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 make complete restitution of all property and rights lost by the erroneous judgment or order; and when it appears to the appellate court that the appeal was made for delay, it may add to the costs such damages as may be just.

Sec. 379. 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, 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 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.

CHAPTER II.

APPEALS TO THE SUPREME COURT FROM THE DISTRICT COURTS.

Sec. 380. When an appeal may be taken.

Sec. 381. Appellants shall file undertaking within five days.
Sec. 382. Undertaking on appeal from a money judgment.
Appeal from a judgment for delivery of documents or
personal property.

Sec. 383.

Sec. 384.

Appeal from a judgment directing the execution of a

conveyance, etc.

Sec. 385. An undertaking on appeal from a judgment concerning real property.

Sec. 386. Stay of proceedings, the security on appeal may limited in case of executor, &c.

Sec. 387. Undertaking may be in one instrument or several.
Sec. 388. Justification of sureties on undertaking on appeal.

be

Sec. 389. Undertaking in cases not specified above.

Sec. 390. Appeals may be brought to a hearing on notice. Sec. 391. On judgment on appeal a remittatur shall be certified to the clerk of the court below.

Sec. 380. An appeal may be taken to the supreme court from the district courts in the following cases: First. From a final judgment entered in an action or special proceeding commenced in those courts or brought in thcse courts from other courts. Second. 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 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.

Sec. 381. To render an appeal effectual for any purpose in any case, a written undertaking shall 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, not exceeding three hundred dollars, or that sum shall be deposited with the clerk with whom the judgment or order was entered to abide the result of the appeal. Such undertaking shall be filed or such deposit made with the clerk within five days after the notice of appeal is filed.

Sec. 382. If the appeal be from a judgment or order directing the payment of money, it shall 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, stating their places of residence and occupation, 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, the appellant shall 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 shall be affirmed, if affirmed only in part; and all damages and costs which shall be awarded against the appellant upon the appeal.

Sec. 383. If the judgment or order appealed from direct the assignment or delivery of documents or personal property, the execution of the judgment or order shall not be stayed by appeal, unless the things required to be assigned or delivered be placed in the custody of such officer or receiver as the court may appoint; or unless an undertaking be entered into on the part of the appellant, with at least two sureties, and in such amount as the court or the judge thereof may direct, to the effect that the appellant will obey the order of the appellate court upon the appeal.

Sec. 384. If the judgment or order appealed from direct the execution of a conveyance or other instrument, the execution of the judgment or order shall not be stayed by the appeal until the instrument is executed and deposited with the clerk, with whom the judgment or order is entered, to abide the judgment of the appel

late court.

Sec. 385. If the judgment or order appealed from direct the sale or delivery of possession of real property, the execution of the same shall not 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 that if the judgment be affirmed 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, pursuant to the judgment or order, not exceeding a sum to be fixed by the judge of the court by which the judgment was rendered or order made, and which shall be specified in the undertaking. When the judgment is for the sale of mortgaged premises, and the payment of a deficiency arising upon the sale, the undertaking shall also provide for the payment of such deficiency.

Sec. 386. Whenever an appeal is perfected as provided in the preceding section of this chapter, it shall stay all further proceedings in the court below upon the judgment or order appealed from, or upon the matters embraced therein; and on appeal and filing an appeal bond on appeal from an order discharging an attachment, said attachment shall not be dissolved and shall remain in full force until the cause be disposed of on appeal; but the court below may proceed upon any other matter embraced in the action and not affected by the order appealed from.

And the court below may, in its discretion, dispense with or limit the security required by said sections when the appellant is an executor, administrator, trustee, or other person acting in another's right: Provided, That an appeal shall not continue in force on an attachment unless an undertaking be executed and filed on the part of the appellant, by at least two sureties, in double the amount of the debt claimed by him, that the appellant will pay all costs and damages which the respondent may sustain by reason of the attachment, in case the order of the court below be sustained; and unless, also, notice of the appeal be given within five days after the entry of the order appealed from, and such appeal be perfected and the undertaking in this section mentioned be filed within five days thereafter.

Sec. 387. The undertaking prescribed by sections three hundred and eighty-one, three hundred and eighty-two, three hundred and eighty-three, three hundred and eighty-five, may be in one instrument or several, at the option of the appellant.

Sec. 388. An undertaking upon appeal shall be of no effect unless it be accompanied by the affidavits of the sureties that they are each worth the amount specified therein over and above all their just debts and liabilities, exclusive of property exempt from execution, except where the judgment exceeds three thousand dollars, and the undertaking is executed by more than two sureties they may state in their affidavits that they are severally worth amounts less than that expressed in the undertaking if the whole amount be equivalent to that of two sufficient sureties.

The adverse party, however, may except to the sufficiency of the sureties to the undertaking or undertakings mentioned in sections three hundred and eighty-one, three hundred and eightytwo, three hundred and eighty-three, and three hundred and eighty-five, at any time within thirty days after the filing of such undertaking; and unless they or other sureties, within twenty days after the appellant or appellants shall have been served with notice of such exception, justify before a judge of the court below, a probate judge or county clerk, upon five days' notice to the appellant, execution of the judgment or decree appealed from shall be no longer stayed; and in all cases where an undertaking is required on appeal by the provisions of this act, a deposit in the court below of the amount of the judgment appealed from and three hundred dollars in addition shall be equivalent to filing the undertaking; and in all cases the undertaking or deposit may be waived by the written consent of the respondent.

Sec. 389. In cases not provided for in sections three hundred and eighty-one, three hundred and eighty-two, three hundred and eighty-three, and three hundred and eighty-five, the perfecting of an appeal by giving the undertaking, and the justification of the sureties therein if required, on making the deposit mentioned in section three hundred and eighty-one, shall stay proceedings in the court below upon the judgment or order appealed from, except where it directs the sale of perishable property, 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.

Sec. 390. 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 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. 391. 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 III.

WRIT OF ERROR.

Sec. 392. Final judgment examined in district court, or supreme court, on writ of error, except in chancery.

Sec. 393. To be prosecuted within six months; but if absent two years, not to exceed five years.

Sec. 394. When deemed to have been issued.

Sec. 395. Clerk to issue notice to defendant.
Sec. 396. How served.

Sec. 397. Transcript, what to contain.

Sec. 398. Court to fix time for assigning errors and filing join

ders.

Sec. 399. Judgment may be modified, affirmed, reversed, or set aside.

Sec. 400. If undertaking for costs contain additional undertakings, damages may be given defendant. Sec. 401. Form of undertaking for writ of error.

Sec. 402. If either party die, or single woman marry, proper parties made.

Sec. 403. Any one party or privy to judgment may prosecute writ of error.

Sec. 404. Reversal of judgment not to affect title, if sold to a stranger.

Sec. 405. When supreme court equally divided, case continued until all present.

Sec. 392. Every final judgment, order, or decision of a district court, except in chancery, may be examined upon a writ of error in the same court for error in fact, in the supreme court for error in law.

Sec. 393. Every such writ shall be prosecuted within six months and not after. But if the party entitled to have such writ shall be absent from the territory, and shall not have been personally served with process, nor appeared to the action, or if such party be an infant, or married woman, or imprisoned, or insane, then such writ may be prosecuted within two years after