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.

Sec. 404.

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

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

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

B
— B—

D.

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

at the

A B
you appear in the said supreme court on the

18- the cause will be heard in Witness the seal of the district court the

18.

[SEAL.]

term of 18

and unless Monday of

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 thefollowing form:

A

B 28.

CD

District Court, County of-
Judgment-

We promise to pay all costs

at

-term, 18awarded against A- 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.

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 to judgment.

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.

Sec. 415.

Undertaking to be accompanied by affidavit of sureties. Judge or clerk to make transcript within ten days. If execution has issued proceedings to be stayed. Sec. 417. If judgment not reduced, enlarged, or revised, appel

Sec. 416.

lant not to recover costs.

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 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 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