which the errors complained of can be reviewed in the district court upon petition in error. Taylor v. Tilden, 3 Neb. 339.

400. (1881.) The provisions of section 311 of the code, relative to bills of exceptions, do not apply to justices of the peace. Leach v. Sutphen, 11 Neb. 527 (10 N. W. 409).

401. (1891.) Section 236e of the code, which authorizes the filing of a petition in error upon an order of a court discharging an attachment, is general in its application and applies to all courts having jurisdiction in civil actions. Therefore a county judge may sign a bill of exceptions in any case where an attachment has been discharged by him. Osborne v. Canfield, 33 Neb. 330 (50 N. W. 167). [Overruled. Moline, Milburn & Stoddard Co. v. Curtis, 38 Neb. 520.]

402. (1891.) Where a defendant files an affidavit for a change of the place of trial, which is refused, all the evidence on that matter before the justice must be preserved in a bill of exceptions, duly signed by him, to predicate error thereon in the district or supreme court. Osborn v. Shotwell, 33 Neb. 348 (50 N. W. 164).

no

no

403. (1893.) A county judge has power or authority to sign a bill of exceptions preserving the evidence used in the hearing of a motion to discharge an attachment. Moline, Milburn & Stoddard Co. v. Curtis, 38 Neb. 520; (1895) Michigan Stove Co. v. Miller, 43 Neb. 332 (61 N. W. 610). confers 404. (1894.) The statute authority upon a justice of the peace to sign a bill of exceptions in an action tried before him without a jury, nor can the evidence adduced in such a case be reviewed in the district court on petition in error, for the purpose of determining whether it is sufficient to sustain the judgment. Real v. Honey, 39 Neb. 516 (58 N. W. 136).

405. (1895.) A justice of the peace in this state has no authority to settle a bill of exceptions by which it is sought to preserve the testimony used in the hearing upon a motion to discharge an attachment. Donaldson v. Fisher, 43 Neb. 260 (61 N. W. 609).

406. (1895.) Error in the judgment of a justice of the peace cannot be shown by a bill of exceptions settled by him. Vlasek v. Wilson, 44 Neb. 10 (62 N. W. 245).

407. (1895.) The procedure in county courts in regard to bills of exceptions is

governed by the law relating to justices of the peace. Sedgwick v. Durham, 45 Neb. 86 (63 N. W. 142).

408. (1895.) The provisions of section 587a of the code of civil procedure authorizing the certification of the original bill of exceptions are confined to proceedings in the supreme court reviewing judgments of district courts. The original bill of exceptions cannot be certified from a county court to the district court. Sedgwick v. Durham, 45 Neb. 86 (63 N. W. 142).

409. (1896.) Prior to the act of 1895 (Session Laws, ch. 72) a county judge had no authority to allow a bill of exceptions embodying the evidence on a motion to discharge an attachment. Altschuler v. Snyder, 49 Neb. 22 (67 N. W. 869; (1896) Weitz v. Wood Reaping & Mowing Machine Co., 49 Neb. 434 (68 N. W. 613).

410. (1896.) The clause of the act of 1895 (Laws 1895, ch. 72), authorizing a county judge to settle a bill of exceptions embodying the evidence on a motion to discharge an attachment, whereby it is made to apply to all cases then pending, cannot be so construed as to cure error in a judgment rendered prior to its passage, such judgment being based on a consideration of a bill of exceptions unauthorized when the judgment was rendered. Altschuler v. Snyder, 49 Neb. 22 (67 N. W. 869); (1896) Weitz v. Wood Reaping & Mowing Machine Co., 49 Neb. 434 (68 N. W. 613).

411. (1897.) In 1894 a county judge had no jurisdiction to settle a bill of exceptions preserving the evidence adduced on the hearing of an objection to the regularity of an appointment of a person to act specially as county judge. Lowe v. Bishop, 52 Neb. 551 (72 N. W. 959).

412. (1897.) Prior to the act of 1895 (Session Laws, ch. 72) a justice of the peace had no authority to allow a bill of exceptions embodying the evidence on a motion objecting to the jurisdiction of the court over the person of defendant. Meyer v. Hibler, 52 Neb. 823 (73 N. W. 289).

Time for taking proceedings.

413. (1876.) An appeal from the judgment of a justice of the peace, rendered February 20, and filed in the district court March 15, the next regular term of which was fixed for the first Monday in April, is within the time fixed by law. Morrow v. Sullender, 4 Neb. 374.

414. (1881.) Court should not dismiss an appeal on motion of appellee because not taken in time where appellee has allowed the appeal to stand for a long time, and entered on the trial of the cause. Goodrich v. City of Omaha, 11 Neb. 204 (7 N. W. 442). 415. (1894.) On appeal from a justice of the peace or county court plaintiff has fifty days from rendition of judgment to file his petition in appellate court. Beard v. Ringer, 41 Neb. 831 (60 N. W. 95).

416. (1898.) The rule whereby the right to appeal from the county court or a justice of the peace is not destroyed by failure to perfect the appeal within the time limited by law, where the delay is caused solely by the default of the officer, relates only to the failure of the officer to perform a duty imposed upon him by law. If the officer undertakes to perform some act not so required

of him, he does so as the agent of the appellant, and his neglect is attributable to the appellant himself. Van Sant v. Francisco, 55 Neb. 650 (75 N. W. 1086).

417. (1902.) Where the docket of a justice of the peace shows that the case was taken under advisement, the parties are bound to know that the decision must be rendered not later than the fourth day after the trial. People's Building & Loan Ass'n v. Cook, 63 Neb. 437 (88 N. W. 763).

Filing bond.

418. (1876.) A party appealing from a judgment of a probate judge has ten days within which to give the undertaking in appeal; and until the second day of the term next thereafter to deliver the transcript to the clerk of the appellate court. Bruner & Neligh v. Folk, 5 Neb. 84.

419. (1879.) By section 1007 of the code of civil procedure, the undertaking required, in case of an appeal from the judgment of a justice of the peace to the district court, must be given. within ten days from the rendition of the judgment, and this time is to be computed according to the rule of section 895 of the same code, which excludes the first day and includes the last; and if the last day falls on Sunday, this is to be excluded also. Monell บ. Terwilliger, 8 Neb. 360.

420. (1884.) Where a bond is filed, and afterward, and before the transcript is filed in the district court, the appellant procures additional and satisfactory sureties, if the transcript is filed in the district court in the

proper time, and both parties appear and by agreement the time for filing the petition by the appellee is extended beyond the time fixed by law for filing the same, the appellee cannot remain silent until he is in default for want of a petition and then dismiss the appeal because the bond was not filed with the county judge within the time required by law. Asch v. Wiley, 16 Neb. 41 (20 N. W. 21).

421. (1884.) In probate matters the appeal bond is to be filed in thirty days from the date of the order or judgment appealed from. Bazzo v. Wallace, 16 Neb. 293 (20 N. W. 314); (1888) Malick v. McDermott's Estate, 25 Neb. 267 (41 N. W. 157).

422. (1887.) Where an undertaking for an appeal is filed with the justice more than ten days after the rendition of the judg ment, it is not error for him to refuse to approve the same. Bell Bros. v. White Lake Lumber Co., 21 Neb. 525 (32 N. W. 561).

423. (1888.) In an action before a jus tice of the peace, judgment was in favor of plaintiff and defendant appealed to district court. At a succeeding term of the district court plaintiff moved for an order requir ing a further undertaking on appeal. The motion was sustained and defendant ordered to give a further undertaking within twenty-five days, and that if not filed in said time the appeal to be dismissed. The undertaking was not filed within the time but at the succeeding term of court defendant appeared and filed a showing in effect that the security upon the undertaking for appeal was sufficient, and asked further time in which to file additional undertaking, if one were required. Time was granted by the district court. Held, No error, the first order requiring the additional security not being complied with and the court not hav ing lost its jurisdiction of the case. Robare v. Kendall, 22 Neb. 677 (35 N. W. 940).

424. (1889.) Under the act of February 28, 1881, an appeal is taken in time if appeal bond is filed, without further notice, within thirty days from the date of the order or judgment appealed from, and transcript of the proceedings of the county court transmitted to the clerk of the district court within ten days after filing the bond and perfecting the appeal. Davis v. Davis, 27 Neb. 859 (44 N. W. 40).

425. (1893.) The law governing appeals from judgments before justices of the peace applies to appeals from the county

court to the district court. The party desiring to appeal must file an appeal bond within ten days from the rendition of the judgment, and within thirty days from the date of the judgment he must procure and file in the district court a certified transcript of the proceedings. Sullivan v. Benedict, 36 Neb. 409 (54 N. W. 667).

426. (1893.) An undertaking for an appeal delivered to the county judge at 9:30 P. M. of the tenth day after the judgment is rendered is within ten days, and the appeal is taken within the time fixed by the statute. McKinley & Lanning v. Chapman, 37 Neb. 378 (55 N. W. 882).

427. (1897.) The requirements that a bond on appeal from a county court shall be filed within ten days from the rendition of judgment and shall be approved by the county judge are mandatory, and the statutes are not satisfied by the tender of a bond in the district court at a later time. Hier v. Anheuser-Busch Brewing Ass'n, 52 Neb. 144 (71 N. W. 1005).

428. (1899.) Where the time for furnishing an appeal bond on the tenth day from the date of the judgment expires on a Sunday, ordinarily the approval may be of the following day, or Monday. Deere, Wells & Co. v. Hodges, 59 Neb. 288 (80 N. W. 897).

429. (1901.) An appeal from a judgment of a justice of the peace cannot be prosecuted unless the undertaking therefor, provided by statute, is filed with the justice within ten days after the rendition of the judgment. It is immaterial that the party desiring to appeal was ignorant of the date of the rendition of the judgment because of being mistaken as to the length of time the justice intended to or did defer his decision after the close of the trial. Johnston v. Payton, 1 Unof. 598 (95 N. W. 777).

430. (1902.) An appeal undertaking filed with a justice of the peace on the eleventh day after the rendition of a judgment, is not an effective proceeding. People's Building & Loan Ass'n v. Cook, 63 Neb. 437 (88 N. W. 763).

431. (1902.) The bare fact that a justice of the peace was not at his office after 5 o'clock P. M. on the last day for filing an appeal bond will not justify the district court in refusing to dismiss an appeal on the ground that the undertaking was filed out of time. People's Building & Loan Ass'n v. Cook, 63 Neb. 437 (88 N. W. 763).

432. (1902.) One learned in the law is

not justified in relying absolutely on the legal conclusion of a justice of the peace touching the time when an appeal bond should be filed, and this rule holds even though the justice consults an almanac before stating his conclusion. People's Building & Loan Ass'n v. Cook, 63 Neb. 437 (88 N. W. 763).

433. (1902.) A case removed to the district court from a judgment of a justice of the peace, is rightly dismissed if the appellant, by reason of his own laches, failed to file an appeal bond within the time limited by statute for that purpose. People's Building & Loan Ass'n v. Cook, 63 Neb. 437 (88 N. W. 763).

Filing transcript.

434. (1879.) Failure to file the transcript from a justice of the peace, unless continued beyond the second day of the next succeeding term, could not prejudice an appeal otherwise regularly taken, even if the act of February 19, 1877, requiring such transcript within thirty days after judgment was effective thereto. Roesink v. Barnett, 8 Neb. 146.

435. (1879.) The act of February 19, 1877, requiring the transcript from the justice of the peace to be filed within thirty days after the rendition of the judgment appealed from, is inapplicable where the judgment was rendered before said act took effect. Roesink v. Barnett, 8 Neb. 146.

436. (1879.) The neglect to file a transcript in the district court, in case of an appeal from the judgment of a justice of the peace, within the thirty days given by section 1008, as amended February 19, 1877, is no ground for a dismissal of the appeal, unless continued beyond the second day of the next succeeding term. Monell v. Terwilliger, 8 Neb. 360.

437. (1884.) The transcript is to be filed in the district court within ten days after the expiration of the thirty days within which the appeal bond is to be filed. Bazzo v. Wallace, 16 Neb. 293 (20 N. W. 314).

438. (1887.) Sections 1008 and 1011 of the code of civil procedure, as the same stood prior to the amendment of the latter section by the act of 1887, being in pari materia, must be construed together, and being so construed together, held that the transcript of the proceedings before the justice of the peace not having been presented to the clerk of the district court until after the second day of the term of the district

court next after such appeal, and more than thirty days having elapsed since the rendition of the judgment appealed from before the filing of such transcript, the dismissal of such appeal by the district court was right, and must be affirmed. Clapp v. Bowman & Ware, 22 Neb. 198 (34 N. W. 362).

439. (1887.) Under section 1008 of the code as it existed in 1885, a party appealing from the judgment of a justice of the peace had until the second day of the succeeding term of the district court in which to file the transcript, and the plaintiff had twenty days thereafter in which to file his petition. Therefore, where an appeal had been properly taken by a defendant, a motion made by him on the first day of such term to dismiss the cause for want of prosecution was premature, and should have been overruled. Smith v. Borden, 22 Neb. 487 (35 N. W. 218). 440. (1887.) Where on September 14, the first day of the regular term of the district court, the court met and on petition of the members of the bar the term was adjourned to September 21, the second day of the term on which transcripts from a justice court must be filed, is September 15. Clapp v. Bowman & Ware, 22 Neb. 198 (34 N. W. 362).

441. (1888.) Where a transcript is filed by either of the parties on or before the thirtieth day after the rendition of the judgment, the court will thereby acquire jurisdiction of the case. Union P. R. Co. v. Marston, 22 Neb. 721 (36 N. W. 153).

442. (1888.) Under sections 1008 and 1011 of the code, as it existed in 1886, an appellant had thirty days from the rendition of the judgment before the justice in which to file his transcript in the district court, and until the second day of the next term of the district court after the expiration of the thirty days. Union P. R. Co. v. Marston, 22 Neb. 721 (36 N. W. 153); (1888) Johnson v. Van Cleve, 23 Neb. 559 (37 N. W. 320).

443. (1888.) An agreement entered into by an attorney with a justice of the peace, that such justice shall file a transcript of the proceedings of a case tried before him, in the district court, will not, upon the failure of the justice to file the transcript, relieve the appellant from the consequence of such neglect. In such case, the duties not being official, the justice acts as the mere agent of the appellant. Union P. R. Co. v. Marston, 22 Neb. 721 (36 N. W. 153).

444. (1888.) Where a transcript is filed by either party on or before the thirtieth day from the rendition of the judgment, or on or before the second day of the first term of the district court occurring after such thirtieth day after the rendition of the judgment, the court will thereby acquire jurisdiction of the case. Johnson v. Van Cleve, 23 Neb. 559 (37 N. W. 320).

445. (1888.) Where an appeal is taken from the judgment of a justice of the peace to the district court, the appellant or his agent must deliver a transcript of the proceedings to the clerk of the court to which the appeal may be taken within thirty days next following the rendition of the judg ment. Slaven v. Hellman, 24 Neb. 646 (39 N. W. 843); (1888) Converse Cattle Co. v. Campbell & Valentine, 25 Neb. 37 (40 N. W. 594).

446. (1889.) Section 1011 of the code requires the filing of a transcript from the judgment of a justice of the peace "within thirty days next following the rendition of said judgment." The fact that the transcript, after being received at the office of the attorney for the appellant, is laid aside by the person in charge of the office who did not know its character, and that it was not discovered till too late to file within the time limited, is unavailing to effect an appeal. The appellant, unless unable to procure a transcript from the justice, must see that it is filed as required by statute. Lincoln Brick & Tile Works v. Hall, 27 Neb. 874 (44 N. W. 45).

447. (1890.) An appeal was taken from the judgment of a justice of the peace to the district court, but the transcript of the proceedings was filed with the clerk of that court thirty-one days after the rendition of the judgment. The appellee made a general appearance in the district court, when the cause was continued by the agreement of the parties. Held, That the general appearance of the appellee conferred upon the district court jurisdiction. Stevens v. Ins. Co., 29 Neb. 187 (45 N. W. 284).

448. (1890.) The fact that fees for making transcript were not tendered will not deprive appellant of the right to file after the statutory time, a transcript not prepared within that time, they not having been demanded. Cheney v. Buckmaster, 29 Neb. 420 (45 N. W. 640).

449. (1890.) On September 4, 1888, judgment was rendered against the plaintiffs in