ཀྱི མས 【་。ས, TITLE VIII. Appeals. Article 1. Appeals generally. 2. Appeal where a new trial is not had in the appellate court. ARTICLE FIRST. Appeals generally. Sec. 3044. Justice's judgment reviewed by appeal, 3045. Who may appeal; to what court appeal to be taken. 3046. Appeal; when and how taken. 3047. Service of notice upon justice; payment of costs and fee. 3049. Amendment; when allowed. 3050. Undertaking to stay execution upon judgment. 3051. Proceedings; how stayed. 3052. Id.; when justice is dead, etc. 3053. Return. 3054. Id.; when justice has gone out of office. 3055. Further return; how compelled. 3056. Id.; when justice is dead, etc. 3057. Proceedings when error in fact is alleged. 3058. Restitution upon reversal. 3059. Setting off costs and recovery. 3060. Certain sums may be included in disbursements. 3061. Judgment-roll. 3044. Justice's judgment reviewed by appeal. The only mode of reviewing a judgment, rendered by a justi of the peace in a civil action, is by an appeal, as prescribed this title. Co. Proc., part of § 351. 3045. [Am'd, 1895.] Who may appeal; to what court appeal to be taken. An appeal may be taken by any party aggrieved by the jude ment. Except where the judgment is rendered by a justice the peace of the city of Buffalo, the appeal must be to the cou court of the county where the judgment was rendered. Id., part of §§ 325 and 352; L. 1895, ch. 946. § 3046. [Am'd, 1882.] Appeal; when and how taken. An appeal must be taken within twenty days after the entr of the judgment in the justice's docket; except that, where defendant appeals from a judgment rendered in an actio wherein he did not appear, and the summons was not persona served upon him, the appeal may be taken within twenty day after personal service upon him, on the part of the plaintiff, written notice of the entry of the judgment; but not after t expiration of five years from the entry of the judgment. A appeal is taken by serving upon the justice by whom the judg ment was rendered, and upon the respondent, a written noti of appeal, subscribed either by the appellant, or by his attor in the appellate court. Id., part of § 353 and 354. Service of notice upon justice; payment of costs of the notice of appeal upon the justice, must be made ing it to him personally, or to his clerk, appointed to law; but if the justice is dead, or if neither he nor can, after reasonable diligence, be found within the ervice of the notice upon the justice may be made by! it to the clerk of the appellate court. Unless the dead, the appellant must, at the time of serving the y to the person to whom it is delivered the costs of included in the judgment, and the sum of two dollars, of the justice for making the return. part of §§ 354 and 359. Service of notice upon respondent. of the notice of appeal upon the respondent may be delivering it, in any part of the State, to the respondent or in one of the following methods: · respondent is a resident of the county, by leaving it dence, with a person of suitable age and discretion. ot a resident of the county, and the person who aphis attorney upon the trial is a resident thereof, it ved upon the attorney, either personally, or by leaving esidence, with a person of suitable age and discretion. vice within the county cannot be made, with due upon the respondent personally, or in the method prethe foregoing subdivision, the notice of appeal may ipon him, by delivering it to the clerk of the appellate § 354. Amendment; when allowed. he appellant; seasonably and in good faith, serves the ppeal, upon either the justice or the respondent, but ugh mistake, inadvertence, or excusable neglect, to on the other, or to do any other act necessary to appeal, the appellate court, upon proof by affidavit s, may, in its discretion, permit the omission to be an amendment to be made, upon such terms as ires. dertaking to stay execution upon judgment. pellant desires a stay of execution, he must give a ertaking, executed by one or more sureties, approved ce who rendered the judgment, or by a judge of the urt, to the effect that, if the appeal is dismissed; or is rendered against the appellant in the appellate an execution issued thereupon is returned wholly or isfied; the sureties will pay the amount of the judgè portion thereof remaining unsatisfied, not exceeding ified in the undertaking, which must be at least one lars, and not less than twice the amount of the r, if the judgment in the justice's court is for the a chattel, that the sureties will pay the sum fixed gment as the value of the chattel, together with the any, awarded for the taking, withholding, or detenA copy of the undertaking, with a notice of the delivery thereof, must be served with the notice of appeal, and Section 1335 of this act applies to such an in like manner. undertaking. Co. Proc., §§ 355 and 356. 3051. Proceedings; how stayed. The delivery of the undertaking to the justice or to his clerk appointed pursuant to law, and service of a copy thereof, and of notice of the delivery thereof, stay the issuing of an execution upon the judgment. If an execution has been issued, the service of a copy of the undertaking, certified by the justice or the clerk or accompanied with an affidavit, showing that it is a copy, and that the original has been duly filed, upon the officer holding the execution, stays further proceedings thereunder. Id., § 357. § 3052. Id.; when justice is dead, etc. Where the justice is dead, or cannot, with due diligence, found within the county, and he has no clerk, appointed pursuant to law, or the clerk cannot, with due diligence, be found with the county, the undertaking may be filed with the clerk of th appellate court. In that case, notice of the filing must be give to the respondent, as prescribed in section 3048 of this act, far service of a notice of appeal upon him. The filing of the unde taking has the same effect, as the delivery thereof to the j tice; and a copy thereof certified by the county clerk, served upon the officer holding an execution, has the same effect, as it was certified, as prescribed in the last section. Id., § 358. § 3053. Return. The justice must, after ten and within thirty days from t service of the notice of appeal, and the payment of the costs and fee, as prescribed in section 3047 of this act, make a return the appellate court, annex thereto the notice of appeal and the undertaking, if any has been delivered to him or to his clerk, a file the same with the clerk of the appellate court. The retu must contain all the proceedings, including the evidence and th judgment; unless the appellant has, in his notice of appea demanded a new trial, in a case where he is entitled there as prescribed in article third of this title. In the latter cas the justice must return the summons, together with each w rant of attachment, order of arrest, or requisition to replevy, execution granted by him in the action, with the proof of t service thereof; the pleadings, or copies thereof; the proceedings upon the trial; and the judgment; with a brief statement of the amount and nature of the claims litigated by the parties. B he need not return the evidence, or any part thereof, unless * is required so to do by the special order of the appellate court. Id., § 360, am'd. § 3054. Id.; when justice has gone out of office. Where the justice has gone out of office, he must, nevertheless make a return in the same manner, and his return has the san* effect, as if he remained in office. Id., § 361. 5. Further return; how compelled. return is defective, the appellate court may direct the to make a further or amended return, as often as is y. The appellate court may compel the justice, by att, to make and file a return, or a further or amended The court is always open for those purposes. Where ice has removed to another county of the State, the e court may compel him to make the return, as if he was hin the county where the judgment was rendered. :., §§ 362 and 363. Id.; when justice is dead, etc. justice dies, becomes a lunatic, absconds, removes from e, or otherwise becomes unable to make the return, the court may receive affidavits, or examine witnesses, as vidence and other proceedings taken, and the judgment before the justice; and may determine the appeal, as irn had been duly made by the justice. 33. Proceedings when error in fact is alleged. an appeal is founded upon an error in fact in the pronot affecting the merits of the action, and not within ledge of the justice, the court may determine the matter davits; or, in its discretion, upon the examination of ; or in both methods. of § 66. Restitution upon reversal. the judgment of the justice is reversed or modified, the court may make or compel restitution of property or t lost by means of the erroneous judgment; but not so ect the title of a purchaser, in good faith and for value, ty sold by virtue of a warrant of attachment in the • an execution issued upon the judgment. In that case, late court may compel the value, or the purchase-price tored, or deposited to abide the event of the action, as quires. Six days' notice of an application for an order ution must be given; and, if the application is granted dgment, the proper direction may be included therein. . Setting off costs and recovery. n the appeal, a sum of money is awarded to one party, are awarded to the adverse party, the appellate court off the one against the other, and render judgment for ce. . Certain sums may be included in disbursements. costs are awarded to the appellant, he may include, in -sements upon the appeal, the costs and fee paid to the on taking the appeal; and, where the judgment rendered stice was against the appellant, he may also include, in ursements, the costs of the action, before the justice, would have been entitled to recover, if the judgment tice had been in his favor. of § 371. § 3061. Judgment-roll., 2.69) The clerk, immediately after entering final judgment upon the determination of an appeal, must attach together and file such of the following papers, as were used upon the appeal; which constitute the judgment-roll: 1. The return of the justice, or a certified copy thereof; the notice of appeal; and the undertaking, if any has been given. 2. The verdict, report, or decision, and each offer, if any, made as prescribed in article third of this title. 3. A certified copy of the judgment, together with each notice of exceptions, or case, which is then on file. 4. Every other paper, then on file, and a certified copy of ever order, which in any way involves the merits, or necessarily af fects the judgment. 876 |