« PreviousContinue »
in the next section, after the expiration of two years since the filing of the judgment-roll, unless notice thereof is given, for a day within the two years; and either the hearing is adjourned, by one or more orders, until after the expiration of the two years; or the term, for which it is thus noticed, is not held. In the latter event, the motion may be re-noticed for, and heard at, the next term at which it can be made, held not less than ten days after the day, when the first term was appointed to be held.
( 1291. Exceptions in cases of disability.
If the persor, against whom the judgment is rendered, is, at the time of filing the judgment-roll, either
1. Within the age of twenty-one years; or 2. Insane; or 3. Imprisoned on a criminal charge, or in execution, upon conviction of a criminal offence, for a term less than for life;
The time of such a disability is not a part of the time, limited by the last section; except that the time, within which the motion may be heard, cannot be extended more than five years by such a disability, nor, in any case, more than one year after the disability ceases. From 2 R. S. 594, 88 22 and 24. § 1292. Restitution; when directed.
Where a judgment is set aside for any cause, upon motion, the court may direct and enforce restitution, in like manner, with like effect, and subject to the same conditions, as where a judgment is reversed upon appeal. See § 1323, poet.
TITLE 1.-General Provisions, Relating to the Appeals Provided for in this
General provisions, relating to the appeals provided for in
Sec. 1293. Writs of error abolished,
1294. When party may appeal.
$ 1293. Writs of error abolished.
The writ of error in a civil action or special proceeding has been abolished.
Substituted for Co. Proc., § 333, and the first sentence of $ 457.
$ 1294. When party may appeal. A party aggrieved may appeal, in a case prescribed in this chapter, except where the judgment or order, of which he complains, was rendered or made upon his default. Co. Proc., $ 325, am'd by adding the final clause See $ 2568.
$ 1295. Parties to appeal; how designated. Title of
The party or person appealing is designated as the appellant, and the adverse party as the respondent. After an appeal is taken to another court, the name of the appellate court must be substituted, for that of the court below, in the title of the action or special proceeding, and in any case, the name of the county, if it is mentioned, may be omitted; otherwise the title shall not be changed, in consequence of the appeal. Co. Proc., $ 326, am'd.
§ 1296. When a person entitled to become a party may appeal.
A person aggrieved, who is not a party, but is entitled by law to be substituted, in place of a party; or who has acquired, since the making of the order, or the rendering of the judgment appealed from, an interest, which would have entitled him to be so substituted, if it had been previously acquired, may also appeal, as prescribed in this chapter, for an appeal by a party. But the appeal cannot be heard, until he has been substituted in place of the party; and if he unreasonably neglects to procure an order of substitution, the appeal may be dismissed, upon motion of the respondent. (See 8 2569.)
$ 1297. Appeal when adverse party has died.
Where the adverse party has died, since the making of the order, or the rendering of the judgment appealed from, or where the judgment appealed from was rendered, after his death, in a case prescribed by law, an appeal may be taken, as if he was living; but it cannot be heard, until the heir, devisee, executor, or administrator, as the case requires, has been substituted as the respondent. In such a case, an undertaking required to perfect the appeal, or to stay the execution of the judgment or order appealed from, must recite the fact of the adverse party's death; and the undertaking enures, after substitution, to the benefit of the person substituted.
$ 1298. [Am'd, 1877.] Proceedings, when party dies pending appeal.
Where either party to an appeal dies, before the appeal is heard, or has heretofore died, and the appeal has not been heard, if an order, substituting another person in his place, is not made, within three months after his death, or, where he has heretofore died, within three months after this section takes effect, the court, in which the appeal is pending, may, in its discretion, make an order, requiring all persons interested in the decedent's estate, to show cause before it, why the judgment or order appealed from should not be reversed or affirmed, or the appeal dismissed, as the case requires. The order must specify a day, when cause is to be shown, which must be not less than six months after making the order; and it must desigpate the mode of giving notice to the persons interested. Upon the return day of the order, or at a subsequent day, appointed by the court, if the proper person has not been substituted, the court, upon proof, by affidavit, that notice has been given, as required by the order, may reverse or affirm the judgment or
See $ 2571. Amended 1909.
order appealed from, or dismiss the appeal, or make such further order in the premises, as the case requires. Substitute for Co. Proc., part of § 121. $ 1299. Order of substitution.
Where the appeal is from one court to another, an application for an order of substitution, as prescribed by the last three sections, must be made to the appellate court. Where personal service of notice of application for an order has been made, within the State, upon the proper representative of the decedent, an order of substitution may be made, upon the application of the surviving party. § 1300. Appeal, how taken.
An appeal must be taken, by serving, upon the attorney for the adverse party, as prescribed in article third of title sixth of chapter eighth of this act, and upon the clerk, with whom the judgment or order appealed from is entered, by filing it in his office, a written notice, to the effect, that the appellant appeals from the judgment or order, or from a specified part thereof.
Co. Proc., $ 327, first sentence.
$ 1301. When notice of appeal to specify interlocutory judgment, etc.
Where the appeal is from a final judgment, or from a final order in a special proceeding, and the appellant intends to bring up, for review thereupon, an interlocutory judgment, or an intermediate order, he must, in the notice of appeal, distinctly specify the interlocutory judgment, or intermediate order, to be reviewed. See 88 1316 and 1317, post. $ 1302. Proceedings, if attorney or party not found.
If the attorney for the adverse party is dead; or if he has been removed, and notice of the removal has been served upon the appellant's attorney, and another attorney has not been substituted in his place; or if, for any reason, service of a notice of appeal, upon the proper attorney for the adverse party, cannot, with due diligence, be made within the State, the notice of appeal may be served upon the respondent, in the manner prescribed by law for serving it upon an attorney. If personal service upon the respondent cannot, with due diligence, be so made within the State, the notice of appeal may be served upon him, and notice of the subsequent proceedings may be given to him, as directed by a judge of the court, in or to which the appeal is taken. $ 1303. Defects in proceedings may be supplied.
Where the appellant, seasonably and in good faith, serves the notice of appeal, either upon the clerk or upon the adverse party, or his attorney, but omits, through mistake, inadvertence, or excusable neglect, to serve it upon the other, or to do any other act, necessary to perfect the appeal, or to stay the execution of the judgment or order appealed from; the court, in or to which the appeal is taken, upon proof, by affidavit, of the facts, may, in its discretion, permit the omission to be supplied, or an amendment to be made, upon such terms as justice requires. Co. Proc.. part of $327, am'di.
$ 1304. Order appealed from must be entered. Proceedings to compel entry.
An appeal cannot be taken from an order made by a judge, out of court, until it is entered in the office of the proper clerk. Where such an order has not been so entered, or the papers, upon which it was founded, have not been filed in the same clerk's office, the judge who made it, or, if he is absent, or unable or disqualified to act, a judge of the court, in or to which an appeal therefrom may be taken, must, upon the application of a party or other person, entitled to take such an appeal, make an order, requiring the omission to be supplied, within a specified time after service of a copy of the order made by him. Upon proof, by affidavit, that a copy of the latter order has been served, and that the omission has not been supplied, the same judge may make, upon notice, an order revoking and annulling the original order. The provisions of the last section but one apply to the service of an order, or a notice, as prescribed in this section. Substitute for portions of Co. Proc., $ 350. $ 1305. Security may be waived.
An undertaking, which the appellant is required, by this chapter, to give, or any other act which he is so required to do, for the security of the respondent, may be waived by the written consent of the respondent. Co. Proc., $ 334, last sentence, am'd.
$ 1306. Deposit, in lieu of undertaking.
Where the appellant is required, by this chapter, to give an undertaking, he may, in lieu thereof, deposit with the clerk, with whom the judgment or order appealed from is entered, a sum of money, equal to the amount for which the undertaking is required to be given. The deposit has the same effect, as filing the undertaking; and notice that it has been made, has the same effect, as notice of the filing and service of a copy of the undertaking. The court, wherein the appeal is pending, may direct the mode, in which the money shall be kept and disposed of, during the pendency, or after the determination of the appeal. id., part of $ 335, am'd. 9 1307. Undertaking must be filed. An undertaking, given as prescribed in this chapter, must be filed with the clerk, with whom the judgment or order appealed from is entered. Id., 343, first sentence. See Rule 4.
$ 1308. [Am'd, 1895.] New undertaking to be given, when sareties are insolvent, etc.
The court, in which the appeal is pending, upon satisfactory proof, by affidavit, that since the execution of an undertaking, given as prescribed in this chapter, one or more of the sureties therein have become insolvent; or that his or their circumstances have become so precarious, that there is reason to apprehend, that the undertaking is not sufficient for the security of the respondent; may make an order, requiring the appellant to file a new undertaking, and to serve a copy thereof, as required with