In equity, appeal places the parties as they were at the beginning of the action.20 The appellate court cannot vacate a statutory supersedeas on the ground that an appeal is frivolous." Supersedeas by special order or allowance.-If a decree be self-executing, a stay cannot be taken.28 A suspensive appeal is not given to one who treated the judgment as binding," or against one who is not party or subject to the control of the court.80 33 As to what matters.-Judgments in extraordinary proceedings," and temporary injunctions, but not mere ex parte restraining orders, are often made supersedable. It will not be done if a vacation of the order is the practical result of a stay. A statute excepting judgments granting, modifying, continuing, or dissolving injunctions from the supersedeas statutes, and committing the superseding of such matters to the discretion of the court, does not authorize the continuation of a temporary restraining order issued by the clerk, when the court dissolves it and an appeal is taken.34 A statute providing that an appeal from contempt shall not stay any other action does not forbid a supersedeas of the contempt order itself. If a will be annulled, and another one admitted to probate with a grant of administration and authority to distribute, notwithstanding an appeal from the annulment, the appellate court, to protect its jurisdiction, will stop distribution.3 No law in Montana authorizes the staying of a perpetual injunction, since the statutes apply only to interlocutory injunctions. In Nebraska, it is discretionary with the district, and, after taking up the cause, with the supreme court, to allow supersedeas in cases not enumerated by statute.38 39 37 Procedure, order, or writ, and its effect.-Under the laws of Kentucky, the trial court cannot continue a temporary restraining order after an appeal is taken. The authority lies in the higher court. In Florida, circuit judges cannot grant supersedeas on appeal from final decree. On a motion for stay, an objection that a perpetual injunction is void will not be heard." A special order to supersede an injunctional order is always necessary in Florida.12 A federal supersedeas claim by county board-Dakota County v. Borowsky (Neb.) 93 N. W. 686. 26. An appeal in equity, with the filing and approving of a supersedeas bond, suspends decree-Riley v. Melia (Neb.) 92 N. W. 913. 27. Johnson v. Turner (Fla.) 33 So. 238. 28. Decree declaring a mulct law proceeding to be insufficient-Whitlock v. Wade (Iowa) 90 N. W. 587. 29. Husband who remarried after decree of divorce-State v. King (La.) 33 So. 121. 30. The railroad company had under its franchise entered on a highway, pending appeal from proceedings to establish the highway-Madera County v. Raymond Granite Co., 138 Cal. 244, 71 Pac. 112. 31. Judgment in quo warranto is supersedable by virtue of Rev. St. § 1272-Simonton v. State (Fla.) 32 So. 809. 32. An order to show cause against a permanent injunction made returnable to another district and directing the issuance of a temporary restraining order was held a mere restraining order, not supersedable after dissolution, the return day not being at the term at which the cause was triableRiggins v. Thompson (Tex.) 71 S. W. 14. order made on hearing that an obstruction temporary injunction, susceptible of continuance by supersedeas-State v. Superior Ct.. 30 Wash. 197, 70 Pac. 233. Temporary mandatory injunction to deliver property is supersedable-State v. Superior Ct., 28 Wash. 403, 68 Pac. 865. 33. Under the laws and constitution of Montana an order of injunction against working a mine of which appellants were in possession is mandatory in effect, hence cannot be stayed by special order, since Code Civ. Proc. § 1733, stays proceedings, and since an order for a stay would operate as a vacation, which the supreme court could not do as incidental to its appellate powers-Maloney v. King, 26 Mont. 487, 68 Pac. 1012. 34. Jones v. Walter, 24 Ky. Law Rep. 878. 35. State v. Superior Ct., 28 Wash. 590, 68 Pac. 1051. 36. State v. Superior Ct., 28 Wash. 677, 69 Pac. 375. 37. 1012. 38. An 39. 40. 41. 1014. 42. Maloney v. King, 26 Mont. 487, 68 Pac. Carson v. Jansen (Neb.) 91 N. W. 398. Under the laws of Florida, whether by an adjoining owner be removed held a the supersedeas be by operation of law or bond ordinarily given does not suspend an injunction granted by the decree appealed from unless the trial judge so specifies. An order for an appeal containing an allowance of a supersedeas granted to an order dissolving an injunction continues it in force on the giving of the proper bond." A supersedeas in quo warranto suspends only further action, leaving the judgment stand. If a stay be allowed from a self-executing decree, it will be a nullity. If the undertaking for supersedeas be regularly filed, and the amount properly fixed, it is immaterial that the record showed no determination on the subject of motion for a stay; but the mere allowance of a suspensive appeal in Louisiana does not alone operate suspensively on the jurisdiction below.48 46 § 8. Appearance, entry, and docketing above.-Appellant should make an appearance above." A special appearance below is not enlarged to a general one by taking an appeal and filing an appeal bond.50 A motion to docket and dismiss for delay may be made at any time while the defect remains unremedied. If a case has not been settled in time to prepare and docket a transcript, so much of one as is available should be made up and docketed, and the remainder then brought up by proper proceedings.52 . A mistaken appeal may, in Colorado, be redocketed as error; e. g., a cause reviewable by error which it is too late to appeal. When a dismissed appeal is redocketed as on error, it should be without prejudice to renewal of motion to dismiss, if there is doubt as to the appropriateness of error.55 § 9. Perpetuation of proceedings and evidence for the reviewing court. A. The record proper and what it must show.-The rule that error must be made to affirmatively appear, and that particular matters must be shown by the record, to authorize a review of particular alleged errors, is elsewhere treated.50 But in addition to this it is usually held that certain matters must be shown in order to sustain the appeal generally. Jurisdiction of the court below is ordinarily presumed, but, where absence of jurisdictional steps appears, the presumption does not obtain;57 and where the existence of a constitutional58 or federal question, or a minimum amount in by order of the supreme judges, if the granting or dissolving of an injunction is provided for among other things, the supersedeas will not be effective as to the injunction unless a special application and order of the supreme court or a judge thereof be had to that end-Johnson v. Turner (Fla.) 33 So. 238. 43. Violation of the injunction should be redressed against not the injunction but Against the supersedeas bond-Green Bay & Canal Co. v. Norrie, 118 Fed. 923. 44. New River Mineral Co. v. Seeley, 117 Fed. 981. 45. Hence contempt cannot be brought against an ousted party who refuses to surrender office-Simonton v. State (Fla.) 32 So. 809. 46. Whitlock v. Wade (Iowa) 90 N. W. 582. 47. Harris v. Snyder, 113 Wis. 451. 48. Upton v. Adeline Sugar Factory Co. (La.) 33 So. 725. 49. Florida practice-Ropes V. Kemps (Fla.) 33 So. 244; see, also, Florida C. & P. R. Co. v. Peacock (Fla.) 33 So. 247. 50. White House Mountain G. M. Co. v. Powell (Colo.) 70 Pac. 679. 51. Worth v. Wilmington, 131 N. C. 532. Worth v. Wilmington, 131 N. C. 532. Appeal from county court; Mills' A. 52. 63. 59 C. § 388a, expressly permits it-Denver & R. Appeal from judgment of county court dis- 54. Mills' Ann. Code, § 338a; Roseberry v. Valley B. & L. Ass'n (Colo. App.) 68 Pac. 1063. Colorado Iron Works, 29 218: 55. Taylor v. of record. 57. Biart v. Myers (Neb.) 91 N. W. 573. 58. Unless it does, the court of appeals cannot transfer the cause to the supreme courtDawson v. Waldheim, 91 Mo. App. 117. 59. Α certificate of the judge will not suffice-Home for Incurables v. New York. 187 U. S. 155. Thus if it be raised by assertion of title under act of congress, the record must show that such claim of title was made in the state courts-Sweringen v. St. Louis, 185 U. S. 38, 46 Law. Ed. 795. It must appear that the constitutional provision offended was in the federal and not in the state constitution-New York C. & H. R. R. Co. v. New York, 186 U. S. 269, 46 Law. Ed. 1158. In order to raise the question, the pleadings should specify what constitutional provision is violated-Ash v. Independence, 169 Mo. 77. controversy," is essential to the jurisdiction of the appellate court, the facts giving jurisdiction must appear by the record, though it is sometimes held that jurisdictional facts may be ascertained from outside the record."1 The ruling complained of," and the judgment or order of the court below must appear, and a record entry thereof is essential. On appeal from an intermediate court, the judgment of the trial court must be in the record, as must that of the intermediate court." 69 67 65 68 The making of objections, filing of instructions objected to,es and the taking of exceptions, and by which party exceptions were taken, must appear.70 Rulings not excepted to cannot be reviewed," and a bill showing no exceptions cannot be considered.72 Proceedings for new trial and to obtain review.-The record must show the timely filing of the motion for new trial," the notice of appeal," the taking of the appeal," and grant thereof," the proper settlement and signing of the bill of to require it-Hinton v. Sun Life Ins. Co (Tenn.) 72 S. W. 118. 65. Saussay v. Lemp Brewing Co. (Neb.) 89 N. W. 1048. 66. Bram v. Miller (Mo. App.) 67 S. W 714. The judgment of an intermediate court where that is complained of must be included-Kummer v. Dubuque Mills Co. (Neb.) 93 N. W. 938. 60. Marx & Haas Co. v. Watson, 168 Mo. 133, 56 L. R. A. 951. Under Gen. St. 1901, § 5019, the record must show that the water right in controversy was worth over $100 or the trial judge must have certified that title to land was involved, in order to give supreme court jurisdiction-Grant v. Robb, 64 Kan. 886, 67 Pac. 852. A vendor suing for his interest, which is limited to unpaid purchase money, does not show jurisdiction by allegations that the property was worth more than the statutory amount-Gottfred v. Woodruff, 193 Ill. 491. A record showing judgment for $2088, and affidavit in garnishment stating that the garnishee was indexed to the debtor, but not stating how 483. mach, does not show that garnishees were It was sought to bring in the instructions indebted in $1000 so as to make dismissal of the process appealable-Pick v. Mutual Life Ins. Co., 192 Ill. 157. 61. Towle v. Weise, 64 Kan. 760, 68 Pac. 637. 62. Stuart v. Mitchum, 135 Ala. 546; Western Union Tel. Co. v. Crocker. 135 Ala. 492. The convening order under which the court sat need not be inserted-Com'rs of Natrona Co. v. Shaffner (Wyo.) 68 Pac. 14. 63. Campbell v. City of Stanberry (Mo. App.) 68 S. W. 587; O'Donnell v. Quinn, 100 Ill. App. 5; In re Pina's Estate, 138 Cal. xix., 71 Pac. 171; Young v. Hatch (Colo.) 70 Pac. 693; Lucas v. Huff, 92 Mo. App. 369. The bill of exceptions must show that a Judgment was entered or the case tried after setting aside a judgment and opening a default-Bell v. Stewart (Ga.) 43 S. E. 70. On appeal from the probate court, the transcript must show a judgment identifiable as that appealed from-Barker v. Thompson's Estate, 98 Ill. App. 78. 67. Corrigan v. Kansas City, 93 Mo. App 173; Cox v. Cohn, 29 Ind. App. 559; Nickerson v. Leader Mercantile Co., 90 Mo. App 336. Ground of objections-Lovejoy Campbell (S. D.) 92 N. W. 24. V 68. Payne v. Moore (Ind. App.) 66 N. E by special exceptions written on the margin of each, under Burns' Rev. St. 1901. § 542 Williams v. Chapman (Ind.) 66 N. E. 460. 69. Gillett v. Burns (Mich.) 92 N. W. 104. Nickerson v. Leader Mercantile Co.. 90 Mo App. 336; Hoffman v. Molloy, 91 Mo. App. 367. 70. City of Greenfield v. Johnson (Ind App.) 65 N. E. 542. 71. See "Saving Questions for Review." 72. Moulton Agency v. W. F. McLaughlin Co., 100 Ill. App. 272; Frederick v. Louisville & N. R. Co., 133 Ala. 486. 73. Recital in bill of exceptions Insufficient Greenwood v. Parlin & Orendorff Co (Mo. App.) 72 S. W. 138; Parry v. Gordon Coffee & Spice Co. (Mo. App.) 72 S. W. 130. Continuance of the motion to the term when it was denied need not be shown-Hugumin v. Hinds (Mo. App.) 71 S. W. 479. A showing that on the day the motion was set for argument sufficiently discloses that it was presented to the court-Chicago, I. & L. R. 64. Mikesell v. South Bend Electric Co., Co. v. Martin, 28 Ind. App. 468. 29 Ind. App. 686. Docket entries in brief form held sufficlent to show that judgment was entered on master's report in divorce-English English, 19 Pa. Super. Ct. 586. a V. A recital in the record (Reese v. Fuller. 132 Ala. 282); or in the bill of exceptions (O'Donnell v. Quinn, 100 Ill. App. 5); or in the abstract is insufficient (Mattair v. Furchgott [Fla.] 32 So. 925). The bill of exceptions may be looked at to see if there was a finding in response to a request therefor, and if there was evidence 74. Browne v. Wallace, 66 Ohio St. 57, a recital thereof in the journal being insufflcient. 75. Greenwood v. Parlin & Orendorff Co. (Mo. App.) 72 S. W. 138. Under Code Civ. Proc. § 953, a clerk's certificate that "good and sufficent undertaking • in due form was given is sufficient-Downing v. Rademacher, 136 Cal. 673, 69 Pac. 415. 76. Welty v. Gibson (Mo. App.) 71 S. W. 704. In Missouri, since county court judgments are appealed like those of a justice. an allowance of the appeal will by analogy exceptions," and these must be shown by the record and not by recitals in the bill." Proceedings after supersedeas resulting from an appeal need not be included in the record." Evidence of facts outside the record is occasionally received." B. What is part of record proper; necessity of bill of exceptions or its equivalent. -The record proper, which the appellate court can consider without its being authenticated by a bill of exceptions, comprehends pleadings and amendments thereto, including demurrers, a stipulation for submission on the pleadings, made part of the judgment entry,83 but not a consent to the entry of judgment, also a bill of exceptions taken on a former trial and read at the second trial, is part of the record.85 Grounds for a ruling are not necessarily recorded.80 Documents will not go up unless they were in court below.87 Proceedings on application for a rehearing are not of the record of the determination concerning which rehearing is sought.88 Bringing matters into the record.-Prevailing plaintiff, as against an appealing defendant, must see that material evidence is in the record. A bill of exceptions is the usual procedure for bringing matters into the record. Where the bill of exceptions is quashed, the court will consider the case as if there had been no bill.90 Where the statute allows proceedings to be made of record by order, its provisions must be strictly complied with; make proceedings of record is ineffectual. apparent of record should be certified." be considered to have been made though not shown by the record-Williams v. Kirby, 169 Mo. 622. 77. Filing of the bill-Jaco v. Southern Missouri & A. R. Co., 94 Mo. App. 567; Edmondson v. South Georgia R. Co., 115 Ga. 790; Biles v. Beadle (Mo. App.) 71 S. W. 465; Upton v. Castleman (Mo. App.) 67 S. W. 707: Lucas v. Huff, 92 Mo. App. 369. Filing of case made-Johnson v. Johnson (Kan.) 71 Pac. 518. Extension of time to file-Knight v. Bergmann (Mo. App.) 68 S. W. 237; Thompking V. Muntzell, Id. 240; Andrews V. Meadow, 133 Ala. 442; Mikesell V. South Bend Elec. Co., 29 Ind. App. 689; Thompson v. Dampskibsaktieselskabet Habil, 135 Ala. 249, Tinsley v. Kemry (Mo.) 70 S. W. 691: Lindsey v. Kenan, 133 Ala. 532; Robertson v. Boyd (Mo. App.) 68 S. W. 976; Samuel v. Nashville, C. & St. L. R. Co., 135 Ala. 501. The order was not dated and the time of making did not appear. Filing within extension granted-Hinton v. Sun Life Ins. Co. (Tenn.) 72 S. W. 118. And leave to file in vacation-Dantzler v. Swift Creek Mill Co.. 128 Ala. 410; Massillon Engine & Thresher Co. v. Arnold, 133 Ala. 368; Zion Fountain Lodge v. Folkes, 132 Ala. 609. A record reciting the filing of a bill of exceptions, such recital being followed by the bill and a certificate to the transcript that it contained "all orders and motions" affecting the judgment and appeal is sufficient to show filing. Welty v. Gibson (Mo. App.) 71 S. W. 704. Recitals in the bill are insufficient to excuse delay-Smith v. Baer, 166 Mo. 392; and see. Haydon v. Alkire Grocery Co.. 88 Mo. App. 241; but service may appear otherwise than by the acknowledgment thereofSouthern R. Co. v. Barfield, 115 Ga. 724. Α record entry of the filing of a bill of exceptions "as follows" followed by a bill to which the judge's signature was affixed shows that the bill was signed before filingState v. Rockwood (Ind.) 64 N. E. 592. 78. Cur. Law-9. and without such a statute an order to Grounds for appellate jurisdiction not The record in another cause between 79. They are a nullity-Story & Clark Piano Co. v. Gibbons (Mo. App.) 70 S. W. 138. 80. Bankruptcy of party-Scruby v. Norman, 91 Mo. App. 517. 81. McCall v. Herring (Ga.) 42 S. E. 468. 82. Mallinckrodt Chemical Works v. Nemnich, 169 Mo. 388. 83. Board of Com'rs v. Shaffner (Wyo.) 68 Pac. 14. 84. Grant v. McArthur, 137 Cal. 270, 70 Pac. 88. 85. Hill v. American Surety Co., 112 Wis. 627. 86. A board of equalization should certify legal grounds for its rulings; and evidence other than the record will be had only when they refuse to do so-Newark v. North Jersey St. R. Co. (N. J. Sup.) 53 Atl. 219. 87. Ballots will not be brought up as part of the record of an election case, unless they were in some manner placed in proof or brought into court-Edwards v. Logan, 24 Ky. Law Rep. 678. 88. Record on granting liquor license does not include affidavits on application for rehearing-In re Chuya's License, 20 Pa. Super. Ct. 410. Thompson-Starrett Co., 89. O'Connall v. 90. Nester's Estate v. Carney, 98 Ill. App. 630; Gonzales Mandlebaum Co. v. Broghamer (Neb.) 89 N. W. 621; Helm v. Byfield (Neb.) 91 N. W. 511; Janoska v. Pickard (Neb.) 91 N. W. 521. 91. Proceedings not set out in orderFredericksburg v. Wilcoxen, 158 Ind. 359. Motion ordered to be included not spread on order book and not showing that order was on motion (Burns' Rev. St. 1901, § 662) —— Board of Com'rs v. Gibson, 158 Ind. 471. 92. Wood v. Tattnall County, 115 Ga. 1000. 93. If record did not show proper jurisdictional amount, other ground of jurisdiction must have been certified-Grant v. Robb, 64 Kan. 886, 67 Pac. 852. the same parties and in the same court, merely certified to the supreme court by the clerk, cannot be considered on appeal, since judicial notice cannot be taken of it below.94 95 The matters which are not part of the record, but must be brought in by a bill of exceptions or its equivalent, include proceedings at a former trial, errors occurring at the trial generally," papers filed in the cause generally," refusal to "sanction" petition for certiorari,s or summons in mandamus as to which there had been an appearance and answer," or petition or motion for change of venue,' or continuance, motions and rulings thereon, bench notes, memoranda, and recitals of rulings, the exceptions taken at the trial, settlement of bill of exceptions, rules of court, the evidence, affidavits, argument of counsel,10 motion for new trial" 8 94. The record must be introduced in evi- | Ryder & Adams Co. v. Closser, 27 Mont. 94, dence and brought up by statement of facts 69 Pac. 560. or bill of exceptions-Plumley v. Simpson (Wash.) 71 Pac. 710. 95. McDonald v. People, 29 Colo. 503, 69 6. Pepperdine v. Hymes, 92 Mo. App. 464. Refusal to settle bill must be shown by a bill of exceptions if such refusal is appealed from-Williamson v. Joyce, 137 Cal. 151, 69 But see Hamilton Brown Shoe Co. Pac. 980. v. Williams, 91 Mo. App. 511, where it is said that a bill of exceptions only becomes of A judgment entry record by record entry. stating that judgment was rendered on an agreed statement of facts makes the statement of record-In re Glenn's Estate, 23 Ohio Cir. Ct. 397. 7. Carnahan v. Connolly (Colo. App.) 68 836; Dyniewicz v. Benziger, 99 Ill. App. Pac. Wood v. Tattnall Co., 115 Ga. 1000. 2. In Texas the rule of court requiring a bill of exceptions to review the overruling of motion for continuance is valid-St. Louis S. W. R. Co. v. Bowles (Tex. Civ. App.) 72 S. W. 451. 8. Garth v. Arnold (C. C. A.) 115 Fed. 468; Tanner v. Mishawaka Woolen Mfg. Co., 28 Ind. App. 536. Acts 1899, p. 384, § 6, relating to transcripts, being invalid-Case v. Bennett (Ind.) 64 N. E. 594. Evidence of want of prosecution-Carnahan v. Connolly (Colo. App.) 68 Pac. 836. Evidence excluded Mo- len v. Hawkins, 27 Tex. Civ. App. 608. 3. Radeke Brewing Co. v. Granger, 101 Ill. App. 599. Order striking out pleas-Lo-Curlee v. Rose, 27 Tex. Civ. App. 259; Capgan v. Adams Mach. Co., 135 Ala. 475. tion to revoke appointment of receiverBank of Dexter v. Stoddard County Bank, 169 Mo. 74. Denial of motion to open default-Hartford L. & A. Ins. Co. v. Rossiter, 98 Ill. App. 11. Motion on trial of remonstrance in highway proceedings to reject viewer's report-Fifer v. Ritter (Ind.) 64 N. E. 463. Tes timony taken by a master commissioner is part of his report, though not filed till after judgment-Midland R. Co. v. Trissal (Ind. App.) 65 N. E. 543. The mere filing of the evidence with a certificate that it is correct is insufficient to make it part of the recordJ. I. Case Threshing Mach. Co. v. Millikan. Motion to make pleading more spe- 28 Ind. App. 686. Certification by the clerk cific-Pittsburgh, C., C. & St. L. R. Co. v. of papers showing rulings will not take the Greb, 29 Ind. App. 704. Rulings and excep- place of a bill-Roach v. Moss Tie Co. (Ky.) Evidence must be preserved by tions-Trigger v. Drainage Dist., 193 Ill. 230. 71 S. W. 2. Motion to strike plea from file and ruling bill of exceptions-Heald v. Wallace (Tenn.) thereon-Cottingham V. Greely-Barnham 71 S. W. 80; Heil v. Martin (Tex. Civ. App.) 70 Grocery Co., 129 Ala. 200; Randall v. Wadsworth, 130 Ala. 633; Deiterman v. Ruppel, 200 III. 199. The recital of motions and orders in the clerk's journal does not make them part of the record-Malott v. Scanlon, 101 Ill. App. 142. 4. Memphis & C. R. Co. v. Martin, 131 Ala. 269. 5. Flowers v. Raupp. 87 Mo. App. 454; Wells v. Fetzer (Neb.) 89 N. W. 596; Scaggs v. Western Home Ins. Co., 94 Mo. App. 88; Henline v. Popejoy, 101 Ill. App. 153. entries Minute insufficient-Evans V. Recital in Southern R. Co., 133 Ala. 482. record insufficient-Aden v. Road Dist., 197 Ill. 220. Exceptions to the JudgmentMathews v. Kimball, 103 Ill. App. 28; Lord v. Guyot (Colo.) 70 Pac. 683; People v. Chicago & N. W. R. Co., 200 Ill. 289. Notwithstanding Code Civ. Proc. providing that a new trial order is deemed excepted to-Carr, S. W. 430. A stipulation of facts will not take 9. Phoenix Life Ins. Co. v. Williams (Neb.) 90 N. W. 756; State v. Wolski (Wis.) 92 N. W. 360. An order reciting that it was made on affidavits does not identify affidavits found in the transcript-F. Chevalier & Co. v. Wilson, 30 Wash. 227, 70 Pac. 487; Fidelity & Casualty Co. v. Brown (Ind. Ter.) 69 S. W. 915; Salomon v. Wincox's Estate, 104 Ill. App. 277; Staunton Coal Co. v. Menk, 99 Ill. App. 254; Sterling v. Self (Tex. Civ. App.) |