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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 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 affidavit 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 undertaking on appeal.
The foregoing provisions in regard to appeals do not apply to appeals to the Superior Court from Justices' or Police Courts.
Appeals from Superior Courts.
1. From a final judgment entered in an action or special proceeding commenced in a Superior Court, or brought into a Superior Court from another Court.
2. From an order granting or refusing a new trial, or granting or dissolving an injunction, or refusing to grant or dissolve an injunction, or dissolving or refusing to dissolve an attachment, or 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.
3. From a judgment or order granting or refusing to grant, revoking or refusing to revoke, letters testamentary, or of administration, or of guardianship; or admitting or refusing to admit a will to probate, or against or in favor of the validity of a will, or revoking the probate thereof; or against or in favor of setting apart property, or making an allowance for a widow or child; or against or in favor of directing the partition, sale, or conveyance of real property, or settling an account of an executor, or administrator, or guardian; or refusing allowing, or directing the distribution or partition of an estate, or any part thereof, or the payment of a debt, claim, or legacy, or distributive share; or confirming or refusing to confirm a report of an appraiser setting apart a homestead.
The foregoing does not apply in cases appealed from Justices', Police, or other inferior Courts, except cases of forcible entry and detainer, and cases involving the legality of any tax, impost, assessment, toll, or municipal fine; or in which the demand, exclusive of interest or the value of the property in controversy, amounts to three hundred dollars.
Appeals from Justices' or Police Courts.
Any party dissatisfied with a judgment rendered in a civil action in a Police or Justice's Court, may appeal therefrom to the Superior Court of the county, at any time within thirty days after the rendition of the judgment.
Parties appealing on questions of law alone, must, within ten days from rendition of judgment, prepare a statement of the case, and file the same with 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 Superior Court.
An appeal from a Justice's or Police 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 Superior Court. When the action is for the recovery, or to enforce or foreclose a lien on specific personal property, the undertaking must be conditioned that the appellant will pay the judgments 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 Superior Court, and will obey any order made by the Court therein. When the judgment appealed from directs the delivery of possession of real property, the execution of the same cannot be stayed unless a written undertaking be executed on the part of the appellant, with two or more sureties, to the effect that during the possession of such property by the appellant he will not commit or suffer to be committed, any waste thereon; and if the appeal be dismissed or withdrawn, or the judgment affirmed, or judgment be recovered against him in the action in the Superior Court, he will pay the value of the use and occupation of the property, from the time of the appeal until the delivery of possession
thereof, or that he will pay any judgment and costs that may be recovered against him in said action in the Superior Court, not exceeding a sum to be fixed by the Justice of the Court from which the appeal is taken, and which sum must be specified in the undertaking. 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, 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 Superior Court, after notice, may order the appeal to be dismissed, with costs; and if it appear to such Court that the appeal was made solely for delay, it may add to the costs such damages as may be just, not exceeding twenty-five per cent. of the judgment appealed from.
A new trial may be granted for any of the following causes, materially affecting the substantial rights of the party aggrieved:
1. Irregularity in the proceedings of the Court, jury, or adverse party, or any order of the Court, or abuse of discretion, by which either party was prevented from having a fair trial.
2. Misconduct of the jury, and whenever any one or more of the jurors have been induced to assent to any general or