Amended 1893-4

What
papers to

an appeal

from an
order
granting

952. On an appeal from an order granting or refus

be used on ing a new trial, the appellant must furnish the Court with a copy of the notice of motion for new trial, and or refusing 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 state

a new trial.

Copies and
undertak-
ings, how
certified.

When an
appeal
may be
dismissed.

ment.

NOTE.-See note to Sec. 650, ante.

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.

NOTE.-A stipulation by the attorneys that the transcript is correct, but takes the place of the Clerk's certificate that the papers are correct.-Todd vs. Winants, 36 Cal., p. 129. See, also, Godchaux vs. Mulford, 26 Cal., p. 319; St. John vs. Kidd, 26 Cal., p. 265.

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 under

Effect of
dismissal.

taking 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.

NOTE.-1. EFFECT OF DISMISSAL.-Rowland vs. Kreyenhagen, 24 Cal., p. 57; Chamberlain vs. Reed, 16 Cal., p. 207; Karth vs. Light, 15 Cal., p. 324.

2. WITHOUT PREJUDICE.-Gorden vs. Wansey, 19 Cal., p. 82; Moore vs. Dowling, 19 Cal., p. 81; but see Sec. 955 of this Code.

3. FRAUD IN PROCURING DISMISSAL.-Rowland vs. Kreyenhagen, 24 Cal., p. 52.

4. GENERALLY.-People vs. Goldbury, 10 Cal., p. 312; Noreiga vs. Knight, 20 Cal., p. 172; Lynch vs. Dunn, 34 Cal., p. 518; Dobbins vs. Dollarhide, 15 Cal., p. 374; People vs. Comedo, 11 Cal., p. 70; Ricketson vs. Compton, 23 Cal., p. 636.

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.

NOTE.--See Subd. 2 of note to Sec. 954, ante; see, also, Fulton vs. Cox, 40 Cal., p. 101; Fulton vs. Hanna, 40 Cal., p. 278.

may be

on an

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

NOTE. See notes to Secs. 957 and 963 of this Code.

from judgment.

powers

appellate

957. When the judgment or order is reversed or Remedial modified, the appellate Court may make complete res- of an titution of all property and rights lost by the erroneous Court. 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.

NOTE. RESTITUTION OF PROPERTY, ETC.--Reynolds vs. Harris, 14 Çal., p. 667; Farmer vs. Rogers, 10 Cal., p. 335; Raun vs. Reynolds, 18 Cal., p. 289; Gray vs. Dougherty, 25 Cal., p. 273; Johnson vs. Lamping, 34 Cal., p. 296.

2. COSTS AND DAMAGES.-Cole vs. Swanston, 1 Cal., p. 51; Pacheco vs. Bernal, 2 Cal., p. 150; Bates vs. Visher, 2 Cal., p. 355; Buckley vs. Stebbins, 2 Cal., p. 149; Russel vs. Williams, 2 Cal., p. 158; Pinkham vs. Wemple, 12 Cal., p. 449; De Witt vs. Potter, 13 Cal., p. 171; Ricketson vs. Compton, 23 Cal., p. 649; Harper vs. Minor, 27 Cal., p. 109; Nickerson vs. Stage Co., 10 Cal., p. 520; Jungerman vs. Bovee, 19 Cal., p. 355; Wilbur vs. Sanderson, April Term, 1872; Swimley vs. Clark, 1872.

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

Amended 1893-41.

On judg-
appeal,

ment on

remittitur
must be

tied to
the Clerk of

the Court
below.

Provisions

of this Chapter

not

applicable to appeals to County Courts.

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.

NOTE. McMillan vs. Richards, 12 Cal., p. 467; Blanc vs. Bowman, 22 Cal., p. 23; Marysville vs. Buchanan, 3 Cal., p. 212; Argenti vs. San Francisco, 30 Cal., p. 58; Meyer vs. Kohn, 33 Cal., p. 484.

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

When an appeal may be taken.

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 injunc tion; 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.

NOTE.-1. APPEALS FROM FINAL JUDGMENTS.-An appeal lies from a judgment for contempt.-Ware vs. Robinson, 9 Cal., p. 107; Ex Parte Rowe, 7 Cal., p.

175; see 36 Cal., p. 542. From a judgment in a proceeding for the condemnation of land.-S. F. & S. J. R. R. Co. vs. Mahoney, 29 Cal., p. 112; S. P. & N. R. R. Co. vs. Harlan, 24 Cal., p. 334. From a judgment in an insolvent case.-People vs. Rosborough, 29 Cal., p. 415. From a judgment for less than $300, when the amount claimed in the complaint exceeds that sum.— Solomon vs. Reese, 34 Cal., p. 28. From a judgment rendered at chambers.-Brewster vs. Hartley, 37 Cal., p. 15. From a judgment in certiorari cases.-Morley vs. Elkins, 37 Cal., p. 454. From a judgment in a contested election case.-Dorsey vs. Barry, 24 Cal., p. 449; Day vs. Jones, 31 Cal., p. 261; Knowles vs. Yates, 31 Cal., p. 82. From a decree in a divorce case.-People vs. Conant, 10 Cal., p. 249; see, also, Neal vs. Hill, 16 Cal., p. 145; Adams vs. Woods, 18 Cal., p. 30.

2. FROM WHAT ORDERS AN APPEAL WILL LIE.An order setting aside a decree in equity.-Riddle vs. Baker, 13 Cal., p. 295. An order changing a judgment. Bryan vs. Berry, 8 Cal., p. 130. An order refusing to quash an execution.-Gilman vs. Contra Costa Co., 8 Cal., p. 52. An order setting aside an execution.-Bond vs. Pacheco, 30 Cal., p. 530. An order granting an injunction.-Sullivan vs. Triunfo Mining Co., 33 Cal.,

p. 385.

3. FROM WHAT ORDERS AN APPEAL WILL NOT LIE. An order granting a nonsuit.-Juan vs. Ingoldsby, 6 Cal., p. 439. An order made before final judgment refusing to transfer a cause to a United States Court.Brooks vs. Calderwood, 19 Cal., p. 124; Hopper vs. Kulkinan, 18 Cal., p. 517. An order refusing to set aside a former order.-Horn vs. Volcano Water Co., 18 Cal., p. 141; Henly vs. Hastings, 3 Cal., p. 341. An order overruling a demurrer.-Gates vs. Walker, 35 Cal., p. 289; Morago vs. Emeric, 4 Cal., p. 308; People vs. Ah Fong, 12 Cal., p. 424. From an order admitting a party to bail under the provisions of the Habeas Corpus Act.-People vs. Schuster, 40 Cal., p. 627. From an order sustaining a demurrer. The order can only be reviewed through an appeal from the judgment.-Hibberd vs. Smith, 39 Cal., p. 145; Agard vs. Valencia, 39 Cal., p. 292; Daniels vs. Lansdale, 38 Cal., p. 567. In Briggs vs. McCullough, 36 Cal., p. 542, the question was raised, but not decided, whether an appeal lies from an order made after final judgment adjudging a judgment debtor guilty of contempt for not applying his property on the execution. An order va

95-VOL. I.

cating an order dismissing a cause.-Gates vs. Walker, 35 Cal., p. 289. An order vacating an order of reference and the proceedings had under it.-Hastings vs. Cunningham, 35 Cal., p. 549; Johnson vs. Dopkins, 6 Cal., p. 83; Baker vs. Baker, 10 Cal., p. 527. From an order making a new party defendant.—Beck vs. City of San Francisco, 4 Cal., p. 375. From an order refusing to grant a commission to take testimony.-People vs. Stillman, 7 Cal., p. 117. From an interlocutory order, except in the cases provided by the Code.-De Barry vs. Lambert, 10 Cal., p. 503. From an order of Court refusing to set aside an interlocutory judgment.-Stearns vs. Marvin, 3 Cal., p. 376. From an order overruling a motion for a new trial, when the party fails to prosecute his motion before the District Court.-Mahoney vs. Wilson, 15 Cal., p. 43; Frank vs. Doane, 15 id., p. 303; Green vs. Doane, id., p. 304. From an order denying leave to intervene.-Wenborn vs. Boston, 23 Cal., p. 321. From an order made in an action pending in the District Court staying all proceedings therein until the further direction of the Court.-Rhodes vs. Graig, 21 Cal., p. 419. From an order directing a statement on motion for a new trial to be settled.-Leffingwell vs. Griffing, 29 Cal., p. 192. From an order striking out a statement on motion for a new trial.-Quivey vs. Gambert, 32 Cal., p. 304; Ketchum vs. Crippen, 31 Cal., p. 365. From an order denying a motion to certify a statement.-Genella vs. Relyea, 32 Cal., p. 159. From a judgment of nonsuit rendered on motion of the party appealing.-Sleeper vs. Kelly et al., 22 Cal., p. 456. From an order overruling exceptions to a referee's report.-Peck vs. Courtis, 31 Cal., p. 207. From an order refusing to amend an order allowing time to move for a new trial.Pendegast vs. Knox, 32 Cal., p. 73. If the plaintiff dismisses the action before trial, and the Court, on defendant's motion, makes an order restoring the cause to the calendar, no appeal lies from this order.-Dimick vs. Deringer, 32 Cal., p. 488. An order made on motion to retax cost.-Stevenson vs. Smith, 28 Cal., p. 102; Levy vs. Getteson, 27 Cal., p. 686; Lasky vs. Davis, 33 Cal., p. 677; see, also, Meeker vs. Harris, 23 Cal., p. 285. Orders that are not appealable can only be reviewed through an appeal from the judgment.Gates vs. Walker, 35 Cal., p. 289.

4. ORDERS IN PARTITION.-An appeal does not lie from an interlocutory judgment, rendered in partition, determining the interests of the several parties, and appointing a referee to make a partition, and report