the removal of such disability and not after: Provided, That absence from the territory shall not entitle the party to a longer time than five years. The time limited shall include the day on which the judgment is rendered, or the order or decision is made, or on which the disability ceases. Sec. 394. A writ of error shall be deemed to have issued on the day on which the plaintiff in error shall file in the office of the clerk of the district court where the record is, a written undertaking, executed by two sureties, to be approved by the clerk, for the payment of all the costs of such proceeding, and it shall not be necessary in any stage of the proceedings actually to sue out the writ of error. Sec. 395. On the filing of such undertaking, the clerk shall issue a notice to the defendant in error, under the seal of the court, specifying the court in which and the time when he is to appear to protect his interests, and if the præcipe direct the writ to be made returnable to the supreme court, he shall send thither a transcript of the record, under the seal of the court. Such notice may be as nearly as applicable in the following form: You are hereby notified that A To C- - D B has sued a writ of error, from the supreme court, to reverse the decision of the district court of said county, given in your favor against the said A B term of 18- and unless you appear in the said supreme court on the at the Monday of 18, the cause will be heard in your absence. Witness the seal of the district court the day of 18. [SEAL.] E F Clerk. Sec. 396. The notice may be served on the defendant in error or his attorney of record, by any sheriff within his county, and shall be by delivering a copy thereof, or it may be served by any other disinterested person, and the return of the sheriff endorsed thereon, or the affidavit of such other disinterested person, shall be evidence thereof, and if served ten days before the return day, the cause may be heard at that term. If returned not found, the court of error may make such order for the publication as shall appear most likely in the particular case to convey knowledge of the proceedings to the defendant in error, and may then proceed as if the notice had been personally served. Sec. 397. The transcript shall contain a copy of the writ and return, the pleadings, the journal entries and the bills of exception, the exception and return, and such other matters as the court or judge shall have ordered to be made a part of the record. Either party may have a certiorari to supply any diminution of the record. Sec. 398. The court of error may fix the time for assigning errors and filing joinders. If errors in law be assigned, no joinders shall be necessary. One or more errors in fact may be assigned, and the defendant may put in the common joinder as a demurrer thereto, or may traverse, or confess and avoid the facts. assigned for error, and a separate issue shall be made in each. Sec. 399. The judgment, or other matter complained of, may be affirmed, or may be reversed, or set aside, in whole or in part, or may be modified, or a different judgment or order may be substituted for that complained of, and the cause may be remitted to the district court for such further proceedings as the supreme court by mandate shall direct. Executions may issue from the supreme court, or its judgments may be executed by the district. court on mandate for that purpose. Sec. 400. If the undertaking for costs contain an additional undertaking to pay the judgment if affirmed, and damages, or any new or modified judgment that may be given against the plaintiff in error, then all further proceedings by way of executing the judgment shall forthwith cease, until further order of the court of error. In such case, if the judgment be affirmed or modified, or any new judgment be given against the plaintiff in error, damages may be awarded to the defendant in error, not exceeding ten per cent. upon the amount of the judgment, exclusive of interest and costs, if it manifestly appear that the proceeding was without probable cause, and merely for delay; and in case where judgment is rendered against the plaintiff in error, judgment shall also be rendered against the sureties in the undertaking to the extent of their liability, and execution shall issue against them accordingly. Sec. 401. The undertaking for a writ of error may be in the following form: We promise to pay all costs awarded against A -term, 18 B—, on his writ of error in this cause,—and also the judgment if affirmed,and the damages, or any new or modified judgment that may be given against him. E F. Sec. 402. If, after the undertaking be filed, either party shall. die, or, being a single woman, shall marry, the proper persons may, on motion, be made parties, and the causes shall proceed tojudgment. Sec. 403. Any person who may be a party or privy in any judgment, order, or decision, may prosecute a writ of error to reverse the same to the benefit of all parties and privies therein, and no other party or privy shall afterwards prosecute a writ of error for the same cause. Sec. 404. The reversal of a judgment, order, or decision shall not affect the title to the property sold upon an execution issued upon such judgment, order, or decision if such property be purchased at the sale by a stranger, but if purchased by the judgment creditor, the plaintiff in error may bring an action for the recovery of the same, and the court may award restitution or render such other judgment as justice shall require. Sec. 405. When the supreme court shall be equally divided in opinion, the cause shall stand continued until all the judges are present. CHAPTER IV. APPEALS FROM PROBATE TO DISTRICT COURTS. Sec. 406. How taken. Sec. 407. To be taken within thirty days after entry of order or decree. Sec. 408. To be brought to a hearing at the earliest practicable period. Sec. 409. Any person may appeal. Party appealing known as appellant, or as respondent. Sec. 410. All appeals taken under last section to be perfected within thirty days. Sec. 411. Copy of notice of appeal to be served on adverse party or his attorney. Sec. 412. Party appealing file undertaking with judge or clerk. Sec. 413. If party in whose favor judgment is rendered appeal, shall file an undertaking for costs. Sec. 414. Undertaking to be accompanied by affidavit of sureties. Sec. 418. Case-how tried, and on what papers, in district court. Sec. 419. Sheriff charged with execution of process. To receive fees provided by law. Section 406. 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 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 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. 407. The appeal shall be taken within thirty days after the order or decree appealed from is entered with the clerk. Sec. 408. 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. 409. In cases other than those provided for in section numbered four hundred and (six), 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 in which said probate court is held, or to which it may be attached for judicial purposes. The party appealing shall be known as the appellant, and the adverse party as the respondent. Sec. 410. All appeals taken by virtue of the provisions of the last section shall be perfected within thirty days from the rendition of the judgment appealed from, and shall be tried de novo, in said district court. Sec. 411. The appeal shall be taken by filing with the clerk of the court in which the judgment appealed from is entered, or with the judge of said court, if there be no clerk, a notice stating the appeal from the same, and serving a copy of such notice upon the adverse party or his attorney. Sec. 412. The party appealing shall file with the judge or clerk of said court, within five days from the filing of the notice of appeal, as provided in the last section, an undertaking in double the amount of the judgment, appealed from, or if the judgment be for the recovery of specific personal property, in double the value of such property, with at least two sufficient sureties, and conditioned that the party appealing will pay any judgment that may be rendered against him in the district court, as well as all costs that may be awarded against him, and for the prosecution of such appeal with effect. Sec. 413. If the party appealing be the party in whose favor judgment was rendered, he shall likewise execute and file an undertaking as aforesaid, in a sum equal to double the amount of the costs in the case, conditioned to pay all costs that may be adjudged against him, and for the prosecution of such appeal with effect. Sec. 414. The undertaking provided for in the two preceding sections, shall be accompanied by the affidavit of the sureties that they are residents of the county, and householders or freeholders thereof, and each worth the amount specified in the undertaking, over and above their debts, liabilities, and property by law exempt from execution, but several sureties may state that they are worth less than the amount mentioned in the undertaking, beside such exemptions, if the whole amount equals the amount of two sufficient sureties. Sec. 415. Within ten days after filing the notice of appeal and undertaking provided for in the preceding sections, and payment of fees therefor, the said judge or clerk of said court shall make a full and complete transcript from the docket of all proceedings had in said action, and transmit the same, together with the complaint, answer, motions, pleadings, and all other papers pertaining to or belonging to said cause, to the clerk of said district court. Sec. 416. If any execution shall have been issued upon a judgment appealed from, the judge or clerk of said court, upon receiving the notice and undertaking as hereinbefore provided, shall issue an order directing the officer having such execution in his possession, or charged with the execution of the same, to stay all proceedings thereunder. Such officer, upon the payment of his fees for services rendered on such execution, shall thereupon relinquish all property levied upon by him, and deliver the same, together with all money collected from sales or otherwise, to the judgment debtor. Sec. 417. If the party appealing to the district court, as provided in this act, shall fail to reduce or enlarge the judgment appealed from, ten dollars or more, or revise the same in said district court, he shall not recover any of the costs of appeal. Sec. 418. That all appeals taken by virtue of this act shall be tried in the district court upon the papers in the cause, as if the same had originally been instituted in said court, unless said court, upon such terms as may be just, allow other papers to be filed therein, and both appellant and respondent shall have the benefit of objection taken in said probate court. Sec. 419. That the sheriffs of the different counties of this territory are charged with the execution of process issued from said probate court, in like manner as provided for in cases in the district court, for which services they shall receive fees as provided by law. |