Page:United States Statutes at Large Volume 47 Part 1.djvu/1020

 996 72d C ONGRESS. SESS. II. CH. 127. FE BRUAR Y 27, 1933 . of appeal, and the undertaking filed ; and the magistrate may be compelled by the district court, by an order entered upon motion, to transmit such papers and may be fined for neglect or refusal to transmit the same. I certified copy of such order may be served on the magistrate by the party or his attorney. In the district cou rt, eithe r party m ay have t he benefi t of all legal Obj ections m ade in the mag strate s court. Undertaking on ap. SEC. 49 5. UNDERTAKING ON APPEAL :Al appe al from a magis- peal. trate 's court is not ef fectual f or any p urpose, u nless an undertaki ng be filed with two or more sureties in the sum of $25 for the payment of the costs on the appeal, or, if a stay of proceedings be claimed, in the sum of $25 plus a sum equal to the amount of the judgment, including costs, when the judgment is for the payment of mone or plus twice the value of the property including costs, when the judgment is for the recovery of specific personal property ; and must be conditioned, when the action is for the recovery of money that the appellant will pay the amount of the judgment appealed from, and all costs, if the appeal be withdrawn or dismissed, or the amount of any judgment and all costs that may be recovered against him in the action in the district court. When the action is for the recovery of or to enforce or foreclose a lien on specific personal property, the undertaking must be condi- tioned that the appellant will pay the judgment and costs appealed from, and obey the order of the court made therein, if the appeal be withdrawn or dismissed, or any judgment and costs that may be recovered against him in said action in the district court, and will obey any order made by the court therein. When the judgm ent appealed from di rects the delivery o f possession of real property, the execution of the same can not be stayed unless a written undertaking be executed on the part of the appellant, with two or more sureties, to the effect that during the possession of such property by the appellant, he will not commit or suffer to be committed any waste thereon, and that if the appeal be dismissed or withdrawn, or the judgment affirmed, or judgment be recovered against him in the action in the district court he will pay the value of the use and occupation of the property irom the time of the appeal until the delivery of possession thereof ; or that he will pay any judgment and costs that may be recovered against him in said action in the district court, not exceeding a sum to be fixed by the magistrate of the court from which the appeal is taken, an d whic h sum must b e spec ified in the undert aking. A deposit of the sum of $50 plus the amount of the judgment, including all cost appealed from, or plus the value of the property, in cluding a ll costs, in actio ns for th e recove ry of spe cific per sonal pr operty, with the m agistr ate, i s equi valent to the filin g of t he undertaking, and in such cases the magistrate must transmit the money to the clerk of the district court to be by him paid out on the order of the court. Filin g of under tak- SEC. 49 6. FILIN G OF UNDER TAKIN G ; EXCEPTION TO AND JUSTIFICA- 3ng ; eaoeption to and ju -, i _tn tl usureties. T ION OF suRETIES .-The undertaking on appeal must be filed within fi ve days a fter the filing of the noti ce of ap peal, and notice o f the filing of the undertaking must be given to the respondent. The adverse party may except to the sufficiency of the sureties within five days after the filing of the undertaking and unless they or other sureties justify before the magistrate within five days thereafter, upon notice to the adverse party, to the amounts stated in their affidavits, the appeal must be regarded as if no such undertaking had been given.