Page:United States Statutes at Large Volume 76A.djvu/440

–344– -344included in the judgment, and filing an undertaking as required in section 955 of this title, and after settlement or adoption of the statement, if any, the magistrate shall, within five days, transmit to the clerk of the district court: (1) if the appeal is on questions of law alone, a certified copy of his docket, the statement as admitted or as settled, the notice of appeal, and the undertaking filed; or (2) if the appeal is on questions of fact, or both law and fact, a certified copy of his docket, the pleadings, all notices, motions, and all other papers filed in the cause, the notice of appeal, and the undertaking filed. (b) The magistrate may be compelled by the district court, by an order entered upon motion, to transmit the papers, and may be fined for neglect or refusal to transmit them. A certified copy of the order may be served on the magistrate by the party or his attorney. (c) In the district court, either party may have the benefit of all legal objections made in the magistrate's court. § 955. Undertaking on appeal (a) An appeal from a magistrate's court is not eflfectual for any purpose, unless an undertaking is 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 is 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 money; or plus twice the value of the property including costs, when the judgment is foi* the recovery of specific personal property. The undertaking shall 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of money, that the appellant will pay the amount of the judgment appealed from, and all costs, if the appeal is withdrawn or dismissed, or the amount of any judgment and all costs that may be recovered against him in the action in the district court. (b) When the action is for the recovery of or to enforce or foreclose a lien on specific personal property, the undertaking shall be conditioned that the appellant will pay the judgment and costs appealed from, and obey the order of the court made therein, if the appeal is withdrawn or dismissed, or any judgment and costs that may be recovered against him in the action in the district court, and will obey any order made by the court therein. (c) Wlien the judgment appealed from directs the delivery of possession of real property, the execution of the same may not be stayed unless a written undertaking is executed on the part of the appellant, with two or more sureties, to the effect that, during the possession of the property by the appellant, he will not commit, or suffer to be committed any waste thereon, and that if the appeal is dismissed or withdrawn, or the judgment affirmed, or judgment is recovered against him in the action in the district court, he will pay the value of the use and occupation of the property from 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 the action in the district court, not exceeding a sum to be fixed by the magistrate of the court from which the appeal is taken and specified in the undertaking. (d) A deposit with the magistrate of the sum of $50 plus the amount of the judgment, including all costs appealed from, or plus the value of the property, including all costs, in actions for the recovery of specific personal property, is equivalent to the filing of the undertaking, and in such cases the magistrate shall transmit the money to the clerk of the district court to be paid out by him on the order of the court.

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