§ 1319. Mode of enforcing affirmed or modified judg

ment.

Where a judgment, from which an appeal has been taken, from one court to another, is wholly or partly affirmed, or is modified, upon the appeal, it must be enforced, by the court in which it was rendered, to the extent permitted by the determination of the appellate court, as if the appeal therefrom had not been taken.

§ 1320. Id.; as to order.

Where a final order, from which an appeal has been taken, from one court to another, as prescribed in title fifth of this chapter, is wholly or partly affirmed, or is modified, upon the appeal, the appellate court may enforce its order, or may direct the proceedings to be remitted, for that purpose, to the court below, or to the judge who made the order appealed from.

$ 1321. Mode of cancelling docket of reversed or modified judgment.

Where a final judgment for a sum of money, or directing the payment of a sum of money, has been reversed, or has been affirmed as to part only of the sum, upon an appeal, taken as prescribed in title third or fourth of this chapter; and an appeal to the court of appeals is not taken and perfected, and the security required to stay execution is not given, within ten days after the entry of the judgment upon the appeal, in the clerk's office where the judgment appealed from is entered, the clerk must make a minute of the reversal of the judgment, or of the amount to which it has been reduced, upon his docket-book, in each place, where the judgment is docketed. A transcript of the docket, as thus corrected, must be furnished by him, and may be filed in any county clerk's office, where the original judgment is docketed, as prescribed by law, with respect to the original docket; and thereupon the county clerk must correct his docket accordingly. The lien of a judgment the docket of which is not corrected, as prescribed in this section, remains unaffected by the reversal or modification thereof, until the decision of the court of appeals, upon an appeal from the judgment reversing or modifying the same, or the expiration of the time to take such an appeal.

Am'd by ch. 416 of 1877.

§ 1322. Id.; when reversal, etc., was by court of appeals. Where a final judgment for a sum of money, or directing the payment of a sum of money, has been reversed, or affirmed as to part only of the sum, upon an appeal to the court of appeals, the docket may be corrected, as prescribed in the last section, at any time after the remittitur has been filed in the court below.

§ 1323. Restitution; when awarded.

When a final judgment or order is reversed or modified, upon appeal, the appellate court, or the general term of the same court, as the case may be, may make or compel restitution of property, or of a right lost by means of the erroneous judgment or order; but not so as to affect the title of a purchaser in good faith and for value. When property

has been sold, the court may compel the value, or the purchase price, to be restored, or deposited to abide the event of the action, as justice requires. When the appeal is from a judgment in favor of the owner of real estate, in an action to set aside a conveyance thereof, or in an action to compel the specific performance of a contract for the sale thereof, such owner shall have the same right to sell or dispose of the same as though no appeal had been taken; unless the appellant shall file with the clerk of the court a written undertaking, in a sum fixed by the court, or a judge thereof, upon a notice to the respondent of at least

ten days, and to be approved by such court or judge, to the effect that the appellant will, in case the judgment appealed from shall be affirmed, pay to such owner such damages as he may suffer by reason of such appeal, not exceeding the amount of the penalty in such undertaking. Such undertaking may be filed at any time during the appeal, but any sale of such real estate or contract to sell the same in good faith and for a valuable consideration, after said judgment and before the filing of such undertaking, shall be as valid as if such undertaking had not been filed. In case such undertaking shall not be filed, the respondent shall be entitled, at any time during such appeal, to an order discharging of record any notice of pendency of action filed in the action, and, in an action to compel the specific performance of a contract for the sale of real estate, also cancelling and discharging of record said contract, in case the same has been recorded.

From Co. Proc. § 330.

Am'd by ch. 416 of 1877; ch. 529 of 1880, and ch. 650 of 1899.

If the judgment directs a sale of real property upon the foreclosure of a mortgage, and an appeal is taken by a party against whom payment of the deficiency is awarded by such judgment, the undertaking must also provide that if the judgment is affirmed or the appeal is dismissed, the appellant will pay any deficiency which may occur upon the sale, with interest and costs, and all expenses chargeable against the proceeds of the sale, not exceeding a sum fixed by a judge of the court below.

From Co. Proc. § 338.

Am'd by ch. 542 of 1879, and ch. 119 of 1897.

§ 1332. Construction of the last five sections.

Where the judgment or order from which an appeal is taken to the court of appeals, affirms a judgment or order to the effect specified in either of the last five sections, the undertaking must be the same as if the judgment or order from which the appeal is so taken, was to the same effect as the judgment or order so affirmed.

§ 1333. The last six sections qualified.

The last six sections do not extend to a case where it is specially prescribed by law that an appeal may be taken, or the execution of a judgment or order appealed from may be stayed, without security, or where the security to be given, for either purpose, is specially regulated by law.

See 88 1313, 1314.

§ 1334. Undertakings may be in one instrument; form and service thereof.

Where two or more undertakings are required to be given, as prescribed in this title, they may be contained in the same instrument, or in different instruments, at the option of the appellant. Each undertaking, given as prescribed in this title, must be executed by at least two sureties, and must specify the residence of each surety therein. A copy thereof, with a notice showing where it is filed, must be served on the attorney for the adverse party with the notice of appeal, or before the expiration of the time of appeal.

From Co. Proc. § 340.

Am'd by ch. 542 of 1879.

§ 1335. Exception to sureties; justification.

It is not necessary that the undertaking should be approved; but attorney for the respondent may, within ten days after the service of a copy of the undertaking with notice of the filing thereof, serve upon the attorney for the appellant, a written notice that he excepts to the sufficiency of the sureties. Within ten days thereafter the sureties, or other sureties in a new undertaking to the same effect, must justify before the court below, or a judge thereof or a referee appointed by the same, or a county judge. At least five days' notice of the justification must be given. A referee may be appointed upon the motion of either party, or upon the court's own motion to take the justification of such sureties and to report the evidence upon the same to the court or judge with his opinion. The court may further direct that either party shall pay the expenses of such reference. If the court or judge finds the sureties sufficient he must indorse his allowance of them upon the undertaking, or a copy thereof, and a notice of the allowance must be served upon the attorney for the exceptant. The effect of a failure so to justify and procure an allowance. is the same as if the undertaking had not been given. The court shall also have power, in case it shall be made to appear to its satisfaction upon motion, that the

does not stay the execution of the judgment or order, until the appellant gives a written undertaking, to the effect, that if the judgment or order appealed from, or any part thereof, is affirmed, or the appeal is dismissed, he will pay the sum, recovered or directed to be paid, by the judgment or order, or the part thereof, as to which it is affirmed. But where the judgment or order directs the payment of money in fixed installments, the undertaking must be to the effect, that the appellant will pay each installment, which becomes payable, pending the appeal, or the part thereof as to which the judgment or order is affirmed, not exceeding a sum specified in the undertaking, which must be fixed by a judge of the court below. The court below may, at any time afterwards, upon satisfactory proof, by affidavit, that the sum so fixed is insufficient in amount, make an order, requiring the appellant to give a further undertaking, to the same effect, in a sum and within a time, specified in the order. A failure to comply with such an order has the same effect as if no undertaking had been given, as prescribed in this section.

From Co. Proc. part of § 335.

§ 1328. Id.; on judgment, etc., for delivery of property. If the appeal is taken from a judgment or order, directing the assignment or delivery of a document, or of personal property, it does not stay the execution of the judgment or order, until the thing directed to be assigned or delivered, is brought into the court below, or placed in the custody of an officer or receiver, designated by that court; or the appellant gives a written undertaking as prescribed in the next section.

From part of Co. Proc. § 336.

§ 1329. Id.; on judgment for a chattel.

If the appeal is taken from a judgment for the recovery of a chattel, it does not stay the execution of the judgment, until the appellant gives a written undertaking, in a sum fixed by the court below, or a judge thereof, to the effect that the appellant will obey the direction of the appellate court upon the appeal.

From Id.

§ 1330. Id.; on judgment, etc., directing conveyance.

If the appeal is taken from a judgment or order, directing the execution of a conveyance, or other instrument, it does not stay the execution of the judgment or order, until the instrument is executed and deposited with the clerk, with whom the judgment or order is entered, to abide the direction of the appellate court.

From Co. Proc. § 337

§ 1331. Id.; on judgment, etc., for the possession of real property.

If the judgment or order directs the sale or the delivery of the possession of real property, or entitles the respondent to the immediate possession thereof, an appeal does not stay the execution of the judgment or order until the appellant gives a written undertaking to the effect that he will not, while in possession of the property, commit or suffer to be committed, any waste thereon; and if the property is in his possession or under his control, the undertaking must also provide that if the judgment or order is affirmed or the appeal is dismissed, and there is a deficiency upon a sale, he will pay the value of the use and occupation of such property, or the part thereof as to which the judgment or order is affirmed, from the time of taking the appeal until the delivery of the possession thereof, pursuant to the judgment or order, not exceeding a specified sum fixed by a judge of the court below.

which the judgment of the court below was rendered. The court below, or a judge thereof, may extend the time, limited by law, within which the papers must be transmitted to the court of appeals, for the purpose of enabling the appellant to procure the case to be prepared or settled. From Co. Proc. §§ 265 and 333.