steps necessary to remove the cause to the U. S. supreme court; held, that the territorial supreme court had not lost jurisdiction to remit its judg ment to the lower court. Openshaw v. Utah and Nevada Ry. Co., 6 U. 268; 21 P. 999. Judgment on appeal is not binding on parties in the lower court who are not made such in the appellate court. In re Gibbs, 4 U. 97; 6 P. 525. Perfecting an appeal and giving a supersedeas bond in a case where an injunction has been granted, does not nullify decree or suspend the operation of the injunction. Bullion-Beck & Cham- But appeal in a water case from decree dividing 3314. Undertaking where judgment directs or prohibits particular act. Stay. If the judgment appealed from directs or prohibits the doing of any particular act or thing, and no express provision is made by statute in regard to the undertaking to be given on appeal therefrom, the execution thereof shall not be stayed by an appeal therefrom, unless an undertaking be entered into on the part of the appellant in such sum as the court or judge shall direct, and by at least two sureties, to the effect that the appellant will pay all damages which the opposite party may have sustained by the not doing or the doing of the particular act or thing directed to be done or prohibited from being done by the judgment appealed from, and to such further effect as the court or judge shall, in discretion, direct. Wis., S. & B. An. S. (1889) ? 3059*. 3315. No stay in case of usurpation of office. Sale of perishable property. Where the defendant is adjudged guilty of usurping, intruding into, or unlawfully holding public office, civil or military, within this state, the execution of the judgment shall not be stayed by an appeal. Where the judgment appealed from, directs the sale of perishable property and proceedings are stayed, the court may order the property to be sold and the proceeds thereof to be deposited to abide the judgment of the appellate court. Cal. C. Civ. P. 2 949*. Judgment of ouster not stayed by appeal, ? 3626. 3316. Clerk to transmit original papers to supreme court. Amended Copies sent if directed. Upon an appeal being perfected, the clerk of the court from which the appeal is taken, shall, at the expense of the appellant, forth-Chap 62 with transmit to the supreme court the papers constituting the record on appeal. 199 The court may, however, for good cause shown, direct copies to be sent in lieu of the originals. The clerk shall also, in all cases, transmit to the supreme court the notice of appeal together with a certificate of the clerk that an undertaking on appeal, in due form, or a stipulation of the parties waiving an undertaking, has been properly filed; and he shall annex to the papers so transmitted a certificate under his hand and the seal of the court from which the appeal is taken, certifying that they are the original papers, or copies as the case may be, and that they are transmitted to the supreme court pursuant to such appeal. No further certificate or attestation shall be necessary. [C. L. SS 3647-9*. Wis., S. & B. An. S. (1889) ? 3050*. What constitutes record on appeal, ? 3302. 3317. Id. Failure to transmit, ground for dismissal. If the appellant shall fail to cause such papers to be transmitted and filed in the supreme court within thirty days after the perfecting of the appeal, the appeal may be dismissed on motion of the respondent. [C. L. § 3650*. Cal. C. Civ. P. 954. See Sup. '95, p. 28. Costs on dismissal, 3345. 3318. Dismissal affirms judgment. Exception. Amendments permitted. The dismissal of an appeal is in effect an affirmance of the judgment or order appealed from, unless the dismissal is expressly made without prejudice to another appeal. [C. L. § 3651. Cal. C. Civ. P. 2 955. When motion to dismiss appeal is denied, the appellant is estopped from claiming that he afterward abandoned the appeal. Corinne M. C. & S. Co. v. Johnston, 5 U. 147; 13 P. 17. Motion to dismiss must be based on all grounds then existing therefor; grounds not specified are waived. Stevens v. Higginbotham, 6 Ū. 341; 23 P. 757. 3319. Imperfect appeal may be cured by permission. When a party shall in good faith give notice of appeal, and shall omit, through mistake or accident, to do any other act necessary to perfect the appeal or make it effectual, or to stay proceedings, the court from which the appeal is taken or the judge thereof, or the supreme court or one of the justices thereof, may permit an amendment or the proper act to be done, on such terms as may be just. § 3650*. Wis., S. & B. An. S. (1889) 3068. Minn. (1894) 26134*. Where a motion to dismiss an appeal is made upon the ground that no undertaking on appeal has been filed in the court below, and such motion is met by an affidavit that the appeal has been taken in good faith, the court will allow a new and additional undertaking on appeal to be filed. Almy v. Raybould, 2 U. 277. [C. L. Section 3650, C. L. 1888, does not authorize the giving of an undertaking in the supreme court in the first instance, but only in a case where an insufficient undertaking has been given in the lower court within the time prescribed by law. Cook v. O. S. L. & U. N. Ry., 7 U. 416; 27 P. 5. 3320. Restitution. Innocent parties protected. Costs on appeals for delay. When the judgment or order is reversed or modified, the appellate court may make complete restitution of all property and rights lost by the erroneous judgment or order, so far as the restitution is consistent with the protection of a purchaser of property at a sale ordered by the judgment or had under process issued upon the judgment on the appeal from which the proceedings were not stayed; and for relief in such cases, the appellant may have his action against the respondent enforcing the judgment for the proceeds of the sale of the property, after deducting therefrom the expenses of the sale. When it appears to the appellate court that the appeal was made for delay, it may add to the cost such damages as may be just. [C. L. § 3653. Cal. C. Civ. P. 2 957. Costs on appeal, 3344. Supreme court, how constituted, quorum, powers, etc., ?? 652-669. 3321. Remittitur within thirty days. Exception. The clerk of the supreme court shall remit to the lower court the papers transmitted to the supreme court on the appeal, together with the judgment or decision of the supreme court thereon, within thirty days after the same shall have been made, unless the supreme court, on application of either of the parties, shall direct them to be retained for the purpose of enabling such parties to move for a rehearing. [C. L. § 3654*. Cal. C. Civ. P. ? 958*. Cost bill must be filed within thirty days, 3351. Judgment to be remitted, 2655. JUDGMENT ON REMITTITUR. Judgment n supreme court is effective before remittitur. Where it dismisses the action the lower court can take no further proceedings therein. Wall v. Dodge, 3 U. 168; 2 P. 206. Judgment upon remittitur, directing demurrer to be sustained, plaintiff having elected to stand upon complaint, leaves no error to be considered. Fenton v. Salt Lake County, 4 U. 466; 11 P. 611. If a cause is reversed and remanded without instructions, where the findings are full and are not excepted to, the trial court must enter such judgment as the record and opinion warrant without a retrial. Coombs v. S. L. & Ft. D. Ry. Co., 11 U. 137; 39 P. 503. 3322. Petition for rehearing stays proceedings. Contents. A petition for a rehearing shall operate as a stay of proceedings until a decision of the motion therein. The petition therefor shall state the grounds upon which it is based, and shall present at large the points, authorities, and reasons relied upon therefor, and shall be supported by the certificate of the attorney of the party, if he has appeared by attorney, to the effect, that in his opinion, there is good reason to believe the judgment objected to is erroneous and that the cause ought to be re-examined. In all cases, where on notice to the party against which the judgment is entered in any case, the party does not signify an intention to move for a rehearing, the court may order a remittitur at any time. [C. L. § 3654*. REHEARING. Petition for rehearing is a pleading, and should not be an argument. Points and authorities thereon should be submitted in a separate paper. Enright v. Grant, 5 U. 400; 16 P. 595. A rehearing may be granted, even when the result must be the same as announced in the original opinion, when the concurrence of one of two judges constituting the court delivering the judgment on appeal is limited to the result, and thereby the law of the case is not made; and (2) the original opinion fails to consider a point raised upon the appeal, which, if tenable, might be fatal to the cause of action set forth in the complaint; and (3) the former opinion announces certain rules of law which, in the judgment of the court as constituted when the motion for rehearing is considered, require modification to prevent misapplication of same upon a new trial of the cause. Fenstermaker v. Tribune Pub. Co., 13 U. 532; 45 P. 1097. Rehearing will be denied unless the court is convinced either that it failed to comprehend some material point in the case, that it erred in its conclusions, or that some matter has been discovered that was unknown when the case was argued. Venard v. Green, (Venard v. Old Hickory Min. Co.,) 4 U. 67; 7 P. 408; 6 P. 415. In re McKnight, 4 U. 237; 9 P. 299. The question whether one of the justices who sat in a hearing of a case upon appeal, but who dissented from the decision, was legally a member of the court, will not be examined on motion for a rehearing, no such question having been raised before, and no facts being shown to warrant the inquiry. People v. Tidwell, 5 U. 88; 12 P. 638. CHAPTER 46. MOTIONS AND ORDERS. 3323. Order and motion defined. Every direction of a court or judge made or entered in writing, and not included in a judgment, is denominated an order. An application for an order is a motion. [C. L. § 3670. Cal. C. Civ. P. 1003. 3324. Motions and orders, where made. Motions must be made in the court in which the action is pending. Orders made out of court may be made by the judge of the court in any part of the state. [C. L. § 3671. Cal. C. Civ. P. 2 1004. Powers at chambers, ?? 682, 712. When order refused, application not to be made to another judge, 715. Where a party appears in opposition to an ex parte motion, he is thereafter precluded from treating the order as ex parte. Smith v. Fisher, 3 U. 24; 5 P. 545. 3325. Five days' notice of motion. Exceptions. Court may shorten time. When a written notice of a motion is required by this code, or by a rule of the supreme or district court, it must be given, if the court be held in the same county with both parties, five days before the time appointed for the hearing; otherwise, ten days. When the notice is served by mail, the number of days before the hearing must be increased one day for every twenty-five miles of distance between the place of deposit and the place of service; such increase, however, not to exceed in all thirty days; but in all cases the court, or a judge thereof, may prescribe a shorter time. [C. L. § 3672. Cal. C. Civ. P. ? 1005. 3326. Hearing of motion or order continued or transferred, when. When a notice of motion is given, or an order to show cause is made returnable before a judge out of court, and at the time fixed for the motion or on the return day of the order, the judge is unable to hear the parties, the matter shall stand continued until the further order of the court or judge, or it may be transferred by his order to some other judge. [C. L. § 3673. Cal. C. Civ. P. 2 1006*. 3327. Order to pay money enforceable as if a judgment. Whenever an order for the payment of a sum of money is made by a court, or judge thereof, pursuant to the provisions of this code, it may be enforced by execution in the same manner as if it were a judgment. [C. L. § 3674. Cal. C. Civ. P. 2 1007. An 3328. Vacating order made out of court without notice. 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 vacated or modified on notice, in the manner in which other motions are made. [C. L. § 3633. Cal. C. Civ. P. 2 937. This section applies to temporary injunction. Leitham v. Cusick, 1 U. 242. 3329. Time may be extended in all cases, except notice of appeal. When an act to be done as provided in this code relates to the plead ings in the action, or the undertakings to be filed, or the justification of sureties, or the preparation of bills of exception or of amendments thereto, or to the service of notices other than of appeal, the time allowed by this code may be extended, upon good cause shown, by the court in which the action is pending, or a judge thereof. [C. L. § 3711. Cal. C. Civ. P. 2 1054. See Sup. '89, p. 406, and Sup. '95, p. 30. Service of notices, 3330-3337. Time to answer, demand, or reply may be extended, ? 3005. Answer or motion for new trial may be allowed after time limited, 3005. CHAPTER 47. NOTICES, AND FILING AND SERVICE OF PAPERS. 3330. Notices must be in writing. Service when not prescribed. Notices must be in writing, and notices and other papers may be served upon the party or attorney in the manner prescribed in this chapter, when not otherwise provided by this code. [C. L. § 3675. Cal. C. Civ. P. 2 1010. Pleadings subsequent to complaint to be filed and served, 2999. Time for service of notice may be extended, 3329. Order granted without notice may be vacated without notice, 3328. 3331. Service of notices, etc., how made. The service may be personal, by delivering to the party or attorney on whom the service is required to be made, or it may be as follows: 1. If upon an attorney it may be made during his absence from his office by leaving the notice or other papers with his clerk therein, or with a person having charge thereof; or when there is no person in the office, by leaving them, between the hours of six in the morning and nine in the evening, in a conspicuous place in the office; or if it be not open so as to admit of such service, then by leaving them at the attorney's residence, with some person of suitable age and discretion; and if his residence be not known, then by putting the same, inclosed in an envelope, into the postoffice directed to such attorney. 2. If upon a party, it may be made by leaving the notice or other paper at his residence, between the hours of six in the morning and nine in the evening, with some person of suitable age and discretion; and if his residence be not known, by putting the same, inclosed in an envelope, into the postoffice directed to such party. [C. L. § 3676*. Cal. C. Civ. P. ? 1011*. Service upon sheriff, 596. Notice by telegraph, ? 2697. Service must be made upon the attorney, if one appear, 3335. 3332. Id. Service by mail. Service by mail may be made when the person making the service, and the person on whom it is to be made, reside or have their offices in different places, between which there is a regular communication by mail. [C. L. § 3677. Cal. C. Civ. P. 1012. 3333. Id. How made. When complete. In case of service by mail the notice or other paper must be deposited in the postoffice, addressed to the person on whom it is to be served at his office or place of residence, and the postage paid. The service is complete at the time of the deposit, but if within a given number of days after such service a right may be exercised, or an act is to be done by the adverse party, the time within which such right may be exercised or act be done is extended one day for every twenty-five miles distance between the place of deposit and the place of address; such extension, however, not to exceed thirty days in all. [C. L. § 3678. Cal. C. Civ. P. ? 1013*. Service by telegraph, 3337. 3334. Appearance defined. After appearance, defendant entitled to notice. A defendant appears in an action when he answers, demurs, or gives the plaintiff written notice of his appearance, or when an attorney gives notice of appearance for him. After appearance, a defendant or his attorney is entitled to notice of all subsequent proceedings of which notice is required to be given. But where a defendant has not appeared, service of notice or papers need not be made upon him unless he is imprisoned for want of bail. [C. L. § 3679. Cal. C. Civ. P. 1014. Guardian may appear for ward and waive service of process, 4046. Appearance or acknowledgment of service, 2945. Filing and service of pleadings subsequent to complaint, ? 2999. Service must be upon the attorney, if one appears, 3335. 3335. Service on non-residents. On attorney. When a plaintiff or a defendant who has appeared resides out of the state, and has no attorney in the action or proceeding, the service may be made on the clerk for him. But in all cases where a party has an attorney in the action or proceeding, the service of papers when required must be upon the attorney instead of the party, except of subpoenas, writs, and other process issued in the suit, and of papers to bring him into contempt. [C. L. § 3680. Cal. C. Civ. P. 2 1015. 3336. Provision not applicable to process or contempt. The foregoing provisions of this chapter do not apply to the service of a summons or other process, or of any paper to bring a party into contempt. [C. L. § 3681. Cal. C. Civ. P. ? 1016. 3337. All papers may be sent by telegraph for service. Method. Any summons, writ, or order in any civil suit or proceeding, and all other papers requiring service, may be transmitted by telegraph for service in any place, and the telegraphic copy of such writ or order or paper so transmitted may be served or executed by the officer or person to whom it is sent for that purpose, and returned by him, if any return be requisite, in the same manner, and with the same force and effect, in all respects, as the original thereof might be delivered to him, and the officer or person serving or executing the same has the same authority, and is subject to the same liabilities, as if the copy were the original. The original, when a writ or order, must also be filed in the court from which it was issued and a certified copy thereof must be preserved in the telegraph office from which it was sent. In sending it, either the original or the certified copy may be used by the operator for that purpose. Whenever any document to be sent by telegraph bears a seal, either private or official, it is not necessary for the operator in sending the same to telegraph a description of the seal or any words or device thereon, but the same may be expressed in the telegraphic copy by the letters "LS" or by the word "seal." [C. L. § 3682. Cal. C. Civ. P. 2 1017. Notices, conveyances, notes, etc., may be sent by telegraph, ?? 2697-2700. CHAPTER 48. COSTS. 3338. Compensation of attorneys left to agreement. Costs. The compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to costs and disbursements, as hereinafter provided. [C. L. § 3683. Cal. C. Civ. P. 2 1021. Attorney's lien, 135. Fees allowed by law to attorneys, see note to ? 135. A party to an action has no vested right to costs until the rendition of the judgment, and the statute as to costs in existence at that time will control the question. Hepworth v. Gardner, 4 U. 439; 11 P. 566. 3339. When costs allowed as of course. to the prevailing party in the following cases: Costs are allowed of course |