Writs of scire facias and quo abolished. CHAPTER V.-Actions for the Usurpation of an Office or Franchise. SEC. 397. The writ of scire facias, the writ of quo warranto warranto, and proceedings by information in the nature of quo warranto, are abolished. The remedies obtainable in these forms may hereafter be obtained by civil actions under the provisions of this chapter. Same reme dies by civil this chapter. action under SEC. 398. An action may be brought by the district attorney, in the name of the people of this territory, upon his own information, or upon the complaint of a private party, against any person who usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise within his district, in the territory; and it shall be the duty of the district attorney to bring the action whenever he has reason to believe that any such office or franchise has been usurped, intruded into, or unlawfully held or exercised by any person, or when he is directed to do so by the governor ; and in case such district attorney shall neglect or refuse to bring such action, upon the complaint of a private party, such action may be brought by such private party upon his own relation, in the name of the people of the territory. SEC. 399. Whenever such action is brought, the district attorney or relator, in addition to the statement of the cause of action, may also set forth in the complaint the name of the person rightly entitled to the office, with a statement of his rights thereto; and in such case, upon proof by affidavit that the defendant has received fees or emoluments belonging to the office, and by means of his usurpation thereof, an order may be granted by a judge of the supreme court, or a district judge, for the arrest of such defendant and holding him to bail; and thereupon he may be arrested and held to bail, in the same manner, and with the same effect, and subject to the same rights and liabilities, as in other civil actions where the defendant is subject to arrest. SEC. 400. In every such case judgment may be ren Judgment deter claimant and defendant. dered upon the right of the defendant, and also upon mine rights of the right of the party so alleged to be entitled, or only upon the right of the defendant, as justice shall require. SEC. 401. If the judgment be rendered upon the right of the person so alleged to be entitled, and the same be in favor of such person, he shall be entitled, after taking the oath of office, and executing such official bond as may be required by law, to take upon himself the execution of the office. SEC. 402. If judgment be rendered upon the right of the person so alleged to be entitled, and the same be in favor of such person, he may recover, by action, the damages which he shall have sustained by reason of the usurpation of the office by the defendant. SEC. 403. When several persons claim to be entitled to the same office or franchise, one action may be brought against all such persons in order to try their respective rights to such office or franchise. SEC. 404. When a defendant, against whom such action has been brought, is adjudged guilty of usurping, or intruding into, or unlawfully holding any office, franchise, or privilege, judgment shall be rendered that such defendant be excluded from the office, franchise, or privilege, and that he pay the costs of the action. The court may also, in its discretion, impose upon the defendant a fine, not exceeding five thousand dollars, which fine, when collected, shall be paid into the treasury of the territory. TITLE X.-OF APPEALS IN CIVIL ACTIONS. CHAPTER I.-Appeals in General. SEC. 405. A judgment or order in a civil action, except when expressly made final by this act, may be reviewed as prescribed by this act. SEC. 406. An order made out of court, without notice to the adverse party, may be vacated or modified without notice, by the judge who made it, or may be Rights of person entitled to office. Damages may be recovered. One action may settle rights of sev eral claim ants. If defendant found guilty, what judg ment render ed. Judgment or order may be reviewed. Order made out of court without no tice. vacated or modified on notice, in the manner in which other motions are made. SEC. 407. Any party aggrieved may appeal in the Party aggriev- cases prescribed in this title. The party appealing shall be known as the appellant, and the adverse party as the respondent. ed may appeal. SEC. 408. An appeal may be taken : First. From a final judgment in an action or special proceeding commenced in the court in which the same is rendered, within one year after the entry of judgment. But an exception to the decision or verdict on the ground that it is not supported by the evidence, cannot be reviewed on an appeal from the judgment unless the appeal is taken within sixty days after the rendition of the judgment. Second. From a judgment rendered on an appeal from an inferior court, within ninety days after the entry of such judgment. Third. From an order granting or refusing a new trial; from an order granting or dissolving an injunction; from an order to grant or dissolve an injunction; from an order dissolving or refusing to dissolve an attachment; from an order granting or refusing to grant a change of the place of trial; from any special order made after final judgment, and from an interlocutory judgment in actions for partition of real property, within sixty days after the order or interlocutory judgment is made and entered in the minutes of the court or filed with the clerk. SEC. 409. An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice stating the appeal from the same, or some specific part thereof, and serving a similar notice on the adverse party, or his attorney. The order of service is immaterial, but the appeal is ineffectual for any purpose unless, within five days after service of the notice of appeal, an undertaking be filed, or a deposit of money be made with the clerk, as here inafter provided, or the undertaking be waived by the adverse party in writing. Undertaking SEC. 410. The undertaking on appeal must be in writing, and must be executed on the part of the appellant, by at least two sureties, to the effect that the appellant will pay all damages and costs which may be awarded against him on the appeal, or on a dismissal on appeal. thereof, not exceeding three hundred dollars, or that sum must be deposited with the clerk with whom the judgment or order was entered, to abide the event of the appeal. SEC. 411. If the appeal be from a judgment or order directing the payment of money, it does not stay the execution of the judgment or order, unless a written undertaking be executed on the part of the appellant, by two or more sureties, to the effect that they are bound in double the amount named in the judgment or order; that if the judgment or order appealed from, or any part thereof, be affirmed, or the appeal be dismissed, the appellant will pay the amount directed to be paid by the judgment or order, or the part of such amount as to which the judgment or order is affirmed, if affirmed only in part, and all damages and costs which may be awarded against the appellant upon the appeal. Stay of exe cution on ap peal. judgment for delivery of personal SEC. 412. If the judgment or order appealed from direct the assignment or delivery of documents or personal property, the execution of the judgment or order shall not be stayed by appeal, unless the things required to be assigned or delivered be placed in the custody of Appeal from such officer or receiver as the court may appoint; or unless an undertaking be entered into on the part of the property. appellant, with at least two sureties, and in such amount as the court, or the judge thereof, may direct, to the effect that the appellant will obey the order of the appellate court upon the appeal. SEC. 413. If the judgment or order appealed from direct the execution of a conveyance or other instrument, the execution of the judgment or order shall not In case the execution directs a conveyance. Stay where execution di rects sale or possession of realty. When the ex stayed on appeal. be stayed by the appeal until the instrument is executed and deposited with the clerk with whom the judgment or order is entered, to abide the judgment of the appellate court. SEC. 414. If the judgment or order appealed from direct the sale or delivery of possession of real property, the execution of the same cannot 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 if the judgment be affirmed, or the appeal dismissed, he will pay the value of the use and occupation of the property from the time of the appeal until the delivery of the possession thereof, pursuant to the judgment or order, not exceeding a sum to be fixed by the judge of the court by which the judgment was rendered or order made, and which must be specified in the undertaking. When the judgment is for the sale of mortgaged premises, and the payment of a deficiency arising upon the sale, the undertaking must also provide for the payment of such deficiency. SEC. 415. Whenever an appeal is perfected as provided in the preceding sections of this chapter, it stays all further proceedings in the court below upon the judgment or order appealed from, or upon the matters ecution is embraced therein, and releases from levy property which has been levied upon under execution issued upon such judgment; but the court below may proceed upon any other matter embraced in the action, and not affected by the order appealed from; and the court below may, in its discretion, dispense with or limit the security required by this chapter, when the appellant is an executor, admay dispense ministrator, trustee, or other person acting in another's right. An appeal does not continue in force on an attachment unless an undertaking be executed and filed on the part of the appellant, by at least two sureties, in double the amount of the debt claimed by him, that the When court with or limit security on appeal. |