Stay of proceedings.

The

security on

be limited

in the case

of an exe

cution, etc.

946. (§ 353.) Whenever an appeal is perfected, as provided in the preceding sections of this Chapter, it stays all further proceedings in the Court below upon the judgment or order appealed from, or upon the matters embraced therein; but the Court below may proceed upon any other matter embraced in the action and not affected by the order appealed from. And the Court below may, in its discretion, dispense with appeal may or limit the security required by this Chapter, when the appellant is an executor, administrator, trustee, or other person acting in another's right. An appeal from an order dissolving an attachment does not continue in force an attachment, unless an undertaking be executed and filed on the part of the appellant, by at least two sureties, in double the amount of the debt claimed by him, that the appellant will pay all costs and damages which the respondent may sustain by reason of the attachment, in case the order of the Court below be sustained, and unless within five days after the entry of the order appealed from, and such appeal be perfected.

Undertaking may

947. The undertakings prescribed by Sections 941, 942, 943, and 945, may be in one instrument or several, or several. at the option of the appellant.

be in one instrument

Justification of

sureties on undertaking on appeal.

948. (§ 355.) The adverse party may except to the sufficiency of the sureties to the undertaking or undertakings mentioned in Sections 941, 942, 943, and 945, at any time within thirty days after the filing of such undertaking; and unless they or other sureties, within twenty days after the appellant has been served with notice of such exception, justify before a Judge of the Court below, a County Judge or County Clerk, upon five days notice to the appellant, execution of the judgment or decree appealed from is no longer stayed; and in all cases where an undertaking is required on appeal by the provisions of this Title, a

deposit in the Court below of the amount of the judgment appealed from, and three hundred dollars in addition, is equivalent to filing the undertaking; and in all cases the undertaking or deposit may be waived by the written consent of the respondent.

949. (§ 356.) In cases not provided for in Sections 942, 943, 944, and 945, the perfecting of an appeal, by giving the undertaking or making the deposit mentioned in Section 941, stays proceedings in the Court below upon the judgment or order appealed from, except where it directs the sale of perishable property, in which case the Court below may order the property to be sold, and the proceeds thereof to be deposited to abide the judgment of the appellate Court.

a

950. (§ 346.) On an appeal from a final judgment, the appellant must furnish the Court with copy of the notice of appeal, the pleadings, or amended pleadings, which form the issues tried in the case, the judgment, bills of exception, and such other parts of the judgment roll, and no more, as are necessary to present or explain the points relied on.

papers used

from

951. (§ 346.) On appeal from a judgment ren- What dered on an appeal, or from an order, except an order on appeals granting or refusing a new trial, the appellant must orders, furnish the Court with a copy of the notice of appeal, the judgment or order appealed from, and of the bill of exceptions relating thereto.

952. On an appeal from an order granting or refusing a new trial, the appellant must furnish the Court with a copy of the notice of motion for new trial, and of appeal, and of the statement provided for in Section 661, and of all the pleadings, papers, bills of exception, and affidavits referred to and made part of such statement.

except orders

granting or now trials.

refusing

papers to

What
be used on
from an
or refusing

an appeal

order granting

a new trial.

Copies and undertakings, how certified.

When an appeal may be dismissed.

953. (§ 346.) The copies provided for in the last three sections must be certified to be correct by the Clerk or the attorneys, and must be accompanied with a certificate of the Clerk that an undertaking on appeal, in due form, has been properly filed.

954. (§ 346.) If the appellant fails to furnish the requisite papers, the appeal may be dismissed; but no When not. appeal can be dismissed for insufficiency of the undertaking thereon, if a good and sufficient undertaking, approved by a Justice of the Supreme Court, be filed in the Supreme Court before the hearing upon motion to dismiss the appeal.

Effect of dismissal.

What may be reviewed

on an

appeal from

judgment.

Remedial
powers
of an
appellate
Court.

On judg

ment on appeal, remittitur must be

955. The dismissal of an appeal is in effect an affirmance of the judgment or order appealed from, unless the dismissal is expressly made without prejudice to another appeal.

956. Upon an appeal from a judgment, the Court may review the verdict or decision, if excepted to, or any intermediate order, if excepted to, which involves the merits or necessarily affects the judgment.

957. When the judgment or order is reversed or modified, the appellate Court may make complete restitution of all property and rights lost by the erroneous judgment or order; and when it appears to the appellate Court that the appeal was made for delay, it may add to the costs such damages as may be just.

958. (§ 358.) When judgment is rendered upon the appeal, it must be certified by the Clerk of the certified to Supreme Court to the Clerk with whom the judgment roll is filed, or the order appealed from is entered. In

the Clerk of the Court below.

cases of appeal from the judgment, the Clerk with whom the roll is filed must attach the certificate to the judgment roll, and enter a minute of the judgment of the Supreme Court on the docket, against the original

entry. In cases of appeal from an order, the Clerk must enter at length in the records of the Court the certificate received, and minute against the entry of the order appealed from, a reference to the certificate, with a brief statement that such order has been affirmed, reversed, or modified, by the Supreme Court on appeal.

Provisions of this

959. The provisions of this Chapter do not apply Chapter to appeals to County Courts.

not applicable to appeals to County Courts.

CHAPTER II.

APPEALS FROM DISTRICT COURTS.

SECTION 963. When an appeal may be taken.

963. (§ 347.) An appeal may be taken to the Supreme Court, from the District Courts, in the following cases:

1. From a final judgment entered in an action or special proceeding commenced in those Courts, or brought into those Courts from other Courts;

2. 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 injunetion; from an order dissolving, or refusing to dissolve, an attachment; from an order changing, or refusing to change, the place of trial; from any special order made after final judgment, and from such interlocutory judgment in actions for partition as determines the rights and interests of the respective parties, and directs partition to be made.

When an be taken.

appeal may

V

CHAPTER III.

APPEALS FROM COUNTY COURTS.

SECTION 966. When may be taken.

966. (§ 359.) An appeal may be taken to the Supreme Court, from the County Courts, in the following cases:

1. From a final judgment in an action of forcible entry and detainer; in an action to prevent or abate a nuisance; in a proceeding in insolvency; and in any special proceeding;

2. From an order granting or refusing a new trial; from an order granting or dissolving, or an order refusing to grant or dissolve, an injunction; from an order changing, or refusing to change, the place of trial; and from any special order made after final judgment in the cases in this section before enumerated.

CHAPTER IV.

APPEALS FROM PROBATE COURTS.

SECTION 969. When may be taken.

970. Executors and administrators not required to give undertaking on appeal.

971. Acts of acting administrator, etc., not invalidated by reversal of order appointing him.

969. An appeal may be taken to the Supreme Court, from a judgment or order of the Probate Court:

1. Granting or revoking letters testamentary, or of administration or of guardianship;

2. Admitting, or refusing to admit, a will to probate; 3. Against or in favor of the validity of a will, or revoking the probate thereof;

4. Against or in favor of setting apart property, or making an allowance for a widow or child;