TITLE III. Vacating or setting aside a judgment, for irregularity or error in fact. § 1282. Motion to set aside judgment for irregularity; when it may be heard. 1283. Motion to set aside judgment 1284. Id.; after a party's death. 1287. To whom notice of the motion must be given. 1288. Id.; when real property recov ered by the judgment has been conveyed. 1289. How notice given under this titie. 1290. Within what time motion to be made. 1291. Exceptions in cases of disability. 1292. Restitution; when directed. § 1282. A motion to set aside a final judgment, for irregularity, shall not be heard, after the expiration of one year since the filing of the judgment-roll; unless notice thereof is given for a day within the year, and either the hearing is adjourned, by one or more orders, until after the expiration of the year; 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. § 1283. A motion to set aside a final judgment, rendered in a court of record, for error in fact, not arising upon the trial, may be made by the party against whom it is rendered; or, if an execution has not been issued thereon, and the judgment has not been wholly or partly satisfied or enforced, by the party in whose favor it is rendered. 1284. A like motion may be made, after the death of a party entitled to make it, as prescribed in the last section, by the following persons: 1. Where the judgment awards a sum of money, or a chattel, or an interest in real property, which is declared by law to be assets, the motion may be made by his executor or administrator. 2. Where the judgment awards real property, or the possession thereof, or where the title to or an estate or interest in real property is determined or affected thereby, the motion may be made by the heir of the decedent, to whom the real property descended, or might have descended, or by the person to whom he devised it. 3. Where the judgment is rendered against or in favor of two or more persons, the motion may be made, jointly, by the survivor, and the person who would have been entitled to make it, if the judgment had been rendered in favor of or against the decedent only. § 1285. A motion may be made, either before or after the death of the defendant, by a person, who is not a party, to set aside, for error in fact, not arising upon the trial, a judgment, rendered in an action against a tenant for life, or for years, awarding real property, or the possession of real property, in which the person making the motion has an estate, or interest, in reversion or remainder. 1286. Where two or more persons are entitled to move to set aside a judgment, as prescribed in the last three sections, one or more of them may move separately; but, in that case, notice of the motion must be given to those who do not join therein, in like manner as if they were adverse par § 1287. Notice of a motion to set aside a final judgment, for error in fact, not arising upon the trial, must be given to the adverse party, or, in case of his death, to each person who might have moved, as against the moving party, to set aside the judgment for the same cause, as prescribed in this title. Where the motion is made by the party against whom the judgment is rendered, or by his heir, devisee, executor, or administrator, service of the notice, upon the attorney of record for the party, in whose favor the judgment is rendered, has the like effect, as if it was served upon the party. § 1288. Where the judgment awards real property, or the possession thereof, or where the title to, or an estate or interest in, real property is determined or affected thereby, and the real property, or estate, or interest therein, has been conveyed, by the adverse party, more than eight days before the hearing of the motion, notice of the motion must also be given to each actual occupant of the property, claiming under the convey ance. § 1289. Notice must be given, in a case specified in this title, by personal service of a written notice, or of an order to show cause why the motion should not be granted; or, if a person entitled to notice cannot, with due diligence, be found within the State, in any manner which the court, or a judge thereof, directs in an order to show cause, or which the court directs in a subsequent order. § 1290. A motion to set aside a final judgment, for error in fact, not arising upon the trial, shall not be heard, except as specified in the next section, after the expiration of two years since the filing of the judgmentroll, 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. If the person 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. § 1292. 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. CHAPTER XII. APPEALS. TITLE I. GENERAL PROVISIONS, RELATING TO THE APPEALS PROVIDED FOR IN THIS CHAPTER. TITLE II.-APPEAL TO THE COURT OF APPEALS. TITLE III-APPEAL TO THE SUPREME COURT FROM AN INFERIOR COURT. TITLE IV.-APPEAL TO THE GENERAL TERM OF THE SUPREME COURT, OR OF A SUPERIOR CITY COURT. TITLE V.-APPEAL FROM A FINAL DETERMINATION IN A SPECIAL PROCEED ING. TITLE I. General provisions, relating to the appeals provided for in this chapter. § 1293. Writs of error abolished. 1296. When a person entitled to be- 1298. Proceedings, when party dies 1299. Order of substitution. 1303. Defects in proceedings may be 1304. Order appealed from must be 1305 Security may be waived. etc. 309. Action upon undertaking, when not to be brought. § 1310. When appeal stays proceedings; effect thereof. 1311. Levy upon personal property. 1315. Papers to be transmitted to ap- 1316. Interlocutory judgment, or intermediate order, may be reviewed. 1317. Judgment or order on appeal. 1319. Mode of enforcing affirmed or ment. 1322. Id.; when reversal, etc., was by court of appeals. 1323. Restitution; when awarded. 1293. The writ of error in a civil action or special proceeding has been abolished. § 1294. 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. § 1295. 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. § 1296. 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 mak ing of the order, or the rendering of the judgment appealed from, an interest, which would have entitied 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. § 1297. Where the adverse party has died, since the making of the order, or the rendering of the judgment appealed from, or where the judg ment 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.] 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 designate 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 order appealed from or dismiss the appeal, or make such further order in the premises, as justice requires. § 1299. 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 representatives of the decedent, an order of substitution may be made, upon the application of the surviving party. 1300. 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 aet, 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. for re § 1301. Where the appeal is from a final judgment or from a final order in a special proceeding, and the appellant intends to bring up, View 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. § 1302. 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. 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, inadvertance, or excusable neglect, to serve it upon the other, or to do any cther 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. § 1304. 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 persons, 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 sup plied, 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. 1305. 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. 1306. 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 tiling 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 extermination of the appeal. § 1307. An undertaking, given as prescribed in this chapter, must be filed with the clerk, with whom the judgment or order appealed from is entered. § 1308. 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, the [that] there is reason to apprehend, that the undertaking is not sufficient for the security of the respondent; may make an order, requiring the appel lant to file a new undertaking, and to serve a copy thereof, as required with |