Appellant to

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. 346. On an appeal from a final judgment, the appellant shall furnish the court furnish the court a copy of the notice of appeal, the judgment roll, and the statement annexed, certified by the clerk to be a correct copy.

with papers.

Appeal from district courts and superior court of San Francisco.

Undertaking

on appeal.

Undertaking to stay execution.

On appeal from a judgment rendered on an appeal, or from an order made at a special term, the appellant shall furnish the court with a copy of the notice of appeal, the judgment or order appealed from, and a copy of the papers used on the hearing of the court below; such copies to be certified by the clerk to be correct. If any written opinion be given on 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, AND THE
SUPERIOR COURT OF THE CITY OF SAN FRANCISCO.

SECTION. 347. An appeal may be sent to the supreme court from the district courts, and the superior court of the city of San Francisco, in the following cases:

1st. From the judgment rendered in an action or special proceeding, commenced in those courts, or brought into those courts from another court:

2d. From an order made at a special term granting or refusing a new trial, or which affects a substantial right in an action or special proceeding.

SEC. 348. 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 event 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. 349. 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.

directs delivery

etc.

SEC. 350. If the judgment or order appealed from, direct the as- Where judgment signment or delivery of documents, or personal property, the execu- of documents, tion 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, or county judge, may direct, to the effect that the appellant will obey the order of the appellate court upon the appeal.

of a conveyance

SEC. 351. If the judgment or order appealed from direct the exe- Where execution cution of a conveyance or other instrument, the execution of the is directed. 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 appellate

court.

possession of

is directed.

SEC. 352. If the judgment or order appealed from direct the sale, Where sale or or delivery of possession of real property, the execution of the same real property 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 exceed ing a sum to be fixed by the judge of the court by which the judg ment was rendered or order made, and which shall be specified in the undertaking. When the judgment is for the sale of mortgaged premises, Or sale of mortand the payment of a deficiency arising upon the sale, the undertaking shall also provide for the payment of such deficiency.

gaged premises.

SEC. 353. Whenever an appeal is perfected, as provided by the Effect of appeal. preceding sections in this chapter, it shall stay all further proceedings in the court below, upon the judgment or order appealed from, or upon the matter embraced therein; but the court below may proceed Appellant an upon any other matter included in the action, and not affected by the judgment or order appealed from. And the court below may, in its

executor, etc.

Form of undertaking.

Affidavit of

sureties to

accompany undertaking.

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.

SEC. 354. The undertaking prescribed by sections three hundred and forty-eight, three hundred and forty-nine, three hundred and fifty, and three hundred and fifty-two, may be in one instrument, or several, at the option of the appellant.

SEC. 355. An undertaking upon an appeal shall be of no effect, unless it be accompanied by the affidavit of the sureties, that they are each worth double the amount specified therein, over and above all their just debts and liabilities, exclusive of property exempt from execution. The adverse party may, however, except to the sufficiency of the sureties, within five days after the filing of the undertaking; Excepting to and and unless they or other sureties justify before a judge of the court

justification by sureties.

Effect of appeal, in cases not be

below, or a county judge, or the county clerk, within five days thereafter (upon notice to the adverse party,) the appeal shall be regarded as if no such undertaking had been given.

SEC. 356. In cases not provided for in sections 349, 350, 351, and fore provided for. 352, the perfecting of an appeal, by giving the undertaking, and the justification of the sureties thereon, if required, or making the deposit mentioned in section 348, shall stay proceedings in the court below upon the judgment or order appealed from; except that 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.

Appeals, where to be heard.

Judgment on appeal to be

below.

SEC. 357. Appeals in the supreme court from a final judgment, and from a judgment rendered on an appeal, and from an order granting or refusing a new trial, shall be heard at a general term. Appeals in all other cases shall be heard at a special term.

SEC. 358. When judgment is rendered upon the appeal, it shall be certified to court 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 a 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.

APPEALS TO THE DISTRICT COURTS FROM THE COUNTY COURTS.

Appeals from county to district

SECTION 359. An appeal may be taken to the district courts from the county courts of the county or counties comprising any judicial courts may be district, in the following cases:

1st. From a final judgment rendered in an action, or special proceeding commenced therein:

2d. From a judgment rendered on appeal:

taken in certain cases.

3d. From an order granting or refusing a new trial, or which affects a substantial right in an action or special proceeding. (1) SEC. 360. Security shall be given upon such appeal, in the same Security on manner and to the same extent as upon an appeal to the supreme court, and like justification on the part of the sureties may be required.

appeal.

SEC. 361. Appeals to the district courts, as provided in this chap- Appeal, where ter, shall be heard at the special terms of those courts, and shall be to be heard. brought on to a hearing at the earliest period practicable.

furnish papers.

SEC. 362. The appellant shall furnish the papers to the appellate Appellant to court, in the same manner as upon an appeal to the supreme court. Causes on appeal shall be tried anew in the appellate court. (2)

CHAPTER IV.

APPEALS TO THE DISTRICT COURTS FROM THE PROBATE COURTS.

Appeal from

SECTION 363. 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 probate court, following cases:

1st. From an order or decree admitting a will to probate, or refusing the same:

2d. From an order setting apart property, or making an allowance for the widow or children:

3d. 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 or appointment.

4th. From an order directing the sale or conveyance of real property:

(1) Amendments inserted from Stat. 1853, page 277.

(2) Amendment inserted from stat. 1853, p. 277.

in what cases.

Appeal, how

taken.

Appeal, where to be heard.

5th. 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:

6th. From an order made on the settlement of an executor, administrator, or guardian.

SEC. 364. The appeal shall be taken within thirty days after the order or decree appealed from is entered with the clerk.

SEC. 365. Appeals from the probate courts shall be heard at the special terms of the district courts, and be brought on at the earliest period practicable.

CHAPTER V.

Appeals from

justices,' record

APPEALS TO THE COUNTY COURTS FROM JUSTICES' AND RECORDERS' COURTS.

SECTION. 366. There may be tried anew in the county court, ers', and mayors' judgments in all civil cases rendered by justices', recorders' and mayors' courts. (1)

courts.

Power of court on appeal.

Joint debtor may

be summoned to

he should not be bound by judg

ment.

SEC. 367. Upon an appeal the court may review all orders affecting the judgment, may reverse, affirm, or modify the judgment appealed from; and may set aside, or confirm, or modify any or all of the proceedings subsequent to, and dependent upon, such judgment, and may, if necessary or proper, order a new trial.

TITLE X.

MISCELLANEOUS PROCEEDINGS.

CHAPTER I.

PROCEEDINGS, AGAINST JOINT DEBTORS.

SECTION 368. When a judgment is recovered against one or more of show cause why several persons, jointly indebted upon an obligation, by proceeding, as provided in section 32, those who were not originally served with the summons, and did not appear to the action, may be summoned to show cause why they should not be bound by the judgment, in the same manner as though they had been originally served with the

Summons, what

to state.

Affidavit to accompany Summons.

summons.

SEC. 369. The summons, as provided in the last section, shall describe the judgment, and require the person summoned to show cause why he should not be bound by it, and shall be served in the same manner, and returnable within the same time, as the original summons. It shall not be necessary to file a new complaint.

SEC. 370. The summons should be accompanied by an affidavit of the plaintiff, his agent, representative, or attorney, that the judgment

(1) Amendment inserted from Stat. 1853, p. 277