proceedings to perfect the appeal take place in open court, and the appellee is required to take notice of such proceedings, to the same extent as he would of the rendition of the judgment.

§ 1209. Written, and Served upon Attorney. This, like most of the notices required in practice, should be written; and, in civil actions where the opposite party appears by attorney may in every instance be served upon the attorney, and may be signed by the attorney of appellant. In some of the states, in cases where an attorney has been employed, the service of the notice is required to be made upon him.s

§ 1210. In Criminal Cases. There is perhaps no very good reason for a contrary rule in criminal cases, and where the appeal is taken by the defendant, the notice could be served upon the state's attorney. But it has been decided when the appeal was taken by the state, that notice of appeal served upon defendant's counsel was not in compliance with the statute, and because the notice was not served upon the defendant in person, the appeal was dismissed. Though, when the defendant cannot be found, the notice may be effectually served by posting it in the office of the clerk of the court. However, it has been held that in case of an appeal from an order changing the place of trial, the notice should be served upon the clerk of the court in which such order is made."

81211. Justices of the Peace. Under a statute of a state where such notice was exacted in every case of an appeal from a judgment of a justice of the peace, and appeals were held to

1 Masterson v. Herndon, 10 Wall., 416; Larrabee v. Morrison, 15 Minn., 196. In this case it was held that an omission of the signature to the notice might be taken advantage of after admission of service. Tiffin v. Millington, 3 Mo., 418, where it is decided that such notice cannot be properly served by reading the same to the opposite party, but the writing must be delivered to him.

Larrabee v. Morrison, Supra.

Abrahms v. Stokes, 39 Cal., 150; Tripp v. De Bow, 5 How. N. Y. Pr., 114. 'State v. Brandon, 6 Kans., 243; State v. Baird, 9 Kans., 60.

5 Ibid.

Hass v. Weinhagen, 30 Wis., 326.

'Masterson v. Ellington, 10 Mo., 712; McCabe v. Lecompt, 15 Mo., 78.

be properly dismissed for the slightest variation from statutory requirements in the matter of describing the case, the authority of the person or officer making the service,1 of the time of service or any other essential particular, it was held that such notice might be executed by an agent in the name of his principal, and that a want of notice might be waived by the appellee's appearance and moving to dismiss on account of an informality in the bond."

In

81212. When Notice Serves as an Assignment of Errors. the State of New York, the notice of appeal from an inferior court seems to serve the purpose in the appellate court of an assignment of errors or bill of exceptions. On appeal, or error,, the appellant or plaintiff in error is confined to the ground of appeal assigned in the notice, or the error therein complained of, with the same strictness as parties to suits in courts of general jurisdiction are restricted to the allegations in their written pleadings. And such notice is required to point out clearly the grounds of appeal. It was accordingly held in an appeal from the judgment of the court of common pleas, that it was not sufficient for the notice to state that the judgment was against the law and evidence.

§ 1213. Grounds of Appeal. So, in case of an appeal from the judgment of a justice of the peace, upon the law, where the grounds of appeal assigned were that the evidence "was incompetent, did not support the judgment, that on it the plaintiff was not entitled to recover, and that the judgment was contrary to law," the notice was held insufficient to sustain the appeal, because it did not point out specifically the errors in the judgment appealed from. But where one good

'Tiffin v. Millington, 3 Mo., 418.

2 Hempstead v. Darby, 2 Mo., 25; Cochran v. Bird, Id., 141; Hayton v. Hope, 3 Mo., 53.

3 Runkle v. Hogan, 3 Mo., 234.

'Rector v. St. Louis Circ. Ct., 1 Mo., 607.

Delong v. Brainard, 1 Thomp. & C. (N. Y.), 1; Avery v Woodbeck, 5

Lans. (N. Y.), 493; S. C, 62 Barb., 557. See Code of Procedure, N. Y., § 353.

ground of appeal is assigned in the notice, it seems the appeal will not be dismissed, whether it be an appeal upon the law, or the facts; as the provisions of the code1 appear to apply to both alike.2

--

§ 1214. Assent to Judgment. — Another requisite of the notice under the New York practice is that it shall contain an assent that, "if the judgment be affirmed, judgment absolute may be rendered against the appellant;" but where this is omitted by mistake it may be supplied by amendment, even after the expiration of the time for appeal, nunc pro tunc.3

§ 1215. On Same Day. Under the code of civil procedure of the State of California, the filing of the notice of appeal, the undertaking and the service of notice must be effected on the same day. The notice may be served personally, or in åny of the other modes provided by statute for the service of similar papers, and when the appeal fails for the want of timely notice, a new appeal may be taken.4

5

So, also, where the practice

§ 1216. Must be Given in Time. under the code of another state, was to give ten days' notice of appeals from the judgments of justices' courts, it was held that a failure to give the notice precisely within the time would not be such a serious default as to preclude the party from the right to have his case re-heard."

81217. Personal Service not Required. The necessity for a relaxation of the strict rule requiring personal service of notice, is perhaps more apparent in the notice of appeal than in any other. Were it not for the fact that some other mode than personal delivery of a written notice to the appellee is provided by the statutes of the different states, the courts would, in cases where personal service was impossible, be inclined to look favorably upon the substitution of such other

'See Voor. Code (1864), § 371; also §§ 353, 354, note.

2

Younghaus v. Fingar, 63 Barb., 299; S. C, 47 N. Y., 99; Bixby v. Warden, 46 How. Pr., 239.

3 Mott v. Lansing, 5 Lans., 516.

Columbet v. Pacheco, 46 Cal., 650.
Code Prac. North Carolina, § 535.
Marsh v. Cohen, 68 N. C., 283.

modes as were prescribed in analogous cases. Otherwise a party who had succeeded in obtaining an unjust judgment, might, by avoiding personal service of notice, entirely defeat the right of appeal.

81218. Notice to be Given to Co-Parties. It is not always sufficient to give notice of appeal to the opposite party. The interests of a co-plaintiff or co-defendant may be adverse to those of the party who complains of error in the judgment; in which event it is incumbent upon the party appealing to give notice of such appeal to such co-plaintiff or co-defendant.1

1219. Does not Depend upon Conflict of Interest. This rule of practice is of more general application than that requiring notice of appeal to the opposite party, and does not depend upon the existence of a conflict of interests between co-parties. In the Supreme Court of the United States, it was formerly required, when one or more of the vanquished parties desired to appeal or sue out a writ of error, that a summons should be served upon those who were willing to abide the judgment, and have a severance; but latterly there has been adopted, as a substitute for such summons and severance, the service of a written notice upon such parties. And the mere allegation of the appellant, in his petition, that his co-parties failed to appear or refused to join, will not be sufficient. The record should show due service of notice upon the parties, or that they appeared and refused to join in the appeal, and that the court granted an appeal to the party who prayed for it, as to his own interest.2

Hiscock . Phelps, 2 Lans. (N. Y.), 106.

Masterson v. Herndon, 10 Wall., 416. See, also, as to statutory provis ion on the same subject, in the State of Indiana, 2 G. & H., 270, § 551. If any question can be said to be "settled" by numerous decisions, the construction of this statute, requiring notice from an appellant to his co-parties, may be considered at rest in that state. The appeal has been uniformly dismissed where notice was neglected. Knar v. Conway, 37 Ind., 257; Pittsburgh & C. R. R. Co. v. Elliott, 38 Ind., 153; Id., 183; Id., 226; Id., 266; Id., 589; Id., 427; 39 Ind., 244; Id., 393; Id., 474; 40 Ind., 142; Id., 195 · Id., 341; 41 Ind., 144; Id., 277; 42 Ind, 386; I '., 399; Id., 477; Id., 497; 43 Ind., 1; Id., 472; Id., 380; Id., 381; Id., 29.

1220. Waived by Appearance. Where, however, one of several co-plaintiffs or co-defendants appeals, and the others appear and refuse to join, this renders notice to them unnecessary, under the rule that a voluntary appearance of a party entitled to notice amounts to a waiver of such notice.' According to the same rule, the voluntary appearance of the appellee is regarded as a waiver of the notice of appeal, where such notice is required.2

V. NOTICE OF TAKING DEPOSITIONS.

§1221. When Required.

1222. Generally in Writing.

1223. What to Contain.

1224. Deemed Sufficient.

1225. Clerical Errors.

1226. Name of Officer.

1227. Witnesses Need not all be Namea.

1228. Conditional Notice Insufficient.

1229. Must be Signed.

1230. Time of Taking.

1231. Mistake in Date of Taking.

1232. General Requisites.

1233. Time of Service.

1234. Time Decided by Court.

1235. Computation of Time and Distance.

1236. Absence of Statute or Rule.

1237. Time not always Governed by Distance.

1238. Time not Fixed by Special Circumstances.

1239. Except when Unusually Short.

1240. Statutory Time may be Shortened.

1241. Objections to Time-When Taken.

1242. Party must show Himself Entitled to Time.

1243. Service of Notice.

'Rich o. Starbuck, 45 Ind., 310.

But though consent may waive error or irregularity in giving the notice, where it is necessary to the jurisdiction of the appellate court, such jurisdiction cannot be conferred by waiver of notice. Oliver v. Harvey, 5 Oreg., 360.