless the Court shall direct the same to be paid by the plaintiff expressly authorized by or defendant personally, for mismanagement or bad faith in such action statute to sue. or defence.

SEC. 344. When the decision of a Court of inferior jurisdiction in a special proceeding, including appeals from Probate Courts, shall be brought before the Circuit Court for review, such proceeding shall, for all purposes of cost, be deemed an action at issue, on a question of law, from the time the same shall be brought into Court, and costs thereon shall be awarded and collected in such manner as the Court shall direct, according to the nature of the case.

SEC. 345 In all civil actions, prosecuted in the name of the State, by an officer duly authorized for that purpose, the State shall be liable for costs in the same cases, and to the same extent as private parties. If a private person be joined with the State as plaintiff, he shall be liable in the first instance for the defendant's costs, which shall not be recovered of the State till after execution issued therefor against such private party and returned unsatisfied.

SEC. 346. In an action prosecuted in the name of the State, for the recovery of money or property, or to establish a right or claim for the benefit of any county, city, town, village, corporation or person, costs awarded against the plaintiff shall be a charge against the party for whose benefit the action was prosecuted, and not against the State.

a person

Security for
costs.
Costs or re-

cision of

an

view of a deinferior Court proceeding.

a special

Costs in action by the

State.

The same.

A. D. 1870.

SEC. 347. In actions in which the cause of action shall, by assignment after the commencement of the action, or in any other manner, become Costs against the property of a person not a party to the action, such person shall be an action com- liable for the costs in the same manner as if he were a party, and payment thereof may be enforced by attachment.

assignee after

menced.

settlement.

SEC. 348. Upon the settlement, before judgment, of any action menCosts on a tioned in Section three hundred and thirty, no greater sum shall be demanded from the defendant as costs than at the rates prescribed by that Section.

TITLE XI.

OF APPEALS IN CIVIL ACTIONS.

CHAPTER I. Appeals in general.

II. Appeals to the Supreme Court.

III. Appeal to the Circuit Court from an inferior Court.

CHAPTER I.

APPEALS IN GENERAL.

SEC. 349. Writs of error abolished, and appeals substituted.
350. Orders made out of Court, how vacated or modified.
351. Who may appeal.

352. Parties, how designated on appeal.

353. Appeal, how made.

354. Clerk to transmit papers to Appellate Court.

355. Intermediate orders affecting the judgment may be reviewed

on the appeal from the judgment.

356. Judgment on appeal.

357. Time for appealing.

SEC. 349. Writs of error in civil and criminal actions, as they have Writs of er- heretofore existed, are abolished; and the only mode of reviewing a ror abolished judgment or order in a civil or criminal action shall be that prescribed by substituted. this title.

and

appeals

SEC. 350. An order, made out of Court, without notice to the adverse Orders made party, may be vacated or modified, without notice, by the Judge who out of Court made it, or may be vacated or modified on notice, in the manner in which

how vacated or modified.

Who may ap. peal.

other motions are made.

SEC. 351. Any party aggrieved may appeal in the cases prescribed in this title.

SEC. 352. The party appealing shall be known as the appellant, and Parties, how the adverse party as the respondent. But the title of the action shall not be changed in consequence of the appeal.

designated on appeal.

Appeal, how made.

SEC. 353. (1.) An appeal must be made by the service of a notice, in writing, on the adverse party, and on the Clerk with whom the judgment or order appealed from is entered, stating the appeal from the same or

some specified part thereof. (2.) When a party shall give, in good faith, notice of appeal from a judgment or order, and shall omit, through mistake, to do any other act necessary to perfect the appeal or to stay proceedings, the Court may permit an amendment on such terms as may be just.

A. D. 1870.

SEC. 354. If the appellant shall not, within twenty days after his ap- Of transmispeal is perfected, cause a certified copy of the notice of appeal and of sion of papers to Appellate the judgment roll, or, if the appeal be from an order or any part thereof, Court. a certified copy of such order, and the papers upon which the order was granted, to be transmitted to the Appellate Court by the Clerk with whom the notice of appeal is filed, the respondent may cause such certified copy to be transmitted by such Clerk to the Appellate Court, and recover the expenses thereof, as a disbursement on such appeal, in case the judgment or order appealed from shall be in whole or in part affirmed; and this provision shall apply to all appeals heretofore taken, where the appeal has not been dismissed in the manner provided by the rules of the Appellate Court.

Intermedifecting judg

SEC. 355. Upon an appeal from a judgment, the Court may review any intermediate order involving the merits, and necessarily affecting the ate orders f judgment.

ment.

títution.

SEC. 356. Upon an appeal from a judgment or order, the Appellate Judgment on Court may reverse, affirm or modify the judgment or order appealed appeal. Resfrom, in the respect mentioned 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.

SEC. 357. The appeal to the Supreme Court under sub-division two of Section eleven of this Code, must be taken within sixty days after writ ten notice of the order shall have been given to the party appealing; every other appeal allowed by the second chapter of this title must be taken within two years after the judgment shall be perfected by filing the judgment roll.

Time for ap

pealing.

CHAPTER II.

APPEALS TO THE SUPREME COURT.

SEC. 358. Appeal, in what cases.

359. On appeal, security must be given or deposit made, unless
waived.

360. On judgment for money, security to stay execution. New un-
dertaking, on sureties in the first becoming insolvent.
361. If judgment be to deliver document or personal property, it
must be deposited or security given.

362. If judgment be to execute conveyance, it must be executed
and deposited.

363. Security where judgment is to deliver real property, or for a sale of mortgaged premises.

A. D. 1870.

Appeal, in

ment on a ver

SEC. 364. Stay of proceedings upon security being given.

365. Undertakings may be in one instrument or several.
366. Security to be approved and sureties to justify.

367. Perishable property may be sold, notwithstanding appeal.
368. Undertaking must be filed.

SEC. 358. An appeal may be taken to the Supreme Court in the cases what cases. mentioned in Section eleven. When the Circuit Court shall render judg The Judgment upon a verdict taken, subject to the opinion of the Court, the quesdict subject to tions or conclusions of law, together with a concise statement of the facts upon which they arose, shall be prepared by and under the direction of the Court, and shall be filed with the judgment roll, and be deemed a part thereof, for the purposes of a review in the Supreme Court.

opinion of the Court.

On appeal,

deposit made

The provisions of this Section shall apply to any judgment therein mentioned that has been heretofore rendered, and upon which an appeal has been brought and is now pending, or upon which an appeal shall hereafter be brought. When the return has already been filed with the Clerk of the Supreme Court such statement shall be filed with him, and be deemed a part of such return.

SEC. 359. To render an appeal effectual for any purpose, a written unsecurity must dertaking must be executed on the part of the appellant by at least two be given, or sureties, to the effect that the appellant will pay all costs and damages unless waived which may be awarded against him on the appeal, 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. Such undertaking or deposit may be waived by a written consent on the part of the respondent.

for money, se

execution.

reties in first

solvent.

SEC. 360. If the appeal be from a judgment directing the payment of On judgment money, it shall not stay the execution of the judgment, unless a written curity to stay undertaking be executed on the part of the appellant, by at least two New under- sureties, to the effect that, if the judgment appealed from, or any part taking on su- thereof, be affirmed, or the appeal be dismissed, the appellant will pay becoming in 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. Whenever it shall be made satisfactorily to appear to the Court that since the execution of the undertaking the sureties have become insolvent, the Court may, by rule or order, require the appellant to execute, file and serve a new undertaking as above; and in case of neglect to execute such undertaking within twenty days after the service of a copy of the rule or order requiring such new undertaking, the ap peal may, on motion to the Court, be dismissed with costs. Whenever it shall be necessary for a party to any action or proceeding to give a bond or an undertaking with surety or sureties, he may, in lieu thereof, deposit with the officer or into Court, as the case may require, money to the amount for which such bond or undertaking is to be given. The Court in which such action or proceeding is pending may direct what disposition shall be made of such money, pending the action or proceeding. In any case where, by this Section, the money is to be deposited with an officer, a Judge of the Court, in term or at chambers, upon the application of either party, may, before such deposit is made, order it to be deposited in Court instead of with such officer; and a deposit made, pur

suant to such order, shall be of the same effect as if made with such officer.

A. D. 1870.

perty it must

or security be

SEC. 361. If the judgment appealed from direct the assignment or de- If judgment or delivery of livery of documents or personal property, the execution of the judgment documents or shall not be stayed by appeal, unless the things required to be assigned or personal prodelivered be brought into Court, or placed in the custody of such officer be deposited or receiver as the Court shall appoint, or unless an undertaking be en- given. tered into on the part of the appellant, by at least two sureties, and in such amount as the Court, or a Judge thereof, shall direct, to the effect that the appellant will obey the order of the Appellate Court upon the appeal.

SEC. 362. 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 have been executed and deposited with the Clerk with whom the judgment is entered, to abide the judgment of the Appellate Court.

If to execute conveyance it cuted and de

must be exe

posited.

is

al property,

SEC. 363 If the judgment appealed from direct the sale or delivery of Security in possession of real property, the execution of the same shall not be stayed, a case where judgment unless a written undertaking be executed on the part of the appellant, to deliver rewith two sureties, to the effect that, during the possession of such property or for a sale by the appellant, he will not commit, or suffer to be committed, any waste of mortgaged thereon, and that, if the judgment be affirmed, he will pay the value of premises. 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.

Stay of pro

on security

SEC. 364. Whenever an appeal is perfected, as provided by Sections three hundred and sixty, three hundred and sixty-one, three hundred and ceedings upsixty-two, and three hundred and sixty-three, it stays all further proceed- being given. ings 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 sixty, three hundred and sixty-one and three hundred and sixty-three, 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 sixty-one, three hundred and sixty-two, three hundred and sixtythree, where it would otherwise, according to those Sections, exceed that

sum.

instrument or

SEC. 365. The undertakings prescribed by Sections three hundred and Undertakings fifty-nine, three hundred and sixty, three hundred and sixty-one, and may be in one three hundred and sixty-three, may be in one instrument or several, at several. the option of the appellant; and a copy, including the names and residence of the sureties, must be served on the adverse party, with a notice of appeal, unless a deposit is made as provided in Section three hundred and fifty-nine, and notice thereof given.

SEC. 366. An undertaking upon an appeal shall be of no effect, unless

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