the case on his trial docket for a new trial of the whole matter at the ensuing term of said court.

Code, s. 880; C. C. P., s. 539; 1876-7, c. 251, s. 8.

609. Appeal from justice heard on original papers. The appeal shall, in all cases, be heard on the original papers, and no copy thereof need be furnished for the use of the appellate court.

Code, s. 881; C. C. P., s. 540.

610. Appeal from the clerk. Any party may appeal from any decision of the clerk of the superior court on an issue of law or legal inference to the judge without undertaking.

Code, s. 252; C. C. P., s. 109.

611. When taken; who may take. An appeal must be taken within ten days after the entry of the order or judgment of the court; but an appeal can only be taken by a party aggrieved, who appeared and moved for or opposed the order or judgment appealed from, or who being entitled to be heard thereon, had no notice or opportunity to be heard; which fact may be shown by affidavit or other proof. Code, s. 253; C. C. P., s. 492.

612. Duty of clerk on appeal prayed. On such appeal the clerk, within three days thereafter, shall prepare a statement of the case, of his decision and of the appeal and shall sign the same; he shall, within the time aforesaid, exhibit such statement to the parties or their attorneys on request; if such statement is satisfactory, the parties or their attorneys shall sign the same; if either party object to the statement as partial or erroneous, he may put his objections in writing, and the clerk shall attach such writing to his statement, and within two days thereafter he shall send such statement, together with the objections, and copies of all necessary papers, by mail or otherwise, to the judge residing in the district, or in his absence to the judge holding the courts of the district, for his decision. Code, s. 254; C. C. P., s. 110.

613. Duty of judge on appeal. It shall be the duty of the judge on receiving a statement of appeal from the clerk, or the copy of the record of an issue of law, to decide the questions presented within ten days. But if he shall have been informed in writing, by the attorney of either party, that he desires to be heard on the questions, the judge shall fix a time and place for such hearing, and give the attorneys of both parties reasonable notice thereof. He shall transmit his decision in writing, endorsed on, or attached to, the record to the clerk of the court, who shall immediately acknowledge the receipt thereof, and within three days after such receipt,

notify the attorneys of the parties of the decision and on request and the payment of his legal fees, give them a copy thereof, and the parties receiving such notice may proceed thereafter according to law.

Code, s. 255; C. C. P., s. 113.

614. Judge determines entire controversy; may recommit. Whenever any civil action or special proceeding begun before the clerk of any superior court shall be for any ground whatever sent to the superior court before the judge, the judge shall have jurisdiction; and it shall be his duty, upon the request of either party, to proceed to hear and determine all matters in controversy, in such action, unless it shall appear to him that justice would be more cheaply and speedily administered by sending the action back to be proceeded in before the clerk, in which case he may do so.

1887, c. 276.

XXVII. EXECUTION.

615. Judgment enforced by. Where a judgment requires the payment of money or the delivery of real or personal property the same may be enforced in those respects by execution, as provided in this subchapter. Where it requires the performance of any other act a certified copy of the judgment may be served upon the party against whom it is given, or upon the person or officer, who is required thereby or by law to obey the same, and his obedience thereto enforced. If he refuse, he may be punished by the court as for contempt. Code, s. 441; C. C. P., s. 257.

616. Kinds of; signed by clerk; sealed, when. There shall be three kinds of execution: one against the property of the judgment debtor, another against his person, and the third for the delivery of the possession of real or personal property, or such delivery with damages for withholding the same. They shall be deemed the process of the court, and shall be subscribed by the clerk, and when to run out of his county, must be sealed with the seal of his court. Code, s. 442; C. C. P., s. 258.

617. Against married woman. An execution may issue against a married woman, and it shall direct the levy and collection of the amount of the judgment against her from her separate property, and not otherwise.

Code, s. 443; C. C. P., s. 259.

618. Clerk to issue, in six weeks; alias; penalty. The clerks of the superior court shall issue executions on all judgments rendered

in their respective courts, unless otherwise directed by the plaintiff therein, within six weeks of the rendition of the judgment, and shall endorse upon the record the date of such issue; and if the executions issued are not returned satisfied to the courts to which they are made returnable, the clerks shall issue alias executions, within six weeks thereafter, unless otherwise instructed as aforesaid. And every clerk who shall fail to comply with the requirements of this section shall be liable to be amerced in the sum of one hundred dollars for the benefit of the party aggrieved, under the same rules that are provided by law for amercing sheriffs, and shall be further liable to the party injured by suit upon his bond. Code, s. 470; R. C., c. 45, s. 29; 1850, c. 17, ss. 1, 2, 3.

619. Within three years as of course. The party in whose favor judgment has been heretofore or shall hereafter be given, and in case of his death, his personal representatives duly appointed, may at any time within three years after the entry of judgment proceed to enforce the same, by execution, as provided in this subchapter.

Code, s. 437; C. C. P., s. 255.

After

620. After three years, by leave obtained after notice. the lapse of three years from the entry of judgment on the judgment docket, an execution can be issued only by leave of the court, upon motion, with personal notice to the adverse party, unless he be absent or nonresident, or can not be found to make such service, in which case such service may be made by publication, or in such other manner as the court shall direct. Such leave shall not be given unless it be established by the oath of the party, or by other satisfactory proof, that the judgment, or some part thereof, remains unsatisfied and due. But the leave shall not be necessary when execution has been issued on the judgment within the three years next preceding the suing for execution, and return thereof unsatisfied in whole or in part.

Code, s. 440; C. C. P., s. 256.

621. Stay of, pending appeal. Whenever an appeal from any judgment shall be pending, and the undertaking requisite to stay execution on such judgment shall have been given, and the appeal perfected, the court in which such judgment was recovered may, on special motion, after notice to the person owning the judgment, on such terms as they shall see fit, direct an entry to be made by the clerk on the docket of such judgment, that the same is secured on appeal, and no execution shall issue upon such judgment during the pendency of the appeal.

Code, s. 435; 1887, c. 192; C. C. P., s. 254.

622. To what counties issued; land sold where; title passed. When the execution is against the property of the judgment debtor it may be issued to the sheriff of any county where the judgment is docketed. No execution shall issue from the superior court upon any judgment until such judgment shall be docketed in the county to which the execution shall be issued. When it requires the delivery of real or personal property it must be issued to the sheriff of the county where the property, or some part thereof, is situated. Executions may be issued at the same time to different counties. Real property adjudged to be sold must be sold in the county where it lies, by the sheriff of the county or by a referee appointed by the court for that purpose; and thereupon the sheriff or referee must execute a conveyance to the purchaser, which conveyance shall be effectual to pass the rights and interests of the parties adjudged to be sold. Code, s. 443; C. C. P., s. 259; 1871-2, c. 74; 1881, c. 75; 1905, c. 412.

623. Issued from and returned to court of rendition. Executions and other process for the enforcement of judgments, shall issue only from the court in which the judgment for the enforcement of such execution, other final process, or any of them may issue, was rendered; and the returns of executions or other final process shall be made to the court of the county from which the same issued.

Code, s. 444; 1871-2, c. 74; 1881, c. 75.

624. When tested; to what term returnable. Executions shall be tested as of the term next before the day on which they were issued, and shall be returnable to the next term of the court beginning not less than forty days after the issuing thereof, and no execution against property shall issue until the end of the term during which the judgment was rendered.

Code, s. 449; 1903, c. 544; 1870-1, c. 42, s. 7; 1873-4, c. 7.

625. Against the person, when. If the action be one in which the defendant might have been arrested, an execution against the person of the judgment debtor may be issued to any county within the state, after the return of an execution against his property unsatisfied in whole or in part. But no execution shall issue against the person of a judgment debtor, unless an order of arrest has been served, as provided in the subchapter Arrest and Bail, or unless the complaint contains a statement of facts showing one or more of the causes of arrest required by law, whether such statement of facts be necessary to the cause of action or not.

Code, s. 447; 1891, c. 541, s. 2; C. C. P., s. 260.
Note. See s. 727.

626. Defendant dying in execution; new execution against property. Parties, at whose suit the body of any person shall be taken in execution for any judgment recovered, their executors or administrators may, after the death of the person so taken and dying in execution, have new execution against the property of the person deceased, as they might have had if such person had never been in execution.

Code, s. 469; R. C., c. 45, s. 28; 21 James I., s. 24.

627. Form of execution. The execution must be directed to the sheriff, or coroner when the sheriff is a party or interested, subscribed by the clerk of the court, and must intelligibly refer to the judgment, stating the county where the judgment roll or transcript is filed, the names of the parties, the amount of the judgment, if it be for money, and the amount actually due thereon, and the time of docketing in the county to which the execution is issued, and shall require the officer substantially as follows:

Against property-no lien on personal property until levy. If it be against the property of the judgment debtor, it shall require the officer to satisfy the judgment out of the personal property of such debtor; and if sufficient personal property can not be found, out of the real property belonging to him on the day when the judgment was docketed in the county, or at any time thereafter; but no execution against the property of a judgment debtor shall be a lien on the personal property of such debtor, as against any bona fide purchaser from him for value, or as against any other execution, except from the levy thereof.

Against property in hands of personal representative. If it be against real or personal property in the hands of personal representatives, heirs, devisees, legatees, tenants of real property or trustees it shall require the officer to satisfy the judgment out of such property.

Against the person. If it be against the person of the judgment debtor, it shall require the officer to arrest such debtor, and commit him to the jail of the county until he shall pay the judgment or be discharged according to law.

For delivery of specific property. If it be for the delivery of the possession of real or personal property, it shall require the offi cer to deliver the possession of the same, particularly describing it, to the party entitled thereto, and may at the same time require the officer to satisfy any costs, damages, rents, or profits recovered by the same judgment, out of the personal property of the party against whom it was rendered, and the value of the property for which the judgment was recovered, to be specified therein, if a delivery thereof can not be had; and if sufficient personal property can not be found,