taking stays

in court be

low.

the undertaking, or making the deposit, mentioned in When under section 410, stays proceedings in the court below upon proceedings the judgment or order appealed from, except where it directs the sale of perishable property, in which case the court below may order the property to be sold, and the proceeds thereof to be deposited, to abide the judgment of the appellate court; and except, also, where it adjudges the defendant guilty of usurping, or intruding into, or unlawfully holding public office, civil or military, within this territory; and except, also, where the order grants, or refuses to grant, a change of the place of trial of an action.

Cases excepted.

Appellant to prepare statement on appeal.

SEC. 419. When the party who has the right to appeal wishes a statement of the case to be annexed to the record of the judgment or order, he shall, within twenty days after the entry of such judgment or order, prepare such statement, which shall state specifically the particular errors or grounds upon which he intends to rely on the appeal, and shall contain so much of the evidence as may be necessary to explain the particular errors or grounds specified, and file the same with the clerk of the court, and give notice to the opposite party, or his attorney, of such filing. The respondent may, within five days thereafter, prepare amendments to such statement, and file the same, and serve notice thereof on the opposite party. The statement and amendments which Amendments may be filed shall be presented to the judge, or court, upon notice of two days to the opposite party, and a true statement shall thereupon be settled by the judge, or court. If no amendments are filed, the statement may be presented to the judge, or court, without any notice to the respondent.

by respondent.

When

state

ment and amendments

SEC. 420. If the party shall omit to make a statement within the time above limited, he shall be deemed to have waived his right thereto; and when a statement to be deemed is made, and the parties shall omit, within the several times above limited, the one party to propose amendments, the other to notify an appearance before the

waived.

judge, they shall respectively be deemed, the former to have agreed to the statement as prepared, and the latter to have agreed to the amendments as proposed; but the judge who heard the cause, shall, notwithstanding such omission, or implied agreement, have power to correct any misstatement of facts, or of his rulings, which such statement may contain.

SEC. 421. The several periods of time above limited may be enlarged, upon good cause shown, by the judge before whom the cause was tried.

SEC. 422. The statement, when settled by the judge, shall be signed by him, with his certificate that the same has been allowed, and is correct; when the statement is agreed upon by the parties, they or their attorneys shall sign the same, with their certificate that it has been agreed upon by them, and is correct. In either case, when settled or agreed upon, it shall be filed with the clerk.

SEC. 423. A copy of the statement shall be annexed to a copy of so much of the judgment roll as shall be included in the transcript on appeal, if the appeal be from the judgment; if the appeal be from an order, to a copy of such order.

SEC. 424. The provisions of the last five preceding sections shall not apply to appeals taken from an order made upon affidavit filed; but such affidavit shall be annexed to the order, in the place of the statement mentioned in those sections.

present points relied on.

SEC. 425. On an appeal from a final judgment, the appellant shall furnish the court with a transcript of the notice of appeal, undertaking or undertakings on appeal, the pleadings or amended pleadings, as the case may be, which form the issues tried in the case, the judgment, Transcript to and such other parts of the judgment roll, and no more, as are necessary to present or explain the points relied on, and the statement, if there be one, certified by the attorneys of the parties to the appeal, or by the clerk, to be correct. On appeal from a judgment rendered on an

When appeal may be dismissed.

missal of an

appeal, or from an order, the appellant shall furnish the court with a copy of the notice of appeal, undertaking or undertakings on appeal, the judgment or order appealed from, and a copy of the papers used on the hearing in the court below, such copies to be certified in like manner to be correct. If any written opinion be placed on file, in rendering the judgment or making the order in the court below, a copy shall be furnished. If the appellant fail to furnish the requisite papers, the appeal may be dismissed.

SEC. 426. The dismissal of an appeal is in effect an Effect of dis- affirmation of the judgment or order appealed from, unless the dismissal is expressly made without prejudice to another appeal.

appeal.

may review on appeal.

SEC. 427. Upon an appeal from a judgment the court may review the verdict or decision, and any inter

What court mediate order or decision excepted to, which involves the merits or necessarily affects the judgment, except a decision or order from which an appeal might have been taken.

Powers of the court.

SEC. 428. Upon an appeal from a judgment or order, the appellate court may reverse, affirm, or modify the the judgment or order appealed from, in the respect mentioned in the notice of appeal, and as to any or all of the parties; and may set aside, or confirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if necessary or proper, order a new trial. When the judgment or order is reversed or modified, the appellate court may appellate make complete restitution of all property and rights lost by the erroneous judgment or order, so far as such restitution is consistent with protection of a purchaser of property at a sale ordered by the judgment, or had under process issued upon the judgment, on the appeal from which the proceedings were not stayed; and for relief in such cases the appellant may have his action against the respondent, enforcing the judgment for the proceeds of the sale of the property, after deducting therefrom the expenses of the sale.

Appeal brought to a

SEC. 429. Appeals in the supreme court may be brought to a hearing by either party, upon notice of three days to the opposite parties. Before the argument each party shall furnish to the other, and each of the hearing. justices, a copy of his points and authorities; or either party may file one copy thereof with the clerk, who shall cause the requisite copies to be made.

SEC. 430. When judgment is rendered upon appeal, it shall be certified by the clerk of the supreme court to the clerk with whom the judgment roll is filed, or the order appealed from is entered. In cases of appeal from the judgment, the clerk with whom the roll is filed shall attach the certificate to the judgment roll, and enter a minute of the judgment of the supreme court on the docket against the original entry. In cases of appeal from an order, the clerk shall enter at length, in the records of the court, the certificate received, and minute against the entry of the order appealed from reference to the certificate, with a brief statement that such order has been affirmed, reversed, or modified, as the case may be, by the supreme court on appeal.

CHAPTER II.— Appeals to the Supreme Court from the
District Courts.

SEC. 431. An appeal may be taken to the supreme court from the district courts in the following cases:

First. From a final judgment, or any part thereof, entered in an action or special proceeding commenced in those courts, or brought into those courts from other

courts.

Second. From an order granting or refusing a new trial; from an order granting or dissolving an injunetion; from an order refusing to grant or dissolv: an injunction; from an order dissolving or refusing to dissolve an attachment; from an order 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 partitions as determines the rights

Entry of judg clerk."

ment on appeal by the

Cases in

peal may be taken from probate to district

courts.

and interests of the respective parties, and directs partition to be made.

CHAPTER III.— Appeals from Probate to District

Courts.

SEC. 432. An appeal may be taken from a probate court to the district court of the district in which the probate court is held, in the following cases:

First. From an order or decree admitting a will to probate or refusing the same.

Second. From an order setting apart property or making an allowance for the widow or children.

Third. From an order granting letters testamentary or of administration, or appointing a guardian of an infant or of an insane person, or of a person incompetent to manage his property, or refusing to grant such letters or to make such appointment, or making such letters of appointment.

Fourth. From an order directing the sale or conveyance of real property.

Fifth. From an order or decree by which a debt, claim, legacy, or distributive share is allowed, or payment thereof directed, or by which such allowance or direction is refused.

Sixth.

From an order made on the settlement of an executor, administrator, or guardian.

SEC. 433. The appeal shall be taken within thirty which shall days after the order or decree appealed from is entered

Time

be taken.

in

Appeal

brought to a hearing.

in which par

with the clerk.

SEC. 434. Appeals from the probate court shall be brought to a hearing at the earliest period practicable. For the failure to prosecute an appeal or unnecessary delay in bringing it to a hearing, the district court may order the appeal to be dismissed.

SEC. 435. In cases other than those provided for in Other cases section numbered 432, any party feeling aggrieved by the judgment of the probate court in any civil action may appeal therefrom to the district court for the county

peal.

may ap