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NEBRASKA-Supreme Court. ANDREW M, MORRISSEY, CHIEF JUSTICE.
NORTH DAKOTA-Supreme Court..
SOUTH DAKOTA-Supremo Court. SAMUEL C. POLLEY, PRESIDING JUDGES JOHN HOWARD GATES, PRESIDING JUDGE.
WISCONSIN-Supreme Court. ROBERT G. SIEBECKER, CHIEF JUSTICE. AAD JOHN VINJE, CHIEF JUSTICE. 10
NORTHWESTERN REPORTER, VOLUME 186
OF THE COURTS REPORTED DURING THE PERIOD COVERED
BY THIS VOLUME
WILLIAM D. EVANS, CHIEF JUSTICE.1
JOSEPH H. STEERE, CHIEF JUSTICE.S
CALVIN L. BROWN, CHIEF JUSTICE.
BUPREME COURT COMMISSIONERS.
MYRON D. TAYLOR.
1 Ceased to be Chief Justice January 1, 1922.
? Resigned December 1, 1921. & Appointed December 1, 1921, to succeed James
H. McCoy. Died February 11, 1922. 10 Became Chief Justice February 11, 1922.
STATUTES AND RULES REGULATING PRACTICE IN THE SU
PREME COURT OF IOWA
Revised and Adopted at the September Term, 1910, to Take Effect
September 1, 1913
4. An intermediate order involving the Section 1. The Supreme Court shall con- merits or materially affecting the final decisist of seven judges, four of whom constitute sion; à quorum for the transaction of business,
5. An order or judgment on habeas corpus. but one alone may adjourn from day to day, (Code, $ 4101.) or to a particular day, or until the next
Sec. 6. If any of the above orders or judg. term. (Code, $ 193.)
ments are made or rendered by a judge, the Sec. 2. The judge whose term of office will same are reviewable, the same as if made by soonest expire shall be Chief Justice and a court. [Code, $ 4102.) when it occurs that two judges shall be
Sec. 7. The Supreme Court has power to equally entitled, they shall each hold the issue all writs and processes necessary to seplace of Chief Justice for one year, and the cure justice to parties, and to enforce its one who is senior in age shall hold for the appellate jurisdiction; and it may exercise first of the two years to which they are each supervisory control over all inferior judicial equally entitled; and at the session of the tribunals. [Const. art. 5, § 4; Code, $ 4109.) Supreme Court next preceding the commence
Sec. 8. It may enforce its mandates upon ment of the first of the said two years, the inferior courts and officers by fine and imSupreme Court shall cause a record to be prisonment, which imprisonment may conmade as to who shall be Chief Justice for the tinue until its mandates are obeyed. (Code, year next ensuing. [Code Supp. § 1066.]
Sec. 9. There shall be three regular terms Sec. 3. The Supreme Court shall have ap- in each year, to be held as follows, to-wit: pellate jurisdiction only in cases of chancery The first term beginning with the second and shall constitute a court for the correc- Tuesday in January and ending with the tion of errors at law. [Const. art. 5, § 4.] first Monday of May; the second begiilning
Sec. 4. It has appellate jurisdiction over / with the first Tuesday after the first Monday all judgments and decisions of all courts of of May and ending with the third Monday record, except as otherwise provided by law. of September; and the third beginning with (Code, $ 4100.]
the first Tuesday after the third Monday of Sec. 5. An appeal may also be taken to the September and ending with the third SaturSupreme Court from:
day of December. (Code Supp. § 192a.] 1. An order made affecting a substantial Sec. 10. The time allotted to each term right in an action, when such order, in ef- shall be divided as nearly as practicable into fect, determines the action and prevents a periods of four weeks each, the first part of Judgment from which an appeal might be each period to be devoted to the argument taken ;
and submission of cases, and the second to 2. A final order made in special actions af- consultation and the preparation of opinions. fecting a substantial right therein, or made Cases assigned for each period shall be callon a summary application in an action aftered in their order as shown on the term dockjudgment;
et, but no more submissions shall be taken 3. An order which grants or refuses, con- for any one period than in the judgment of tinues or modifies a provisional remedy; the court can be properly considered and grants or refuses, dissolves, or refuses to determined before the next succeeding ses. dissolve an injunction or attachment; or sion. All causes on the docket shall be grants or refuses a new trial; or sustains or heard at each term unless continued or othoverrules a demurrer;
erwise disposed of by order of court. (Acts 186 N.W.
29th Gen. Assem. c. 12, 88 2, 3, and 4, and from the same, or from some specific part Code, $ 192.]
thereof, defining such part. When such serv. Sec. 11. The regular public sessions of the ice cannot be made the trial court or judge court will be held in the Supreme Court room on application, shall direct what notice shall at the Capitol, commencing at 9 o'clock, a. be sufficient. (Code Supp. § 4114.] m., standard time. On Tuesday and Friday Sec. 18. A notice of appeal shall be served of the first and second week of each four and return made thereon in the same manweeks' period submission of motions will be ner as an original notice in a civil action, taken before calling the calendar. Motions and filed in the office of the clerk of the noticed for a day when the court is not sitting court in which the judgment or order apwill be taken on the next motion day on pealed from was rendered or made. All othwhich the court sits. [Old Rules $ 11; Acts er notices connected with or growing out of 29th Gen, Assem. C. 12, 88 2, 3, 4, and 5.) the appeal shall be served and the return
Sec. 12. Judgments of affirmance, rulings made in like manner, and filed in the office and orders, in causes submitted and orders of the clerk of the Supreme Court, and all authorized by law, may be made and entered notices provided for in this section become a by the court at any time regardless of the part of the record in the case on being filed. terms of court. (Code, $ 192.]
[Code, $ 4115.)
Sec. 19. Notice of appeal shall not be held
insufficient because served before the clerk Sec. 13. Appeals from municipal, superior of the trial court has spread the judgment and district courts may be taken to the Su- entry upon the court record if it shall appreme Court at any time within six months pear that such entry has been made in prop from the rendition of the judgment or order er form before appellant's abstract was filed appealed from, and not afterwards. No ap- in the office of the clerk of the Supreme peal shall be taken in any cause in which the Court. (Acts 33rd Gen. Assem. c. 205.) amount in controversy between the parties, as
Sec. 20. The attorneys and guardians ad shown by the pleadings, does not exceed one litem of the respective parties in the court hundred dollars, unless the trial judge shall, below, shall be deemed the attorneys and during the term in which judgment is enter- guardians of the same parties respectively in ed, certify that the cause is one in which the this court until others are retained or apappeal should be allowed, and, upon such pointed, and notice thereof served on the ad. certificate being Aled, the same shall be ap- verse party. [Old Rules, $ 19.] pealable regardless of the amount in controversy; but this limitation shall not affect
V. SUPERSEDEAS BONDS. the right of appeal in any action in which Sec. 21. No proceedings under a judgment an interest in real estate is involved, nor or order, nor any part thereof, shall be stayshall the right of appeal be affected by the ed by an appeal, unless the appellant execute remission of any part of the verdict or judg- a bond with one or more sureties to be filed ment returned or rendered. [Code, $ 4110.) with and approved by the clerk of the court
Sec. 14. A part of several co-parties may in which the judgment or order was renderappeal; but in such case they must serve no ed or made, to the effect that he will pay tice of appeal upon those not joining there to the appellee all costs and damages that in, and file proof thereof with the clerk of shall be adjudged against him on the appeal ; the Supreme Court. (Code, § 4111.)
and will satisfy and perform the judgment Sec. 15. Co-parties refusing to join in an or order appealed from, in case it shall be appeal, cannot afterwards appeal, or derive affirmed, and any judgment or order which any benefit therefrom, unless from the neces- the Supreme Court may render or order to sity of the case, but they shall be held to be rendered by the inferior court, not exhave joined, and be liable for their propor-ceeding in amount or value the original judgtion of the costs, unless they appear and ment or order, and all rents of or damages object thereto. (Code, 8 4112.]
to property during the pendency of the apSec. 16. The death of one or all of the par- peal out of the possession of which the apties shall not cause the proceedings to abate, pellee is kept by reason of the appeal. If but the names of the proper persons shall be the bond is intended to stay proceedings on substituted, as is provided in such cases in only a part of the judgment or order, it shall the district court. The court may also, in be varied so as to secure the part stayed such case, grant a continuance when such a alone. When thus filed and approved, the course will be calculated to promote the ends clerk shall issue a written order requiring of justice. [Code, $ 4150.)
the appellee and all others to stay all proSec. 17. An appeal is taken and perfected ceedings under such judgment or order, or by the service of a notice in writing on the so much thereof as is superseded thereby, adverse party, his agent, or any attorney but no appeal or stay shall vacate or affect who appeared for him in the court below, such judgment or order. (Code, $ 4128.] and also upon the clerk of the court wherein Sec. 22. If a party has perfected his apthe proceedings were had, stating the appeal peal, and the clerk of the lower court refus
(186 N.W.) es for any reason to approve the bond or re- If the abstract is not so fled the case shall quires an excessive penalty or unjust or im- be docketed for the next succeeding term. proper conditions, he may apply to the dis- (Code, $$ 4117, 4119; Old Rules, § 26.] trict court, or judge thereof, who shall fix Sec. 28. Immediately after the time expires the amount and conditions of the bond and during which causes may be docketed for approve the same. Pending the application, trial at a term of court, the clerk shall make the judge may, by a written order, recall and and cause to be printed, without delay, the stay all proceedings under the order or judg. docket for the term, which shall give all ment appealed from, until the decision of the causes, whether continuances or appearances, application. The bond thus approved shall for trial at such term, which shall designate be filed with the clerk, who shall issue a the number, the party appealing, the court written order to stay proceedings. [Code, s and county from which the appeal is brought, 4132.]
the counsel of the parties, the period for Sec. 23. The appellee may move the court which each cause is assigned for trial, rendering the judgment or making the order whether noticed for oral argument and such appealed from, or the Supreme Court or a other matter for the information of the judge of either court, if in vacation, upon court and attorneys as may be conveniently ten days' notice in writing to appellant, to given. He shall forward to each judge of discharge the bond on account of defect in the court, to each attorney having causes at substance or insufficiency in security, which the term, and to the clerk of the district and motion, if well taken, shall be sustained, un- superior courts of each county, a copy of less appellant shall, within a day to be fixed said docket (Old Rules, 27.] in the order made and filed therein, give a new and sufficient bond as required by said
VII. ADVANCING CAUSES. order. If the new bond is not given, pro
Sec. 29. If a cause involves the decision of ceedings shall be had in the lower courts as though no bond had been given, but a new which are likely to be lost or greatly impair
a question of public importance, or rights and sufficient bond may be given at any time with like effect and results as though given ed by delay, the court will
, in its discretion, in the first instance. [Code, $ 4133.]
upon motion supported by affidavit, order the Sec. 24. If the judgment or order is for submission of the cause at a term in advance the payment of money, the penalty shall be of that at which it would otherwise be sub- . in at least twice the amount of the judgment
mitted. (old Rules, $ 28.] and costs. If not for the payment of money, the penalty shall be sufficient to save the ap- ' VIII. ABSTRACTS, TRANSCRIPTS AND pellee harmless from the consequences of
RECORDS. taking the appeal, but in no case sball the penalty be less than one hundred dollars. Sec. 30. At least forty days before the (Code Supp. $ 4134.)
first day of the term, appellant shall serve
upon each appellee, or his attorney, a printVI. DOCKETING OF CAUSES.
ed abstract of so much of the record as Sec. 25. A notice of appeal must be served may be necessary to a full understanding thirty, and the cause filed and docketed fif- of the questions presented for decision, which teen days before the first day of the next abstract shall be prepared as required by term of the Supreme Court, or the same | $8 50, 51 and 52 of these rules. Appellant shall not be submitted at that term, unless shall also, thirty days before the first day the parties consent thereto. If the appeal is the term for which the cause is to be dockettaken less than thirty days before the term, ed for trial, file with the clerk twelve copies it must be so filed and docketed for the next of said abstract. No cause shall be heard succeeding term. (Code, $ 4116.)
until forty days after such service and thirty Sec. 26. The cause on appeal shall be dock- days after such filing with the clerk, uneted as it was in the court below, and the less advanced by order of the court. In case party taking the appeal shall be called ap- of cross-appeals the party first giving notice pellant, and the other party appellee. No of appeal shall, under this rule, be considered case shall be docketed until the fees provid- the appellant. [Old Rules, & 29.] ed by law therefor have been paid. (Code, Sec. 31. If it appear from an inspection of 88 4108, 4121.]
the abstract that the appellant has negligentSec. 27. The clerk shall docket the causes ly or intentionally failed to comply with the as they are filed in his office, and shall ar- rule requiring only so much of the record as range and set a proper number for trial for may be necessary to a full understanding of each period of the term, placing together the question presented for decision to be those from the same judicial district. No included therein, the court may, in its discause shall be docketed unless the abstract cretion, order a new abstract prepared in is filed fifteen days before the first day of conformity with such rule or aflirm the judg. the term at which the cause is set down for ment of the lower court without considering trial unless otherwise ordered by the court. the appeal. [Old Rules, 8 30.]