was against a constable for neglect of duty in not paying over money collected on claims placed in his hands, the notice was held fatally defective for not averring that he had collected any money on such claims.1 § 1195. Designation of Court. Where the notice designates the court in which the motion is to be made, the place of holding such court, being a matter of which every one is supposed to take notice, need not be stated in the notice, in order to render the same sufficient.2 $1196. Date of Filing. But where a motion is to be made. for judgment, the notice should give the correct date when the motion will be made, for the saine reason that the original process is required to be specific in this particular. It was accordingly held, where notice was given that a motion for judgment against a sheriff would be made on the fourth of the month, and such motion was filed on the third, and ordered to lie over, and was taken up subsequent to the fourth, and judgment rendered thereon, that such judgment was void.3 But where the notice was given of a motion to be made on the twenty-fifth of the month, and the court adjourned over that day, it was held that the motion might be heard on a day subsequent to the twenty-fifth, without a new notice.4 $1197. Circumstances Affecting Sufficiency. The sufficiency of the notice often depends upon collateral circumstances. As where the motion was for judgment on a bond, given to suspend a sale of property levied on to satisfy an execution, the sufficiency of the notice was determined by considering it in connection with the bond.5 §1198. Notice Generally in Writing. The rule seems almost universal that the notice should be written, except where there is an express waiver, or such conduct by the party as will estop him from denying the receipt of notice. It was accordingly 1 Barrett v. Smith, 4 W. Va., 709. held that an informal verbal notice of a motion for a new trial, given out of court, while in conversation with opposing counsel, would not be sufficient.1 $1199. Service of Notice. Another important matter for consideration, in connection with this branch of the subject, is service of such notices; which necessarily includes, upon whom and by whom the service of notice should be made, as well as the time and manner of making such service. The rules applicable to the service of other notices will be found generally applicable to service of notice of a motion, and these rules we shall endeavor to illustrate more fully elsewhere.2 It may be proper to state here, however, that the notice of a motion should always be served upon the party to be affected thereby, or upon his attorney of record, if he have one. When the motion is one arising in the course of the trial of a cause, a decided preference seems to be given to service by the attorney of the party giving the notice, and upon the attorney of the opposite party, not only as a matter of general convenience, but as a positive rule of practice, laid down by some of the courts.4 § 1200. Upon the Party Affected. In the case of Walker v. Scott, it was decided that the judgment, which should have been against the principal and his surety, being by mistake entered against the principal alone, might, on motion, be amended by adding the name of the surety, and it would not be necessary to serve notice of such motion on the principal. This holding was obviously for the reason that the principal. was not the party interested in the motion. §1201. Time of Notice. The length of time for which the notice must be given of an intended motion, before the same will be considered by the court, varies according to the char 1 Killip r. Empire Mill Co., 2 Nev., 34; Pearson v. Lovejoy, 53 Barb. (N. Y.), 407; Butler v. Mitchell, 17 Wis., 52; Bear River & Auburn, &c., Co. v. Boles, 24 Cal., 354. 2 See Post VII. Service. 3 Walker v. Scott, 29 Ga., 392. Harding v. Stafford, Say. Rep., 133; Halsey v. Carter, 6 Rob. N. Y., 535. Supra. acter of the motion, as well as the difference in the practice of the different courts; but where no fixed rule is prescribed by statute or rule of court, it will be sufficient if the notice is served a reasonable time before the court takes action in the matter.1 And even where the time is fixed by rule, it is frequently subject to the will of the court, in the exercise of a sound discretion, to shorten the time in particular instances, before the service of the notice.2 §1202. Motion for New Trial. — It has been held that moving for a new trial will continue the jurisdiction of the court over the cause beyond the term, when due notice of the intention to so move has been given, and such notice is followed up by a statement or affidavit of what the motion will contain, made in due time; but if the notice and subsequent statement are not made within the statutory time, the court loses jurisdiction of the cause at the end of the term, and thereafter cannot set aside a judgment, however erroneous it may be.3 § 1203. Waiver by Appearance.—Irregularities in the notice, however, which might furnish sufficient grounds for overruling the motion, or even for setting aside the order or judgment based upon such motion, where the same had been sustained, may all be waived by an appearance for the purpose of contesting the motion when the same comes up for hearing.1 § 1204. Notice of Reference. One of the proceedings where notice becomes necessary, is when a cause is by the court referred to a master, or to a special referee appointed for that purpose. If the order of reference is made in the absence of either party or his attorney, such absent party or attorney would be entitled to notice thereof, in some form. And when the reference is made the parties or their attorneys should be duly notified of the hearing. This notice must be given in a 1 Bruen v. Bruen, 43 Ill., 408; Coveny v. Hale, 49 Cal., 552; Dambmann r. White, 48 Cal., 439; Crowther v. Rowlandson, 27 Cal., 376; 8 Price, 503; Douglas v. Ray, 4 Durnf. & East, 552. 'Rogers McElhone, 12 Abb. Pr., 392. State v. First National Bank, 4 Nev., 358; Caney v. Silverthorn, 9 Cal., 67; Calderwood v. Brooks, 28 Cal., 151. Brown v. State, 8 Heisk. (Tenn.), 871. reasonable time so as to enable the one notified to be in attendance at the time without using extraordinary diligence. So that, in one instance, three days' notice, where that time was barely sufficient, barring all delays, to allow the attorney of the opposite party to attend the hearing, was held insufficient.1 But it has been held that where a cause is unnecessarily referred, all the facts necessary to a decree being in possession of the court, there is no necessity for notice to the opposite party of such reference." §1205. Notice of Reinstatement. Where a cause has been finally disposed of by confirmation of the master's report, if either party desires to reinstate the case, for the purpose of instituting further proceedings in relation thereto, it must be upon due notice to the opposite party. And where such a case was reinstated at a term next succeeding the one at which the report was confirmed, without notice to the opposite party, it was held that all subsequent proceedings and orders affecting the interests of the party not notified, would not only be irregular, but absolutely void.3 1206. Rule to Show Cause. Where a rule to show cause why a petition should not be dismissed, had been continued indefinitely, and it was finally fixed for a time certain, it was held that the party against whom the rule was granted would be entitled to reasonable notice of the fixing thereof. Upon the same principle if the continuance was at the instance of the party subject to the rule, and the fixing of the rule was on his application or with his knowledge, the opposite party should have notice. But where a foreclosure suit was revived, by scire facias, against the heirs of a deceased mortgagor, under a statute requiring the filing of the response and the service of a copy on the attorneys of the plaintiff, it was held that the notice was not void by reason of its failing to fix a 'Strang v. Allen, 44 Ill., 428. 2 Michigan Insurance Co. v. Whittimore, 12 Mich., 427; Kellogg v. Putnam, 11 Mich., 344. 3 Mulvey v. Carpenter, 78 Ill., 580. 'Hennen v. New Orleans & C. R. R. Co., 20 La. An., 544. time for showing cause; because the practice in such cases was a matter of statutory regulation, and the fixing of the time by the notice was not required by statute.1 $1207. Examination of Accounts. - An accounting party may be cross-examined on his accounts, after the same have been submitted. When this is done, he is generally entitled to notice of such cross-examination, and the notice should specify the points upon which the examination is to proceed.2 IV NOTICE OF APPEAL. §1208. Not Always Required. 1209. Written, and Served upon Attorney. 1210. In Criminal Cases. 1211. Justices of the Peace. 1212. When Notice Serves as an Assignment of Errors. 1213. Grounds of Appeal. 1214. Assent to Judgment. 1215. Must be on Same Day. 1216. Must be Given in Time. 1217. Personal Service not Required. 1218. Notice to be Given to Co-Parties. 1219. Does not Depend upon Conflict of Interest. 1220. Waived by Appearance. § 1208. Not Always Required. The rules governing the notice of appeal possess very few features of a peculiar character, to distinguish them from those applicable to notices of other court proceedings. Under the code practice of some of the States of the Union, there is practically no such thing as a notice of appeals, except where they are taken from judg ments of justices of the peace and other inferior courts. The 1 Durbin v. Waldo, 15 Wis., 352. 2 McArthur . Dudgeon, 15 Eq. Cas., 102. |