Page images
PDF
EPUB

CHAPTER XI.

APPEALS.

Appeals to Supreme Court from a District Court.
Within what time appeals may be taken:

1.

From a final judgment in an action or special proceeding commenced in the Court in which the same is rendered, within one year after the entry of judgment. But an exception to the decision or verdict, on the ground that it is not supported by the evidence, cannot be reviewed on an appeal from the judgment, unless the appeal is taken within sixty days after the rendition of the judgment.

2. From a judgment rendered on an appeal from an inferior Court, within ninety days after the entry of such judgment.

3. 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 injunction; from an order dissolving or refusing to dissolve an attachment; from an order granting or refusing to grant a change of the place of trial; from any special order made after the final judgment, and from an interlocutory judgment in actions for partition of real property, within sixty days after the order or interlocutory judgment is made and entered in the minutes of the Court, or filed with the clerk.

An appeal is taken by filing with the clerk of the Court in which the judgment or order appealed from is entered, a notice stating the appeal from the same, or some specific part thereof, and serving a similar notice on the adverse party or his attorney. The order of service is immaterial, but the appeal is ineffectual for any purpose unless within five days after service of the notice of appeal, an undertaking be filed, or a deposit of money be made with the clerk, as hereinafter provided, or the undertaking be waived by the adverse party in writing.

The undertaking on appeal must be in writing, and must be executed on the part of the appellant by at least two

sureties, to the effect that the appellant will pay all damages and costs which may be awarded against him on the appeal, or on a dismissal thereof, 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.

If the appeal be from a judgment or order directing the payment of money, it does not stay the execution of the judgment or order, unless a written undertaking be executed on the part of the appellant, by two or more sureties, to the effect that they are bound in double the amount named in the judgment or order; that if the judgment or order appealed from, or any part thereof, be affirmed, or the appeal be dismissed, the appellant will pay the amount directed to be paid by the judgment or order, or the part of such amount as to which the judgment or order is affirmed, if affirmed only in part, and all damages and costs which may be awarded against the appellant upon the appeal; and that if the appellant does not make such payment within thirty days after the filing of the remittitur from the Supreme Court, in the Court from which the appeal is taken, judgment may be entered on motion of the respondent in his favor against the sureties, for such amount, together with the interest that may be due thereon, and the damages and costs which may be awarded against the appellant upon the appeal. If the judgment or order appealed from be for a greater amount than two thousand dollars, and the sureties do not state in their affidavits of justification accompanying the undertaking, that they are each worth the sum specified in the undertaking, the stipulation may be that the judgment to be entered against the sureties shall be for such amounts only as in their affidavits they may state that they are severally worth, and judgment may be entered against the sureties by the Court from which the appeal is taken, pursuant to the stipulations therein designated. When the judgment or order appealed from is made payable in a specified kind of money or currency, the judgment entered against the sureties upon the undertaking must be made payable in the same kind of money or currency.

When an appeal is perfected, it stays all further proceedings in the Court below, upon the judgment or order appealed from, or upon the matters embraced therein, and releases from levy property which has been levied upon under execution issued upon such judgment.

The adverse party may except to the sufficiency of the sureties to the undertakings on appeal.

The foregoing provisions in regard to appeals do not apply to appeals to the County Court from Justices' or Police Courts.

Appeals from Probate Courts to District Courts in Probate Matters.

An appeal may be taken to the District Court of the county from a judgment or order of the Probate Court in probate

matters:

1. Granting or refusing, 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.

5. Against or in favor of directing the partition, sale, or conveyance of real property.

6. Settling an account of an executor, or administrator, or guardian.

7. Refusing, allowing, or directing the distribution or partition of an estate, or any part thereof, or the payment of a debt, claim, legacy, or distributive share.

8. Confirming a report of an appraiser setting apart the homestead.

Appeals from Probate and Justices' Courts to
District Courts.

Any party dissatisfied with a judgment rendered in a civil action in a Probate or Justice's Court may appeal therefrom to

the District Court of the county, at any time within thirty days after the rendition of the judgment.

Parties appealing on questions of law alone, must prepare a statement for the Justice or Judge. When the appeal is taken on questions of fact, or questions of both law and fact, no statement need be made, but the action must be tried anew in the District Court.

An appeal from a Justice's or Probate Court is not effectual for any purpose, unless an undertaking be filed, with two or more sureties, in the sum of one hundred dollars, for the payment of the costs on the appeal; or if a stay of the proceedings be claimed, in a sum equal to twice the amount of the judgment, including costs, when the judgment is for the payment of money; or twice the value of the property, including costs, when the judgment is for the recovery of specific personal property; and must be conditioned, when the action is for the recovery of money, that the appellant will pay the amount of the judgment appealed from, and all costs, if the appeal be withdrawn or dismissed, or the amount of any judgment and all costs that may be recovered against him in the District Court. When the action is for the recovery of specific personal property, the undertaking must be conditioned that the appellant will pay the judgment and costs appealed from, and obey the order of the Court made therein, if the appeal be withdrawn or dismissed, or any judgment and costs that may be recovered against him in said action in the District Court, and will obey any order made by the Court therein. A deposit of the amount of the judgment, including all costs, appealed from, or of the value of the property, including all costs, in actions for the recovery of specific personal property, with the Justice or Judge, is equivalent to the filing of the undertaking. The adverse party may except to the sufficiency of the sureties within five days after the filing of the undertaking; and unless they or other sureties justify before the Justice or Judge before whom the appeal is taken, within five days thereafter, upon notice to the adverse party, to the amounts stated in their affidavits,

the appeal must be regarded as if no such undertaking had been given.

On filing the above undertaking, execution must be stayed. For a failure to prosecute an appeal, or unnecessary delay in bringing it to a hearing, the District Court, after notice, may order the appeal to be dismissed.

CHAPTER XII.

LIENS.

Of the enforcement of liens.

Every person performing labor upon, or furnishing materials to be used in the construction, alteration, or repair of any mining claim, building, wharf, bridge, ditch, flume, tunnel, fence, machinery, railroad, wagon-road, aqueduct to create hydraulic power, or any other structure, or who performs labor in any mining claim, has a lien upon the same for his work or labor done or materials furnished by each, respectively, whether done or furnished at the instance of the owner of the building or other improvement, or his agent, but the aggregate amount of such liens must not exceed the amount which the owner would be otherwise liable for.

Any sub-contractor, material-man, laborer, or other person performing labor or furnishing materials for a contractor who is entitled to a lien under the provisions above stated, may, at any time, serve upon the owner or his agent, or the person employing the contractor, written notice of the amount due him for such labor or materials, and such sub-contractor, materialman, laborer or other person, may have a lien for such amount, but not exceeding the amount then or thereafter due such contractor from such owner, or person employing him, under the contract. And any person furnishing materials, or performing labor for a sub-contractor, may by like notice to the contractor be subrogated to the rights of such sub-contractor.

« PreviousContinue »