Page:Revised Codes of the State of North Dakota 1895.pdf/1486

§§ 8339_8313 returned by the committing magistrate on the preliminary examination when there has been one, and of all the entries made in his minutes, and certify the same under his hand and the seal of the court, and transmit the same to the clerk of the supreme court, and upon receipt thereof, the clerk of the supreme court must file the same and perform the same services as in civil cases without charge.

§ 8339. Appeal by less than all defendants. When several defendants are prosecuted and tried jointly, any one or more of them may join in taking an appeal, but those who do not join shall take no benefit therefrom, yet they may appeal afterwards.

§ 8340. Appeal. Stay. Custody of defendant. An appeal taken by the defendant does not stay the execution of the judgment in any case not capital, unless bail is put in, except when the judgment is imprisonment in the penitentiary, and an appeal is taken during the term at which the judgment is rendered, and the defendant is unable to give bail, and that fact is satisfactorily shown to the court, it may, in its discretion, order the sheriff or other officer having the defendant in custody, to detain him in custody without taking him to the penitentiary, to abide the judgment on appeal, if the defendant desires it.

§ 8341. Appeal taken. Bail put in. Clerk. Sheriff. When an appeal is taken by the defendant, and bail is put in, it is the duty of the clerk to give forth with to the defendant, his agent or attorney, a certificate under his hand and the seal of the court, stating that an appeal has been taken and bail put in, and the sheriff or other officer having the defendant in custody, must. upon the delivering of such certificate to him, discharge the defendant from custody when imprisonment forms a part of the judgment and cease all further proceedings in execution of the judgment, and return forth with to the clerk of the court who issued it, the execution or certified copy of the entry of judgment under which he acted, with his return thereon, if such execution or certified copy has been issued; and if such execution or certified copy has not been issued, it shall not be issued, but shall abide the judgment on the appeal.

ARTICLE 2. – DISMISSING APPEAL FOR IRREGULARITY.

§ 8942. In substantial particulars. Notice. If the appeal is irregular in any substantial particular, but not otherwise, the supreme court may on any day, on motion of the respondent, upon five days' notice accompanied with the copies of the papers upon which the motion is founded, order it to be dismissed. The dismissal of an appeal affirms the judgment. But if the irregularities complained of are corrected in a reasonable time, the appeal shall not be dismissed and the supreme court must fix the time and direct the manner of correcting the irregularity.

§ 8343. When appeal must not be dismissed. An appeal must not be dismissed for any informality or defect in the taking thereof. If the same is corrected within a reasonable time after an appeal has been dismissed, another appeal may be taken. If an undertaking has been given which is defective in any respect, a new one may be filed on appeal in the supreme court.

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