From Justice's Court to County Court, Right of. SECTION 1. Judgments in all civil cases, rendered by justices', recorders' and mayors' courts, may be reviewed by the county court. When the appeal is taken on questions of law alone, it shall be heard on a statement of the case prepared as prescribed in section twenty of this chapter. When the appeal is taken on questions of fact, or on questions of both law and fact, the action shall be tried anew in the county court, and either party may, on such trial, demand a jury. Upon an appeal heard upon a statement of the case, the county court may review all orders affecting the judgment appealed from, and may set aside or confirm or modify, any or all of the proceedings subsequent to and dependent upon said judgment, and may, if necessary and proper, order a new trial. When the action is tried anew on appeal, the trial shall be conducted in all respects as trials in the district court. The provisions of this act, as to changing the place of trial, and all the provisions as to trials in the district court, shall be applicable to trials on appeal in the county court. For a failure to prosecute an appeal, or unnecessary delay in bringing it to a hearing, the county court, after notice, may order the appeal to be dismissed. Judgments rendered in the county court on appeal shall have the same force and effect, and be enforced in the same manner as judgments in actions commenced in the district court. Gen. Laws, 5305.

SEC. 2. By the provisions of section three hundred and sixty-six, there are two 'distinct classes of appeal from the judgments rendered by justices of the peace, recorders and mayors: 1st. When the appeal is taken on questions of

law alone. 2d. When taken on questions of fact, or on questions of both law and fact. When the appeal is taken on questions of law alone, the justice sends up a statement with a copy of his docket, and all motions filed by the parties during the trial, the notice of appeal and the undertaking on appeal. But when the appeal is on questions of fact, or of both law and fact, he sends up no statement. The statement must contain the grounds upon which the party intends to rely on the appeal, and so much of the evidence as may be necessary to explain the grounds, and no more. The object which was intended to be accomplished by the act in distinguishing between the two classes of appeals, was to save costs in the appellate court, in certain cases. As the same laws governing the general transactions of business life must be applied in justices' courts as well as in others, many cases must arise where the dispute is not about facts, but simply about questions of law alone. If the act required a trial anew in these cases, it would add greatly to the costs in the county court. As the appellant is required in the statement to give the grounds he intends to rely on, both parties come before the court without witnesses, and only prepared to discuss the questions of law. People vs. Freelon, 8 Cal. 518.

SEC. 3. On appeal from a justice's court to the county court, on questions of law alone, if a new trial be ordered, it should take place in the county court. 8 Cal. 518.

SEC. 4. Any party dissatisfied with a judgment rendered in a justice's court, may appeal therefrom to the county court of the county, any time within thirty days after the rendition of the judgment. The appeal shall be taken by filing a notice of appeal with the justice, and serving a copy on the adverse party. The notice shall state whether the appeal is taken from the whole or a part of the judgment, and if from a part, what part, and whether the appeal is taken on questions of law or fact, or both. Gen. Laws, 5555.

SEC. 5. Where the appellant dies on the same day that the judgment is rendered, there is no authority for prosecuting the cause in the name of the deceased; but all proceedings ought to be stayed until, by suggestion, his execu

tor or administrator is made a party. Sanchez vs. Roach, 5 Cal. 248.

SEC. 6. No appeal can be taken to the county court from a justice's judgment rendered by default. People vs. County Court of El Dorado, 10 Cal. 19; Funkenstein vs. Etgutter, 11 Cal. 328.

SEC. 7. In Maine, where an action commenced before a justice has been defaulted, no appeal lies. 28 Maine (15 Shep.) 102. And the plaintiff is entitled to costs of the appeal. 31 Maine (1 Red.) 557.

SEC. 8. In California, a plaintiff cannot appeal from a judgment of nonsuit rendered on his own motion. Sleeper vs. Kelly, 22 Cal. 456.

SEC. 9. In Illinois, one of several defendants may appeal from a judgment of a justice, though the others refuse to join. 2 Scam. 46.

SEC. 10. So in Wisconsin, if a justice renders a judgment against two or more parties, one or either of them may appeal without joining the others. 5 Wis. 156. And an appeal by one or more co-defendants, against whom judgment has been rendered, stops all further proceedings there and transfers the entire case to the appellate court. 2 Wis. 284.

SEC. 11. In Missouri, the absence of the justice from home during the ten days after trial, may be a good excuse for not appealing, but it must appear that he was absent during the whole of the ten days. 5 Mo. 386.

SEC. 12. In Iowa, a written agreement to abide by the decision of a justice as final, is binding and precludes an appeal. 3 Iowa, 332.

Notice of.

SEC. 13. In California, the filing of a notice of appeal must precede the filing of the undertaking on appeal. Until an appeal is taken there is nothing to give effect to the undertaking. Buckholder vs. Byers, 10 Cal. 481.

SEC. 14. Where the object of notice of appeal to the county court is accomplished, it is immaterial whether the notice is given or not. Where both parties appear, no notice whatever is necessary to be shown. McLeran vs. Shartzer, 5 Cal. 70.

SEC. 15. A judgment was rendered for plaintiff in a

justice's court, on July 2d, 1857. Notice of appeal was handed to the justice on the sixth of July, and on the same day notice of appeal was served on the attorney of plaintiff. This notice described the parties to the suit and the justice before whom it was obtained, but stated that the appeal was taken from a judgment rendered on the fourth day of July. The notice given to the justice described the judgment correctly. The justice sent up a copy of his docket and the papers, except the notice. The appeal was taken on questions both of law and fact. When the case was called in the county court, both parties appeared, and each asked liberty to make a motion. The plaintiff's counsel was allowed to make his motion first, and moved to dismiss the appeal and affirm the judgment of the justice, for two reasons: First, there was no notice of appeal on file; second, there was no notice of appeal served on defendant. The mistake in the date of the judgment, as stated in the notice of appeal which was served on respondent, was not material. The notice was sufficient. It was the duty of the justice to send up the notice of appeal received by him. The county court should have given the appellant the opportunity to move for an order compelling the justice to send it up. The order of the county court dismissing the appeal and affirming the judgment of the justice is reversed, and that court will proceed to try the case anew. 9 Cal. 18. SEC. 16. The statute concerning appeals from justices' courts provides that "an appeal may be taken by filing a notice with the justice and serving it upon the adverse party." There is nothing in this statute which forbids service of notice of appeal upon the attorney, if one appeared, for the party appealing on the trial. The general law regulating appeals, which provides that notice may be served on the party or his attorney, must govern cases arising in justices' courts. Welton vs. Garibardi, 6 Cal. 245.

SEC. 17. Where a judgment rendered before a justice is appealed from, and the parties by consent withdraw the appeal, the judgment is restored. 4 Jones' Law (N. C.) 508.

SEC. 18. A party appealed from the judgment of a justice, and afterwards countermanded the appeal: Held, that the judgment was vacated by the appeal, but that being

countermanded it was restored to its former force. Busbee's Law (N. C.) 392.

SEC. 19. After an appeal is taken by the defendant, the justice has no authority, even before he returns the papers, to receive the amount he adjudged to the plaintiff. 11 Ala. 166.

Statement on.

SEC. 20. When a party appeals to the county court on questions of law. alone he shall, within ten days from the rendition of judgment, prepare a statement of the case and file the same with the justice. The statement shall contain the grounds upon which the party intends to rely on the appeal, and so much of the evidence as may be necessary to explain the grounds, and no more. Within ten days after he receives notice that the statement is filed, the adverse party, if dissatisfied with the same, may file amendments. The proposed statement and amendments shall be settled by the justice, and if no amendments be filed, the original statement shall be adopted. The statement thus adopted or as settled by the justice, with a copy of the docket of the justice, and all motions filed with him by the parties during the trial and the notice of appeal, shall be used on the hearing of the appeal before the county court. Pr. Act, Sec. 625.

SEC. 21. When a party appeals to the county court on questions of fact, or on questions of both law and fact, no statement need be made, but the action shall be tried anew in the county court. Pr. Act, Sec. 626.

SEC. 22. In a statement for a new trial the evidence may be simply referred to, and need not be contained in the statement itself. It is not so in a statement on appeal, in which the evidence, if relied upon, must be set out. If the statement on appeal does not contain the evidence, or so much at least as may be necessary, then the appellant cannot rely upon any ground depending upon the testimony. Dickinson vs. Van Horn, 9 Cal. 211.

SEC. 23. Instruments are sometimes admissible for one purpose and inadmissible for another; and, when objected to, the grounds of objection should be stated; and in preparing the record for appeal so much of the evidence should