Notice of appeal may be issued by the clerk of the supreme court before errors are assigned. Price v. Baker, 41 Ind. 570.

An appeal is considered taken when the transcript is filed in the supreme court. Harshman v. Armstrong, 43 Ind. 126.

If the question arises on a ruling on a demurrer to a complaint, the record need only contain the complaint and demurrer, but if the ruling is as to a reply, the answer and reply must also be in the record. Heizer v. Kelly, 73 Ind. 582.

Notice of an appeal may be served on the attorney of record unless he has been discharged. Richardson v. Pate, 93 Ind. 423.

If there is no notice of an appeal or an appearance a submission may be set aside. Johnson v. Miller, 43 Ind. 29.

When an appeal is not taken in term in accordance with section 638, R. S. 1881, notice must be given. Holloran v. Midland R. W. Co., 129 Ind. 274.

653. (641.) Appeal after term-Bond-Supersedeas.-642. An appeal taken after the close of the term shall not stay execution or other proceedings in the court below, unless an order to that effect be granted by the supreme court in term, or any judge thereof in term or vacation, which shall be indorsed on the transcript. The court or judge shall, at the time of making the order, direct that the appellant shall give bond to the appellee, with condition as required when an appeal is taken during the term at which the judgment is rendered.

A supersedeas may be granted by any judge of the supreme court, and it will not be set aside without notice to the parties. Northern, etc., R. R. Co. v. Michigan, etc., R. R. Co., 2 Ind. 670; Northern, etc., R. R. Co. v. Michigan, etc., R. R. Co., 3 Ind. 8. Supersedeas is not grantable when there is no assignment of errors. Henderson v. Halliday, 10 Ind. 24.

654. (642.) Bond, how approved-Stay.-643. The appeal-bond and surety may be approved by the clerk of the supreme court or by the clerk of the court below. And upon the filing of the bond, execution and all other proceedings on the judgment in the court below shall be stayed; and if execution has issued, the clerk shall notify the sheriff of the appeal and order to stay proceedings, and the execution shall be forthwith returned, and any levy made shall be relinquished. Neither the clerk of the circuit court nor of the supreme court can approve the bond on an appeal in term. Ham v. Greve, 41 Ind. 531.

655. (643.) Certificate of stay to clerk below.-644. Whenever an order to stay execution of a judgment is granted, the clerk of the supreme court shall issue a certificate thereof to the clerk of the court below.

656. (644.) Length of stay.-645. Such order shall operate until the determination of the appeal, unless otherwise ordered by the court or a judge thereof.

657. (645.) Executors-Bond not required.-646. Executors, administrators, and guardians may have an appeal and stay of proceedings in the court below, without giving an appeal-bond.

See section 2612.

When an executor, administrator or guardian is a party only in his fiduciary capacity, proceedings on appeal by them are stayed without a bond. Pate v. Moore, 79 Ind. 20.

658. (646.) Appeals from interlocutory order.-655. Appeals to the supreme court may be taken from an interlocutory order of any circuit court or judge thereof, in the following cases:

First. For the payment of money, to compel the execution of any instrument of writing, or the delivery or assignment of any securities, evidences of debt, documents, or things in action.

An appeal lies from an order directing the payment of money into court in proceedings supplementary to execution. McKnight v. Knisely, 25 Ind. 336.

And from an order directing money to be brought into court. Cook v. Citizens' Bank, 73 Ind. 256.

Any order requiring the payment of money is appealable. Pounds v. Chatham, 96 Ind. 342.

Second. For the delivery of the possession of real property or the sale thereof.

An appeal may be taken under this clause from a decree directing the sale of the real estate of a decedent. Simpson v. Pearson, 31 Ind. 1. But see Seward v. Clark, 67 Ind. 289.

Third. Granting or dissolving, or overruling motions to dissolve, an injunction in term, and granting an injunction in vacation.

The refusal to grant a temporary injunction is not appealable. Ogle v. Dill, 55 Ind. 130.

An appeal does not lie on the granting of a temporary restraining order. Cincinnati, etc., R. R. Co. v. Huncheon, 16 Ind. 436.

Nor from an order of a judge dissolving a restraining order. Pleasant v. Vevay Co., 42 Ind. 391.

An appeal lies from an order in vacation granting a temporary injunction. Flagg v. Sloan, 16 Ind. 432.

And from an order dissolving an injunction. Bronenberg v. Board, 41 Ind. 502. An appeal from an interlocutory order or injunction does not allow a party to do that which the injunction forbids. State v. Chase, 41 Ind. 356; Central Co. v. State, 110 Ind. 203; Hawkins v. State, 126 Ind. 294.

The court trying the cause may punish a party for a violation of the injunction, after appeal. State v. Chase, 41 Ind. 356; Hawkins v. State, 126 Ind. 295.

Fourth. Orders and judgments upon writs of habeas corpus made in term or vacation.

An appeal may be taken from application to be let to bail.

Ind. 260.

Ex parte Richards, 102

Or any interlocutory order in habeas corpus proceedings. Speer v. Davis, 38 Ind. 271. Where no appeal was prayed and no bond was given below, a cause can not be deemed as an appeal from an interlocutory order. Staley v. Dorset, 11 Ind. 367.

The refusal to allow or approve a report by an assignee for the benefit of creditors is not appealable. Cravens v. Chambers, 55 Ind. 5.

So, with the report of the trustee of an express trust under a will. Thiebaud e. Dufour, 57 Ind. 598.

659. (647.) When taken.-656. Such appeal may be taken at the term of the court at which the order is made; or, when made in vacation, the appeal may be taken at the time or during the next term. The appeal shall not be granted until the appellant has filed an appeal bond, as in other cases of appeal.

If an appeal is taken from the final judgment in an action for injunction, errors made in interlocutory orders will not be available. Becknell v. Becknell, 110 Ind. 42.

If an appeal is granted, the penalty of the bond and time of filing fixed by the judge, and the bond is filed in compliance with the order, the appeal will be effective. Miller v. Burket, 132 Ind. 469.

660. (648.) Length of stay.-657. Sucn appeal shall not stay proceedings upon the order more than thirty days, unless the supreme court in term, or some judge thereof in term or vacation, shall otherwise order.

On the filing of the appeal bond proceedings are stayed for thirty days, but the appellant can not do any of the acts prohibited. State, ex rel., v. Chase, 41 Ind. 356; Central Co. v. State, ex rel.,,110 Ind. 203.

661. (649.) Transcript for appeal.-637. Upon the request of the appellant, or upon being served with notice as aforesaid, and, in either case, upon the payment of the proper fee, the clerk shall forthwith make out and deliver to the party, at his request, or transmit to the clerk of the supreme court, a transcript of the record in the cause, or so much thereof as the appellant, in writing, directs, certified and sealed, to which shall be appended the written directions of the appellant above contemplated, if any.

If special directions are given as to the transcript, the certificate should be made so as to cover the portions of the record made out, and the special directions should be attached to the transcript. Reid v. Houston, 49 Ind. 181.

If the transcript is defective the appeal will not be dismissed, but the defects may be cured by certiorari. Miller v. Shriner, 87 Ind. 141.

The supreme court may look into any portion of the record before it, though not included in the directions given for making the transcript. Powell v. Bunger, 91 Ind. 64. The precipe should be appended to the transcript, and when done it is a part of the record. Allen v. Gavin, 130 Ind. 190.

662. (650.) Transcript-Certificate-When evidence omitted.— 638. All proper entries made by the clerk, and all papers pertaining to a cause, and filed therein (except a summons for the defendant, where all the persons named in it have appeared to the action, and summons for witnesses, depositions, and other papers which are used as mere evidence), are to be deemed parts of the record; but a transcript of motions, affidavits, and other papers, when they relate to collateral matters, and depositions and papers filed as mere evidence shall not be certified, unless made a part of the record by exception or order of court, and directed to be certified by the appellant. Neither shall the clerk certify any pleading first filed, when there is an amended pleading of the same matter subsequently filed, embracing all the pleadings first filed, and the amendments thereto, but shall certify such amended pleading only. Every paper and pleading above excepted may be made part of the record by exceptions or order of the court, on motion. If the clerk should certify matter not material to the determination of the appeal, the supreme court may direct the person blamable therefor to pay the costs thereof: Provided, That when in any case an appeal is prosecuted upon the question of the correct

ness of instructions given or refused, or the modifications thereof, it shall not be necessary to set out in the record all the evidence given in the cause, but it shall be sufficient in the bill of exceptions to set out the instructions or modifications excepted to, with a recital of the fact that the same were applicable to the evidence in the cause.

The phrase "all proper entries made by the clerk, and all papers pertaining to a cause, and filed therein," include such entries as the clerk is required to make of the proceedings of the court, and the complaint, answer, reply, demurrers, and instruments of writing upon which pleadings are based. Kesler v. Myers, 41 Ind. 543; Heizer v. Kelly, 73 Ind. 582.

When the clerk is in doubt as to what should be included in a transcript, he should require the appellant to give written directions. Miles v. Buchanan, 36 Ind. 490.

If a pleading is substituted by another, the original should not be included in the transcript. Miles v. Buchanan, 36 Ind. 490; Trisler v. Trisler, 54 Ind. 172.

On judgment by default, the summons and return, or affidavit and proof of publication, should appear in the record. Miles v. Buchanan, 36 Ind. 490; Barnes v. Roemer, 39 Ind. 589.

When there is an appearance the summons and return must be put in the record by special order or bill of exceptions. Cincinnati, etc., R. R. Co. v. Heim, 97 Ind. 525. The motion for a new trial and rulings thereon are a part of the record under this section. Hill v. Newman, 47 Ind. 187; Nichols v. Thomas, 53 Ind. 42.

It is only matters that are properly entered by the clerk that become parts of the record. Vanderkarr v. State, 51 Ind. 91.

When a paper is once properly inserted in the record, it may be referred to without being again copied. Binkley v. Forkner, 117 Ind. 176.

The proviso to this section makes no change in the former practice as to the necessity of having the evidence in the record on exceptions to instructions. Drinkout v. Eagle Works, 90 Ind. 423; Rozell v. City, 91 Ind. 591. See Shugart v. Miles, 125 Ind. 445; Kinney v. Dodge, 101 Ind. 573.

As to the form and contents of certificate to transcripts see Reid v. Houston, 49 Ind. 181; Logan v. Smith, 70 Ind. 597; Walker v. Hill, 111 Ind. 223; Vail v. Rinehart, 105 Ind. 6.

If the record is defective it should be corrected by motion, notice and certiorari. Figart v. Halderman, 59 Ind. 424; Du Souchet v. Dutcher, 113 Ind. 249.

This section does not apply to criminal actions. Meredith v. State, 122 Ind. 514.

663. (651.) Publication against non-resident.-636. Whenever it shall appear to the supreme court, by satisfactory proof, that the appellee in a cause appealed after the close of the term is not a resident of this state, and that a notice of the appeal can not be served upon the attorney of record in the court below, the court may order that notice of the pendency of the appeal be given in some newspaper printed and published in this state, for three weeks successively; after which the court shall proceed in all respects as if the defendant had been served with process.

See rule 17 of supreme court.

Service of notice of an appeal upon a non-resident may be made

pon his resident attorney. Hurlbut v. Hurlbut, 12 Ind. 346; Richardson v. Pate, 93 Ind. 423.

664. (652.) When appeal stands for trial.-639. Every appeal to the supreme court shall, unless otherwise ordered by the court, be re

garded as submitted for decision at the expiration of thirty days from the date of service of notice upon the appellee of the taking of the appeal, or when such notice is waived and appellee enters a general appearance, or the appeal is taken in term time and perfected within the time limited, within thirty days after the record is filed and notice as above required is given in the supreme court.

(As amended, Acts 1885, p. 219. Ell. Sup., section 28. In force July 18, 1885.)

665. (653.) Docketing-Order of hearing.-663. The clerk shall aocket all appeals in the order in which the transcripts are filed; and they shall be heard in the same order, unless the court, for good cause shown, direct a different mode of hearing.

The advancement and hearing of a cause out of its order is a matter within the discretion of the court. Parker v. State, ex rel., 132 Ind. 419.

666. (654.) Proceedings each day signed by chief judge.-662. The proceedings of the court for every day of the term shall be drawn up at full length by the clerk against the next sitting of the court, and such corrections being made therein as shall be necessary and right, they shall be signed by the chief judge of the court.

667. (655.) Assignment of errors-Answer.-647. No pleadings shall be required in the supreme court upon an appeal, but a specific assignment of all errors relied upon, to be entered on the transcript in matters of law only, which shall be assigned on or before the first day of the term at which the cause stands for trial: and the appellee shall file his answer thereto.

See rules 3 and 4 of supreme court.

The assignment of errors is in the nature of a complaint, and must be specific as to all errors relied upon. Hollingsworth v. State, ex rel., 8 Ind. 257; Trammel v. Chipman, 74 Ind. 474; Hutts v. Hutts, 62 Ind. 214.

The assignment must contain the names of the parties. Lang v. Cox, 35 Ind. 470; Darnall v. Hurt, 55 Ind. 275; Snyder v. State, ex rel., 124 Ind. 335.

The errors assigned must be on the transcript or attached thereto. Hays v. Johns, 42 Ind. 505; Wiggs v. Koontz, 43 Ind. 430; Moore v. Hammons, 119 Ind. 510. Errors may be assigned on or before the first day of the term at which the cause stands for trial. Price v. Baker, 41 Ind. 570.

But must be assigned within a year after rendition of judgment. Bacon v. Withrow, 110 Ind. 94; Lawrence v. Wood, 122 Ind. 452.

The name of the appellant should appear above that of the appellee in the caption of the assignment. Wickham v. Hess, 38 Ind. 183.

Mere irregularties in the assignment of errors are disregarded. Landon v. White, 101 Ind. 249.

The submission of a cause by agreement waives irregularities in the assignment of errors. Ridenour v. Beekman, 68 Ind. 236; Truman v. Scott, 72 Ind. 258.

A complaint can only be attacked as an entirety by assignment of error, and one good paragraph defeats the assignment. McCallister v. Mount, 73 Ind. 559; Buchanan . Lee, 69 Ind. 117; Trammel v. Chipman, 74 Ind. 474; Stout v. Turner, 102 Ind. 418. Errors must be assigned by all the appellants. Woodfill v. Town, 18 Ind. 203.

A joint assignment of errors must be good as to all joining therein. Robbins v. Magee, 96 Ind. 174; Hinkle v. Shelley, 100 Ind. 88; Tucker v. Conrad, 103 Ind. 349; Walker v. Hill, 111 Ind. 223; Sparklin v. Wardens, 119 Ind. 535; Arbuckle v. Swim, 123 Ind. 208.