term at Council Bluffs. Appeals from all other counties shall be At Council heard at the term at Des Moines, as provided by law. Bluffs. At Des Moines. tinued. When a cause is continued, it shall be heard at the next regular Hearing: term at the city where the order of continuance is made unless when conotherwise ordered. [Code, § 136.] With the consent of the appellee indorsed in writing on the Appeals taken notice of appeal, a cause may be taken from any place where it is provided the court shall be held. county to any IV. OF APPEALS TO THE SUPREME COURT. 1. In Civil Cases. by consent. of time for taking. certificate of script. SEC. 12. No appeal to the Supreme Court shall be taken Limitation except within six months from the rendition of the judgment or order appealed from. Unless the case involves an interest in real estate no appeal where the amount in controversy is shown by the pleadings does not exceed one hundred dollars will be considered, Limitation as except to dismiss the same unless the trial judge certifies the to amount: question of law upon which the decision of this court is desired. judge. And no other question except the one so certified shall be considered. This rule, so far as it is in addition to the statute, shall not take effect until January 1st, 1878. [Code, § 3173.] SEC. 13. An appeal shall not be perfected until the notice Notice of apthereof has been served upon both the party and the clerk, and peal: tranthe clerk paid or secured (unless already secured) his fees for a transcript; whereupon the clerk shall forthwith transmit by mail, express, or a safe and less expensive messenger, not a party, nor the attorney of a party, a transcript of the record in the cause, or of so much thereof as the appellant in writing in the notice has directed, to which shall be appended copies of the notices of appeal, and of the supersedeas bond, if any; but the parties may, either in person or by their attorneys, agree in writing to submit the same to the court upon the printed abstract of the record hereinafter required; and when such agreement in writing is ap- Submission pended to the printed abstract filed, no transcript of the record upon abstract. shall be filed, or costs therefor be taxed in the cause. In all cases in which the appellee intends to demand judgment upon the supersedeas bond in this court, the bond must be certified to this court, and appended to the transcript, or to the agreed abstract. [Code, § 3179, with additional, provisions adopted by the court.] notice. SEC. 14. An appeal is taken by the service of a notice in Service of writing on the adverse party, his agent, or any attorney w.o appeared for him in the case in the court below, and also upon the clerk of the court wherein the proceedings were had, stating the appeal from the same, or from the specific part thereof, defining such part. [Code, § 3178.] SEC. 15. An appeal from part of an order, or from one of the Partial appeal. judgments of a final adjudication, or from part of a judgment, shail not disturb or delay the rights of any party to any judgment or part of a judgment, or order not appealed from, but the same shall proceed as if no such appeal had been taken. [Code, § 3177.] SEC. 16. The notices of appeal must be served thirty days and Time of the cause filed and docketed at least fifteen days before the first service. default not personally served: how served with notice of appeal. day of the next term of the Supreme Court, or the same shall not then be tried, unless by consent of parties. If the appeal is taken less than thirty days before the term, it must be so filed and docketed before the next succeeding term. [Code, § 3180.] SEC. 17. In cases in which there was a default in the court Defendant in below, and no personal service on defendant, and no appearance by him, the plaintiff may appeal, and make service of the notice of appeal in the same manner that service of original notice is made on non-resident defendants. If the appellee is a non-resident, but has an agent residing in the state, the notice may be served upon such agent, and such service shall take the place of publication in a newspaper. The proof of such service shall be made in the manner prescribed for proof of service of original notice on non-resident defendants. [McClellan v. McClellan, 2 Iowa, 312.] Causes: how docketed. Service and filing of appellant's abstract. Same as to abstract of appellee. part of the record. SEC. 18. The cause shall be docketed as it was in the court below, and the party taking the appeal shall be called the appellant, and the other party the appellee. [Code, § 3171.] SEC. 19. At least thirty (30) days before the day assigned for the hearing of a cause, the appellant shall serve upon the attorney for each appellee a printed copy of so much of the abstract of record as may be necessary to a full understanding of the questions presented for decision (said abstract to be prepared as required by sections 97, 98 and 99). He shall also, fifteen (15) days before the first day of the term for which the cause is to be docketed for trial, file with the Clerk ten (10) copies of said abstract, and no cause will be heard until thirty (30) days after such service and fifteen (15) days after such filing with the Clerk; nor shall it be docketed unless this and other rules shall be complied with. In case of cross appeals the party first giving notice of appeal shall, under this rule, be considered the appellant. [As amended by order of court, June 14th, 1879.] SEC. 20. If the appellee's counsel shall deem the appellant's abstract imperfect or unfair he may, within ten days after receiving the same, deliver to the appellant's counsel one printed copy, and to the clerk of the court ten printed copies of such further or additional abstract, as he shall deem necessary to a full understanding of the questions presented to this court for decision. SEC. 21. In an action by ordinary proceedings, and in an acWhat deemed tion by equitable proceedings tried upon oral evidence, all proper entries made by the clerk, and all papers pertaining to the cause and filed therein (except subpoenas, depositions, and other papers which are used as mere evidence), are to be deemed part of the record. But in an action by equitable proceedings tried upon written evidence, the depositions and all papers which were used as evidence are to be certified up to the Supreme Court, and shall be so certified, not by transcript, but in the original form. But a transcript of a motion, affidavit, or other paper, when it relates to a collateral matter, shall not be certified, unless by direction of the appellant. If so certified, when not material to the determination of the appeal, the court may direct the person blameable therefor to pay the costs thereof. But the parties may agree, in writing, to submit the cause upon the printed abstracts, as provided in section twenty hereof. [Code, § 3184, with additional provisions adopted by the court.] affirmance. SEC. 22. If the appellant, having taken an appeal fifteen days Failure to file before the term, fails to file a transcript and abstracts in the Su-transcript and preme Court on the morning of the first day of that part of the dismissal or term devoted to causes from the district whence comes the appeal, or, if not taken as many as fifteen days before the term, he fail to have the cause so filed at the next succeeding term on the morning aforesaid, or has failed to file the printed abstract required, in either event, unless the appellant file at the same time, when such transcript should be filed, the certificate of the clerk stating when he was served with notice, and that he has not had sufficient time to prepare a transcript, or if the abstract has not been filed, his own affidavit showing that he has not had time since the appeal was taken to prepare and furnish such abstract, the appellee may file a transcript of the judgment, and of the notice served on the clerk, and may, on motion, have the appeal dismissed or the judg ment affirmed. [Code, § 3181, with additional provisions adopted! by the Supreme Court.] SEC. 23. If the transcript has not been sent up, or the appel- Same. lant does not file the same, or does not file an abstract when the same should be filed as herein provided, the appellee may file the same, and may, on motion, have the appeal dismissed or the judg ment affirmed, as the court from the circumstances of the case shall determine. [Code, § 3182, with additional provisions adopted by the Supreme Court.] SEC. 24. If, the transcript and abstract being filed, errors are Failure to not assigned by the morning of the first day devoted to causes assign errors, from the district whence comes the appeal, the appellee may, on motion, have the appeal dismissed, or the judgment or order affirmed, unless a good cause for the failure is shown by affidavit. [Code, § 3183, with additional provisions adopted by Supreme Court.] SEC. 25. A part of several co-parties may appeal, but in Appeal b. such case they must serve notice of the appeal upon all the other co-parties co-parties, and file the proof thereof with the clerk of the Supreme Court. [Code, § 3174.] SEC. 26. If the other co-parties refuse to join, they cannot nor Same. can any of them take an appeal afterward; nor shall they derive any benefit from the appeal, unless from the necessity of the case. [Code, § 3175.] sumed. SEC. 27. Unless they appear and decline to join, they shall be Joinder predeemed to have joined, and shall be liable for their due proportion of costs. [Code, § 3176.] not abated by SEC. 28. The death of one or all of the parties shall not cause Proceedings the proceedings to abate, but the names of the proper persons death. shall be substituted, as is providedin such cases in the District Court, and the cause may proceed. The court may also in such case grant a continuance, when such a course will be calculated to promote the ends of justice. [Code, § 3211.] SEC. 29. Where appellant has no right, or no further right to Motion to prosecute the appeal, the appellee may move to dismiss the appeal, and if the grounds of the motion do not appear in the record, or by writing, purporting to have been signed by the dismiss. Issue as to right to take or prosecute appeal. Method of service. Transcript: how perfected. Original papers transmitted. Proceedings: how stayed. Bond. appellant, and filed, they must be verified by affidavit. [Code, § 3212.] SEC. 30. The appellee may, by answer filed and verified by himself, agent or attorney, plead any facts which render the taking of the appeal improper, or destroy the appellant's right of further prosecuting the same, to which answer the appellant may file a reply, likewise verified by himself, his agent or attorney, and the question of law or fact therein shall be determined by the court. [Code, § 3213.] SEC. 31. The service of all notices of appeal, or in any way growing out of such right, or connected therewith, and all notices in the Supreme Court, shall be in the way provided for the service of like notices in the District Court, and they may be served by the same person and returned in the same manner, and the original notice of appeal must be returned, immediately after service, to the office of the clerk of the District Court where the suit is pending. [Code, § 3214.] SEC. 32. It shall be the duty of the appellant to file a perfect transcript, and to that end the clerk of the court below must at any time, on his suggestion of the diminution of the record, and on the payment of fees, certify up any omitted part of the record, according to the truth, as the same appears in his office of record; and such applicant shall not be entitled to any continuance, in order to correct the record, unless it shall clearly appear to the court that he is not in fault, subject to which requirement either party may, on motion before trial day, obtain an order on the clerk of the court below, commanding him to transmit at once to the Supreme Court a true copy of such imperfect or omitted part of the record as shall be in general terms described in the affidavit or order. Such motion must be supported by affidavit, unless the diminution be apparent, or admitted by the adverse party, and must not be granted unless the court be satisfied that it is not made for delay. [Code, § 3185.] SEC. 33. Where a view of an original paper in the action may be important to a correct decision of the appeal, the court may order the clerk of the court below to transmit the same, which he shall do in some safe mode, to the clerk of the Supreme Court, who shall hold the same subject to the control of the court. [Code, $3209.] SEC. 34. An appeal shall not stay proceedings on the judgment or order, or any part thereof, unless a supersedeas is issued, and no appeal or supersedeas shall vacate or affect the lien of the judgment appealed from. [Code, § 3186.] SEC. 35. A supersedeas shall not be issued until the appellant shall cause to be executed before the clerk of the court which rendered the judgment or order, by one or more sufficient sureties, to be approved by such clerk, a bond to the effect that the appellant shall pay to the appellee all costs and damages that shall be adjudged against the appellant on the appeal; also, that he will satisfy and perform the judgment or order appealed from, in case it shall be affirmed, and any judgment or order which the Supreme Court may render, or order to be rendered, by the inferior court, not exceeding in amount or value the original judgment or order, and all rents, or hire, cr damages to property during the pendency of the appeal, out of the possession of which the appellee is kept by reason of the appeal. If the bond is intended to stay proceedings on only a part of the judgment or order, it shall be varied so as to secure the part superseded alone. When such bond has been approved by the clerk and filed, he Supersedeas. shall issue a written order, commanding the appellee and all others to stay proceedings in such judgment or order, or on such part as is superseded, as the case may be. [Code, § 3186.] for defective bond. SEC. 36. If the appellee believe the supersedeas bond defect- Discharge of ive, or the sureties insufficient, he may move the Supreme Court, Supersedes if in session, or in its vacation, on ten days' written notice to the or insufficient appellants, may move any judge of said court, or the judge of the court where the appeal was taken, to discharge the supersedeas; and if the court, or such judge, shall consider the sureties insufficient, or the bond substantially defective in securing the rights. of the appellee, the court or such judge shall issue an order discharging the supersedeas, unless a good bond with sufficient sureties be executed by a day by him fixed. The order, if made by a judge, shall be in writing, and be signed by him, and upon its filing, or the filing of a certified copy of the order when made in court, in the office of the clerk of the court from which the appeal was taken, execution and other proceedings for enforcing the judgment or order may be taken, if a new and good bond is not filed and approved by the day fixed as aforesaid. [Code, § 3188.] SEC. 37. But another supersedeas may be issued by the clerk Another to upon the execution before him, of a new and lawful bond, with issue. sufficient sureties as hereinbefore provided. [Code, § 3189.] bond. SEC. 38. If the judgment or order is for the payment of money, Penalty in the penalty shall be at least twice the amount of the judgment and costs; if not for the payment of money, the penalty shall be sufficient to save the appellee harmless from the consequences of taking the appeal. But it shall in no case be less than one hundred dollars. [Code, § 3190.] effect of SEC. 39. The taking of the appeal from a part of a judgment, Partial appeal: or order, and the filing of a bond as above directed, does not cause a stay of execution as to any part of the judgment or order not appealed from. [Code, $3191.] SEC. 40 If execution has issued prior to the giving of the Execution bond above contemplated, the clerk shall countermand the same. recalled. [Code, § 3192.] SEC. 41. Property levied upon and not sold at the time such Property countermand is received by the sheriff shall forthwith be delivered released. up to the judgment debtor. [Code, § 3193.] 2. In Criminal Actions. SEC. 42. The mode of reveiwing in the Supreme Court any Mode of judgment, action, or decision of the District Court in a criminal review. cause is by appeal. [Code, § 4520.] SEC. 43. Either the defendant or the State may take an appeal. By whom [Code, § 4521.] taken. SEC. 44. No appeal can be taken until after judgment, and then Time for only within one year thereafter. [Code, § 4522.] appeal. SEC. 45. An appeal is taken, by the party taking it, or the Notice of attorney of such party, serving on the adverse party, or on the appeal. |