this code, an order may be made for arrest and bail, or for

an attachment.

of

SEC. 566. In such action, the surety may obtain any the provisional remedies mentioned in title eight, upon the ground and in the manner therein described.

Motions and orders.

SEC. 567. A motion is an application for an order, addressed to the court, or a judge in vacation, by any party to a suit or proceeding, or one interested therein.

SEC. 568. Several objects may be included in the same motion, if they all grow out of, or are connected with the action or proceeding in which it is made.

Provisional remedice.

Definitian of

motion.

What to include.

Notice in wri

SEC. 569. Where notice of a motion is required, it must be in writing, and shall state the names of the parties ting to the action or proceeding in which it is made, the name of the court or judge before whom it is to be made, the place where, and the day on which it will be heard, the nature and terms of the order or orders to be applied for, and if affidavits are to be used on the hearing, the notice shall state that fact, and it shall be served a reasonable time before the hearing.

SEC. 570. Notices of motions, mentioned in this chapter, may by served by a sheriff, coroner or constable, or by any disinterested person, and the return of any such officer, or affidavit of any such person, shall be proof of service; the service shall be on the party, or his attorney of record if the said party or his attorney be resident within the county in which the motion is made, and in case there is more than one party adverse to such motion, service shall be made upon each party or his attorney.

SEC. 571. The service of a notice shall be made as is required by law for the service of a summons, and when served by an officer, he shall be entitled to like fees. The service shall be on the party or his attorney of record, if the said party or his attorney be resident within the county in which the motion is made, and in case there is more than

By whom served.

How served.

tice.

Without

order.

no

one party adverse to such motion, service shall be made upon each party or his attorney.

Sec. 572. Motions to strike pleadings and papers from the files, may be made with or without notice, as the court or judge shall direct.

Definition of SEC. 573. Every direction of a judge or court made, or entered in writing, and not included in a judgment, is an order.

SEC. 574.

Orders made out of court shall be forthwith entered by the clerk in the journal of the court, in the same manner as orders made in term.

TITLE XXIV.

Error in civil cases.

SEC. 575. A judgment rendered, or final order made, by a probate court, justice of the peace, or any other tribunal, board or officer exercising judicial functions, and inferior in jurisdiction to the district court, may be reversed, vacated or modified by the district court.

SEC. 576. An order effe.ting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order effecting a substantial right made in a special proceeding, or upon a summary application or an action after judgment, is a final order which may be vacated, modified or reversed, as provided in this title. A judgment rendered or final order made by the district court or a judge thereof, may be reversed, vacated or modified by the supreme court.

SEC. 577. A judgment rendered or final order made by any court, board or tribunal, mentioned in the preceding sections, may be reversed, vacated or modified by the supreme court, for errors appearing on the record; but the petition in error, in such case, can be filed only by leave of the supreme court, or a judge thereof.

SEC. 578. The proceedings to obtain such reversal, vacation or modification in the supreme court shall be by petition, to be entitled, "Petition in error," filed in the supreme court, setting forth the errors complained of, and

thereupon a summons shall issue and be served, or publication made, as in the commencement of an action. A service on the attorney of record in the original case shall be sufficient. The summons shall notify the adverse party that a petition in error has been filed in a certain case, naming it, and shall be made returnable on or before the first day of the term of the court, if issued in vacation; if issaed in term time, it shall be returnable on a day therein named; if the last publication or service of the summons shall be made ten days before the end of the term, the case shall stand for hearing at the term.

SEC. 579. The summons mentioned in the last section, shall, upon the written precipe, of the plaintiff in error or his attorney, be issued by the clerk of the court in which the petition is filed, to the sheriff of any county in which the defendant in error or his attorney of record may be, and if the writ issue to a foreign county, the sheriff thereof may return the same by mail to the clerk, and shall be entitled to the same fees as if the same had been returnable to the district court of the county in which such officer resides. The defendant in error, or his attorney, may waive in writing the issuing or service of the summons.

SEC. 580. The plaintiff in error shall file with his petition a transcript of the proceedings containing the final judgment or order sought to be reversed, vacated or modified.

Summons

SEC. 581. Judges of probate courts, justices of the peace, and other judicial tribunals having no clerk, and c. clerks of every court of record, shall, upon request and being paid the lawful fees therefor, furnish an authenticated transcript of the proceedings, containing the judgment or final order of said courts, to either of the parties to the same, or to any person interested in procuring such transcript.

How sued.

Transcript.

Authenticated

tion.

SEC. 582. No proceeding to reverse, vacate or modify stay of execu any judgment or final order rendered in the probate court, or district court, except as provided in the next section, and the fourth subdivision of this section, shall operate to stay execution, unless the clerk of the court in which the record

Undertaking.

Double the amount of judg

ment.

Armanca

Costs.

Documents.

Convoyance, &e.

of said judgment or final order shall be, shall take a written undertaking, to be executed on the part of the plaintiff in error to the adverse party, with one or more sufficient sureties, as follows:

First, When the judgment or final order sought to be reversed, directs the payment of money, the written undertaking shall be in double the amount of the judgment or order, to the effect that the plaintiff in error will pay the condemnation money and costs, in case the judgment or final order shall be affirmed in whole or in part.

Second, When it directs the execution of a conveyance or other instrument, the undertaking shall be in such sum as may be prescribed by any court of record in this territory. or any judge thereof, to the effect that the plaintiff in error will abide the judgement, if the same shall be affirmed, and pay the costs.

Third, When it directs the sale or delivery of possession of real property, the undertaking shall be in such sum as may be prescribed by any court of record of this territory, or any judge thereof, to the effect that during the possession. of such property by the plaintiff in error, he will not commit or suffer to be committed any waste thereon, and if the judgment be affirmed he will pay the value of the use and occupation of the property from the date of the undertaking until the delivery of the possession, pursuant to the judgment, and all costs.

Fourth, When it directs the assignment or delivery of documents, they may be placed in the custody of the clerk of the court in which the judgment was rendered, to abide the judgment of the appellate court, or the undertaking shall be in such sum as may be prescribed as aforesaid, to abide the judgment and pay costs, if the same shall be affirmed.

SEC. 583. Instead of the undertaking prescribed in the second subdivision of the last section, the conveyance or other instrument may be executed and deposited with the clerk of the court in which judgment was rendered or order made, to abide the judgment of the appellate court.

SEC. 584. Before the written undertaking herein

mentioned in section five hundred and eighty-two, shall operate to stay execution of the judgment or order, the execution of the undertaking and the sufficiency of the sureties, must be approved by the court in which the judgment was rendered or order made, or by the clerk thereof; and the clerk shall indorse said approval, signed by himself, upon the undertaking, and file the same in his office, for the defendant in error.

SEC. 585. In an action arising on contract, for the payment of money only, notwithstanding the execution of the undertaking in the last section mentioned to stay proceelings, if the defendant in error give adequate security to make restitution in case the judgment is reversed or modified, he may, upon leave obtained from the court below, or a judge thereof in vacation, proceed to enforce the judg ment. Such security must be an undertaking executed to the plaintiff in error by at least two sufficient sureties, to the effect that if the judgment be reversed or modified, he will make full restitution to the plaintiff in error of the money by him received under the judgment.

Approval of sentence.

Enforcement of judgment.

Limitation.

SEC. 586. No proceeding for reversing, vacating or modifying judgments or final orders, shall be commenced unless, within three years after the rendition of the judgment or making the final order complained of; or in case the person entitled to such proceeding be an infant, a married woman, a person of unsound mind, or imprisoned, within three years as aforesaid, exclusive of the time of such disability. Provided, That no proceeding for reversing, Proviso. vacating or modifying judgments or final orders made by justices of the peace shall be commenced unless within three months after the rendition or making of the judgment or final order complained of.

SEC. 587. No proceedings to reverse, vacate or modify Undertaking. any judgment rendered or final order made by a justice of the peace, shall operate as a stay of execution, unless the clerk of the district court shall take a written undertaking to the defendant, executed on the part of the plaintiff in error, by one or more sufficient sureties, to the effect that