shall be duly served, as the statute directs. Bemis v. Rogers, 8 Neb. 149.

683. (1880.) Where a party files a petition in error in the supreme court, he must request the clerk either orally or in writing to issue summons in error thereon. Rogers v. Redick, 10 Neb. 332 (6 N. W. 413).

684. (1888.) Jurisdiction is acquired only by the issuance and service of summons in error or general appearance of defendant in error. Wiley v. Neal, 24 Neb. 141 (37 N. W. 926).

Time for issuance of summons.

685. (1880.) A summons in error must be issued within one year from the date of the judgment or final order sought to be reviewed, although it may be served afterwards. Rogers v. Redick, 10 Neb. 332 (6 N. W. 413).

Authority to serve.

686. (1882.) Where a summons in error is directed to the sheriff of a particular county, it cannot be served by a private person unless appointed for that purpose by such sheriff. Republican V. R. Co. v. Sayer, 13 Neb. 280 (13 N. W. 404).

687. (1882.) A court or judge may, for cause shown, appoint a person to serve a particular process, but a justice of the peace has no authority to appoint a person to serve a summons issued out of the supreme court. Republican V. R. Co. v. Sayre, 13 Neb. 280 (13 N. W. 404).

Sufficiency of service.

688. (1888). Service of summons in error upon attorney of record in court below sufficient to give court jurisdiction, although attorney may not appear in the supreme court. Kinney v. Hickox, 24 Neb. 167 (38 N. W. 816).

689. (1889.) Where there are two attorneys of record who appear for one of the parties on the trial of a cause, the service of a summons in error on one of such attorneys will be sufficient. Comstock v. Cole, 28 Neb. 470 (44 N. W. 487).

690. (1890.) It is not necessary that a summons in error should be served within one year from the date of the rendition of the judgment sought to be reversed. If the summons that is served is issued within the year it is sufficient. Hendrickson v. Sullivan, 28 Neb. 790 (44 N. W. 1135).

691. (1902.) A summons in error may properly be served upon the attorney of rec

ord in the trial court in the original case, though at the time of such service the defendant in error should be dead. Link v. Reeves, 63 Neb. 424 (88 N. W. 670).

Publication.

692. (1882.) When a petition in error is filed in the supreme court, and it is necessary to obtain service upon the defendant in error by publication, such publication must be made four successive weeks in a newspaper published in the county, in which the petition is filed. Flint v. Gurrell, 12 Neb. 341 (11 N. W. 431).

Effect of failure to serve.

693. (1905.)

An attorney for a plaintiff in error proceedings may presume that an officer has properly served summons placed in his hands for that purpose, and he is not guilty of negligence in failing to further investigate the manner of service in the absence of circumstances suggesting a doubt as to its validity. Parker v. Parker, 73 Neb. 4 (102 N. W. 85).

694. (1905.) When summons in error from the supreme court is duly issued and placed in the hands of the proper officer for service, who informs the plaintiff's attorney upon inquiry that he has served the same, and the clerk of the supreme court also informs plaintiff's attorney that the summons has been served and returned, the plaintiff's attorney may rely upon the presumption that the officer has done his duty. He is not guilty of negligence in failing to further investigate the manner of the service, there being no circumstances tending to suggest a doubt as to its validity. Parker v. Parker, 73 Neb. 4 (102 N. W. 85).

Waiver of summons or defects therein.

695. (1890.) Oral agreements of attorneys in regard to a case-as that the attorney for the defendant will waive the issuing and service of a summons in error-if made out of court will not be enforced, as they lack the certainty necessary to justify action thereon by the court, while agreements, if made publicly in open court, or in writing duly signed, will be sustained. Haylen v. Missouri P. R. Co., 28 Neb. 660 (44 N. W. 873).

696. (1905.) A motion to dismiss a petition in error because of failure to file a motion for a new trial in the lower court is a waiver of objections to the sufficiency of the summons in error. State, ex rel. Gardner, v. Shrader, 73 Neb. 618 (103 N. W. 276).

Authority of attorney.

697. (1871.) An attorney of record in a cause in the district court, may, when the cause is removed into the supreme court, enter therein the voluntary appearance of his clients, without the issue or service of summons in error. McDonald v. Penniston, 1 Neb. 324.

698. (1889.) Waiver of service, by one of the two attorneys or record for the party, will be sufficient. Comstock v. Cole, 28 Neb. 470 (44 N. W. 487).

699. (1903.) A county attorney has authority to waive issuance and service of summons in error in a case against a county in which he has appeared for it at the trial. Dakota County v. Bartlett, 67 Neb. 62 (93 N. W. 192).

700. (1903.) Seeley obtained a judgment in the district court, and after his death a petition in error making Seeley the sole party defendant was filed and attorneys who were attorneys of record for Seeley in the district court, filed with said petition in error a written statement, signed by them, as attorneys for Seeley, purporting to waive the issuing of summons in error and to enter the voluntary appearance of Seeley in the supreme court. Held, That the supreme court acquired no jurisdiction. Ritchey v. Seeley, 68 Neb. 127 (97 N. W. 818). 701. (1905.) Where a person obtains a judgment in the district court, and after his death error proceedings are begun seeking to reverse the same, an acceptance of service of summons in error by his attorneys of record in the district court is not sufficient to give the supreme court jurisdiction of the error proceedings. Omaha Nat. Bank V. Robinson, 73 Neb. 351 (102 N. W. 613; 104 N. W. 1070).

E. Appearance.

As waiver of summons in error, see ante, §§ 695, 696.

Effect of appearance.

702. (1889.) Where a transcript and petition in error are filed in the supreme court within a year from the date of the rendition of the judgment, and the adverse party voluntarily enters an appearance therein, after the expiration of the year, the case will not be dismissed for want of jurisdiction. Lloyd v. Reynolds, 26 Neb. 63 (41 N. W. 1072).

VII. EFFECT OF TRANSFER OF CAUSE, OR PROCEEDINGS THEREFOR. Appeal as waiver of new trial, see New Trial, § 14.

Jurisdiction acquired by appellate court. Over person of appellant or plaintiff

in error.

703. An appeal from a judgment of the county court in a personal action, gives the appellate court jurisdiction of appellant regardless of whether the lower court had acquired jurisdiction over him or not. (1883) Pearson v. Kansas Mfg. Co., 14 Neb. 211 (14 N. W. 346); (1883) Brondberg v. Babbott, 14 Neb. 517 (16 N. W. 845). [Overruled. 39 Neb. 158; 54 Neb. 437; 5 Unof. 36.]

704. (1883.) A party taking an appeal from, or filing a petition in error to, the district court thereby submits himself to the jurisdiction of said court, and waives any errors which have intervened in the service or return of process necessary to bring him within such jurisdiction. Shawang v. Love, 15 Neb. 142 (17 N. W. 264). [Overruled. 39 Neb. 158; 54 Neb. 437; and in part, 17 Neb. 560; 5 Unof. 36.]

705. (1885.) By bringing a cause to the supreme court on error, a defendant in the court below waives all questions of the jurisdiction of such court over his person. Hurford v. Baker, 17 Neb. 443 (23 N. W. 339). [Overruled. 17 Neb. 560; 39 Neb. 158; 54 Neb. 434.]

706. (1885.) A defendant who resides in a different county from that in which the action is brought, and denies the jurisdiction of the court over his person, should have the ruling of the court on his objection thereto reviewed on error and not by appeal. By appealing he enters a general appear ance. Dunn v. Haines, 17 Neb. 560 (23 N. W. 501).

707. (1888.) Where a decree entered by agreement, in a foreclosure proceeding, finding a portion of the land covered by the mortgage, owned by one of the defendants, was not subject to the mortgage, was, more than a year after its entry, set aside by agreement of all parties except said defendant, and a new decree entered which was void as to such defendant for want of notice, and another party appealed from the second decree but no notice thereof was given to said defendant, and she made no appearance in the supreme court, having no knowledge of the last decree by the district court, nor of the appeal therefrom to the supreme court, the supreme court acquired no jurisdiction over her, and could make no decree prejudicially affecting her rights. Blake v. McMurtry, 25 Neb. 290 (41 N. W. 172).

708. (1894.) When the district court has not otherwise obtained jurisdiction of the person of a defendant, he does not submit himself to its jurisdiction by appealing or prosecuting error to this court; and the case of Shawang v. Love, 15 Neb. 142, holding the contrary doctrine, is overruled, as in contravention of the provisions of section 24, article 1, of the constitution of this state. Hurlburt v. Palmer, 39 Neb. 158 (57 N. W. 1019).

709. (1898.) Objections to jurisdiction of the person, not appearing on the face of the record, may be raised by answer, and the prosecution of appeal or error is not a waiver of such jurisdictional defense. Mayer v. Nelson, 54 Neb. 434 (74 N. W. 841).

Over subject-matter.

710. (1883.) Want of jurisdiction of the subject-matter cannot be waived by consent of the parties, and an appeal from the judgment in such a case confers no jurisdiction on the appellate court. Brondberg v. Babbott, 14 Neb. 517 (16 N. W. 845); (1895) Keeshan v. State, 46 Neb. 155 (64 N. W. 695); (1896) Sternberg v. State, ex rel. Keller, 48 Neb. 299 (48 N. W. 299); (1897) Anderson v. Story, 53 Neb. 259 (73 N. W. 735).

711. (1900.) The supreme court has jurisdiction to review by proceeding in error a judgment rendered by the district court without jurisdiction of the subject-matter. Armstrong v. Mayer, 60 Neb. 423 (83 N. W. 401).

712. (1905.) During the pendency of an appeal from a judgment of the district court confirming a judicial sale, the supreme court is vested with jurisdiction to entertain an application to redeem and to determine the amount of redemption money required for that purpose, and where such jurisdiction is exercised the adjudication of the appellate court incident thereto becomes res judicata. Thesing v. Westergren, 75 Neb. 387 (106 N. W. 438).

VIII. SUPERSEDEAS OR STAY OF PROCEEDINGS.

Allowance of supersedeas bond in mandamus, see Mandamus, s§ 313-315. Judgments which may be superseded.

713. (1896.) An order appointing a receiver pendente lite cannot be superseded as a matter of right during the pendency of an appeal therefrom to the supreme court. State, ex rel. Heinzelman, v. Stull, 49 Neb. 739 (69 N. W. 101).

714. (1905.) An order granting a writ of assistance in a foreclosure suit, after decree, sale, confirmation thereof and the execution of a sheriff's deed, directing the sheriff to put the purchaser in possession of the premises, is a final order and is appealable; but is not such an order, within the meaning of the third subdivision of section 677 of the code, as may be superseded by giving the waste bond therein provided for. Escritt v. Michaelson, 73 Neb. 640 (106 N. W. 1016).

Operation of appeal or writ of error in general.

715. (1896.) An appeal does not operate as a supersedeas except as provided by statute. Home Fire Ins. Co. v. Dutcher, 48 Neb. 755 (67 N. W. 766).

as

716. (1900.) An appeal does not operate a stay proceeding unless the appellant should execute a supersedeas bond within twenty days from the entry of such decree, conditioned as required by section 677 of the code. Dovey v. McCullough, 60 Neb. 376 (83 N. W. 171).

717. (1897.) A supersedeas bond is not essential to a review of a final order, but is indispensable to a stay of proceedings pending review. State, ex rel. Morrissey, v. Ramsey, 50 Neb. 166 (69 N. W. 758).

718. (1897.) While a supersedeas bond is not essential to obtain a review of a decree in an equity cause, such bond is indispensable to a stay of the enforcement of such decree pending the review. Creighton v. Keith, 50 Neb. 810 (70 N. W. 406).

719. (1902.) By the perfecting an appeal in a suit in equity the parties are placed in the same situation, and their rights are the same, as they were at the time of the commencement of the action. Riley Bros. Co. v. Melia, 3 Unof. 666 (92 N. W. 913).

720. (1904.) When a decree in equity requires the plaintiff to deposit money or securities in court as conditions precedent to enforcing the decree against the defendant, and defendant, within the time limited for making such deposit, appeals from said decree and supersedes the same, the time allowed for making the deposit is thereby, extended until a like time after the decree becomes again enforceable. Ruzicka v. Hotovy, 72 Neb. 589 (101 N. W. 328). Fixing conditions of bond.

720a. (1902.) In cases not within the purview of section 677 of the code of civil

procedure, but in which the court has allowed a supersedeas, the district court should fix not only the amount of the supersedeas bond but the conditions thereof; and if it does not, the party seeking a supersedeas should proceed in the appropriate manner to obtain an order fixing such conditions. Carson v. Jansen, 65 Neb. 423 (91 N. W. 398).

720b. (1903.) If the district court fails to fix the conditions of the supersedeas bond, application should be made for a further order, and there is no supersedeas until the terms of the bond are determined by the court and the required bond is given. State, ex rel. Baker, v. Baxter, 4 Unof. 869 (96 N. W. 647).

Operation of supersedeas bond.

721. (1879.) Where a proper supersedeas bond is filed and approved, no execution can issue on the judgment until the bond is set aside, modified, or the appellant fails to perfect his appeal. State Bank v. Green, 8 Neb. 297.

722. (1894.) Where an order is made discharging an attachment, the filing of a petition in error and the filing and approval of a supersedeas bond within the time fixed by the court, not to exceed twenty days, operate to continue the lien of the attachment in force pending error proceedings. The issuance of a summons in error within that time is not necessary for that purpose. McDonald v. Bowman, 40 Neb. 269 (58 N. W. 704).

723. (1894.) Filing approved supersedeas bond below and petition in error in supreme court does not suspend an order of the district court recalling an order of sale and permitting defendant to file stay after twenty days from rendition of decree of foreclosure. State, ex rel. Harris, v. Laflin, 40 Neb. 441 (58 N. W. 936).

723a. (1897.) A proper supersedeas bond executed, filed, and approved in one cause will not act as a supersedeas of a decree subsequently rendered in another action between the same parties. State, ex rel. Morrissey, v. Ramsey, 50 Neb. 166 (69 N. W. 758).

724. (1898.) A bond executed in accordance with the third clause of section 677 of the code of civil procedure, conditioned that the appellants will prosecute an appeal without delay and during its pendency not commit, or suffer to be committed, any waste

upon the premises involved in the action, will not supersede an order appointing a receiver for said premises. Lowe v. Riley, 57 Neb. 252 (77 N. W. 758).

725. (1902.) The perfecting of an appeal to the supreme court from a decree of the district court in a suit in equity, together with the filing and approval of a supersedeas bond, operates to suspend such decree, and the case is thereupon pending here for trial de novo. Riley Bros. Co. v. Melia, 3 Unof. 666 (92 N. W. 913).

725a. (1903.) The filing and approval of a supersedeas bond in an error proceeding from a judgment of the district court suspends the lien of the judgment, which is a mere incident thereto; and the running of the statute of limitations against the lien of such judgment is suspended during the pendency of such error proceedings in the supreme court. Ebel v. Stringer, 4 Unof. 43 (93 N. W. 142).

726. (1905.) An appeal and supersedeas operates to deprive the purchasers of property at execution sale of the use of the premises after the interest on his claim ceased. Westerfield v. South Omaha Loan & Bldg. Ass'n, 75 Neb. 58 (107 N. W. 1010).

726a. (1904.) A supersedeas is a statutory remedy, and if not given within the time limited by statute, the right to such remedy is lost, and if given thereafter, is ineffective. Whitaker v. McBride, 5 Unoi. 411 (98 N. W. 877).

Sufficiency of bond. 726b. (1895.)

A supersedeas undertaking executed by several sureties, but one of whom resides in the county in which such undertaking is required, the others being residents of a different county in this state, should not be rejected on the ground that the resident surety lacks the necessary property qualifications, provided his co-sureties possess all of the qualifications prescribed by law, and the undertaking in other respects satisfies the requirements of the statute. State, ex rel. Lion Ins. Co., v. Baker, 45 Neb. 39 (63 N. W. 139).

727. (1895.) An appeal bond in an action for injunction which omits a material condition prescribed by law is insufficient and will not operate to supersede a decree of the district court dissolving an order of injunction and continue the order in force during the pendency of the appeal to the supreme court. O'Chandler v. State, 46 Neb. 10 (64 N. W. 373).

727a. (1897.) A bond, though filed and approved, will not operate as a supersedeas unless it contains the conditions prescribed by law. State, ex rel. Morrissey, v. Ramsey, 50 Neb. 166 (69 N. W. 758).

727b. (1901.) A supersedeas bond not conditioned as required by statute is insufficient to prevent the enforcement of the judgment or decree it was given to supersede. Gillespie v. Morsman, 2 Unof. 162 (95 N. W. 1127).

728. (1902.) In an error proceeding from a decree of the district court foreclosing a real estate mortgage, an undertaking which does not provide for the payment of "the value of the use and occupation of the property" is not effective as a supersedeas. Collins v. Brown, 64 Neb. 173 (89 N. W. 754).

729. (1905.) The statute, prior to the recent amendment, allowed the supersedeas of a decree confirming a sale upon the foreclosure of mortgage by giving a waste and cost bond only, and the purchaser at such sale could not recover for the use of the premises while the order of confirmation was so superseded, pending an appeal, even though the appeal was voluntarily dismissed by the appellant. Westerfield v. South Omaha Loan & Bldg. Ass'n, 75 Neb. 58 (107 N. W. 1010).

Qualifications of sureties.

729a. (1895.) The only qualifications prescribed by the civil code for sureties on undertakings therein authorized are those mentioned in section 898, viz., that such sureties must be residents of this state, worth double the sum to be secured beyond the amount of their debts, and have property liable to execution in this state equal to the sum to be secured. State, ex rel. Lion Ins. Co., v. Baker, 45 Neb. 39 (63 N. W. 139). Additional or new security.

730. (1894.) Where it is shown that a supersedeas bond is entirely inadequate in amount, a sufficient bond may be required of the appellant as a condition necessary to the continuance of a stay of proceedings. Tulleys v. Keller, 42 Neb. 788 (60 N. W. 1015).

Approval of bond.

730a. (1897.) It is the duty of the clerk of the district court to determine whether the sureties on a supersedeas bond, when the same is duly tendered, are financially responsible for the amount of the penalty of

such bond; and, if the clerk so finds, it is his duty to approve and file the bond. State, ex rel. Beard, v. Cook, 51 Neb. 822 (71 N. W. 733).

Allowance by court.

730b. (1896.) It is within the power of the supreme court in its discretion, after ootaining jurisdiction of a case by appeal, to allow a supersedeas in cases not provided for by statute, and upon terms which the court may prescribe. Home Fire Ins. Co. v. Dutcher, 48 Neb. 755 67 N. W. 766).

730c. (1896.) In cases where the statute makes no provision for a supersedeas as a matter of right, the court may in its discretion allow a supersedeas upon conditions which it may affix for the protection of the parties. Home Fire Ins. Co. v. Dutcner, 48 Neb. 755 (67 N. W. 766).

731. (1897.) In such cases not within the statute the district court may, in its discretion, allow a supersedeas on proper terms, and should do so where the appellant's rights will be jeopardized if the order is not superseded, and no party will be injured beyond the protection of a bond by superseding the order. Penn Mutual Life Ins. Co. v. Creighton Theatre Building Co., 51 Neb. 659 (71 N. W. 197).

732. (1902.) After obtaining jurisdiction of a cause by appeal, the supreme court may, in its discretion, allow a supersedeas in cases not provided for by statute, upon such terms as it may prescribe. Carson v. Jansen, 65 Neb. 423 (91 N. W. 398).

732a. (1902.) In cases not within the purview of section 677 of the code of civil procedure, the district court may, in its discretion, allow a supersedeas upon conditions which it determines to be proper or necessary for the protection of the parties. Carson v. Jansen, 65 Neb. 423 (91 N. W. 398).

733. (1905.) It is within the discretion of the district court to determine whether But this a supersedeas should be allowed. is a legal discretion, and where such supersedeas is refused, the supreme court will, in a proper case, supersede the judgment of the district court upon proper terms. Prante v. Lompe 74 Neb. 210 (104 N. W. 1150). Proceeding in cause upon giving security for restitution.

734. (1898.) A plaintiff may proceed to enforce his judgment obtained on a contract for the payment of money only, notwithstanding the execution by the defendant of