ficiently covered in the several sections contained in this chapter. The subject of appellate jurisdiction calls for some special consideration, but it is only intended to treat of general principles affecting all courts, without attempting to go into details or the question as to the character or extent of the jurisdiction of any particular court or class of courts. Certain steps are necessary to be taken in order to vest appellate courts with jurisdiction. These are usually provided for by statute.

In appeals to courts of last resort the cases are usually tried by the record, and it must appear on the face of the record that the steps necessary to give the court jurisdiction of the appeal have been taken.1

The right of appeal is statutory and the statute must be followed or the appellate court will have no jurisdiction.2 All necessary steps must be taken within the time prescribed by law.3

The time can not be extended by consent of parties.* Nor can the time be extended by the appellate court. But the time does not, under some of the codes, run against parties laboring under legal disabilities."

Where the judgment appealed from is joint the necessary steps must be taken, within the time, by all of the judgment defendants, or, if any refuse to join in the appeal, notice to them must be given, where it is required, or the appeal is not effectual. An appearance and refusal

Elliott's App. Pro., sec. 12.

Zechendorf v. Zechindorf, 1 Ariz. 401; 25 Pac. Rep. 648.

3 Elliott's App. Pro., secs. 111, 128; Bornheimer v. Baldwin, 42 Cal. 27; Jarvis v. Hamilton, 37 Wis. 87; Clapp v. Hawley, 97 N. Y. 610; Stark v. Jenkins, 1 Wash. Ter. 421; Villabolos v. United States, 6 How. 81; Zechendorf v. Zechendorf, 1 Ariz. 401; 25 Pac. Rep. 648; Joyce v. Dickey, 104 Ind. 183; 3 N. E. Rep. 252; Houston v. Ducker, 86 Ky. 123; 5 S. W. Rep. 382.

*Stark . Jenkins, 1 Wash. Ter. 421; Flory v. Wilson, 83 Ind. 391; Coggswell r. Hogan, 1 Wash. St. 4; 23 Pac. Rep. 835; Herrick v. Racine Warehouse Co., 43 Wis. 93.

5 Wait v. Van Allen, 8 N. Y. 319; Verges v. Roush, 1 Neb. 113; Lavelle r. Skelly, 24 Hun (N. Y.), 642.

Bunting v. Hooper, 59 Ind. 589; Patterson v. Woodland, 28 Neb. 250; 44 N. W. Rep. 112.

to join in the appeal by such defendants after the time allowed will not cure the defect of failing to give them the required notice.'

Where an appeal has failed for want of some of the steps necessary to perfect the same this does not prevent the party from taking a second appeal within the time prescribed. But it is otherwise where the first appeal was sufficient to transfer the case to the appellate court. There can not be a second appeal when the first is pending.

Where an appeal or writ of error, is allowed upon some action of the court from which the appeal is taken, as, for example, a certificate that the cause is of such importance as to warrant an appeal, such action must be taken within the time prescribed or the appeal can not be taken or the writ of error allowed.

If it appears affirmatively from the record that the court has not jurisdiction the court will dismiss the appeal, or, when the law requires it, remand the cause to another court upon motion of either party or upon its own motion whenever brought to its attention.*

Where the question of jurisdiction depends upon the proceedings in the court below, the record of such proceedings, made by the trial court, is conclusive, and can not be controverted or changed by other evidence. The court has jurisdiction only to determine such questions as are presented by the record. Authority to decide questions, not presented by the record, can not be given by consent of the parties. And where the record shows that the subject-matter of the action is not within the appellate jurisdiction of the court, consent of parties can not give it jurisdiction. Nor can an appeal be taken by consent

1 Holloran v. Midland Ry. Co., 28 N. E. Rep. 549.

2 United States v. Cury, 6 How. 106.

3 MacLachlan v. McLaughlin, 126 Ill. 427; 18 N. E. Rep. 544.

Elliott's App. Pro., sec. 12.

5 McAurthur v. Schultz, 78 Ia. 364; 43 N. W. Rep. 223.

Elliott's App. Pro., sec. 13.

Ante, secs. 10, 12; Elliott's App. Pro., sec. 13; Board of Commissioners

v. Newman, 35 Ind. 10.

8 Crane v. Farmer, 14 Colo. 294; 23 Pac. Rep. 455.

to a court not having jurisdiction. In order to call for action on the part of an appellate court, it must appear that there is an actual controversy between the parties. And although there may be nothing in the record disclosing the fact, if the court is satisfied that the question presented is not actually in controversy between the parties, but is brought up merely to obtain the decision of the court upon an abstract or hypothetical question, the appeal will not be entertained. An appeal will lie only from the decision of a court, and not from the action of ministerial or other officers. And where a board of officers act both in a judicial and a legislative capacity, an appeal can only be had from a decision rendered by such board, as a court, in an adversary proceeding. There can be no appeal except from a decision upon a judicial question."

Under the practice in most of the states, and in the federal courts, an assignment of errors must be filed in the appellate court in order to give the court jurisdiction. It is the pleading of the appellant, and is as necessary to give the appellate court. authority to act as it is that a declaration, petition, or complaint, be filed in the court below in order to give that court jurisdiction. And as the filing of the assignment of errors is a jurisdictional step, it must be taken within the time prescribed by law. It is held, however, in some of the cases, that a party may be relieved from the consequences of a failure to file the assignment of errors within the time prescribed by law where it appears that such filing was prevented by fraud on the part of the appellee, or by accident. This is placed upon the ground that the court has the inherent power to protect its own process, and maintain its juris

Dykeman v. Budd, 3 Wis. 640.

Elliott's App. Pro., sec. 14.

Elliott's App. Pro., secs. 15, 16, 17; Auditor of State v. A. T. & S. F. R. R. Co., 6 Kan., 500, 504; 7 Am. Rep. 575.

1 Work's Ind. Pr. & Pl., sec. 34; Moffit v. The State, 40 Ind. 217; Hanna v. Board of Commissioners, 29 Ind. 170; Farley v. Board of Supervisors, 126 Ind. 468; 26 N. E. Rep. 174.

Elliott's App. Pro., sec. 78.

Elliott's App. Pro., sec. 303.

diction against fraudulent interference. In order that the appellate court may take jurisdiction of a case, the court from which the appeal is taken must have had jurisdiction of the subject-matter. The question as to the jurisdiction of the lower court may be raised for the first time in the appellate court.3 Where an appeal is taken to a court that must try the same de novo, an amendment of the complaint in the appellate court by which the amount in controversy is increased beyond the jurisdiction of the court in which the action is brought, will oust the jurisdiction of the appellate court.*

Provision is sometimes made for the transfer of actions from an inferior to a superior court where an issue is raised, not within the jurisdiction of the court before which the action is pending, as for example, where the title to real estate is brought in question before a justice of the peace. In such cases it must clearly appear that an issue has been presented that authorizes the transfer of the cause or the court to which the action is sent will have no jurisdiction. Jurisdiction thus conferred is original, and not appellate, and the court to which the action is certified tries the same as if it had been brought originally in that court. Therefore, if the court to which the action is certified would not have had jurisdiction if the action had been commenced therein, the determination of the other court that it has not jurisdiction, and the certification of the case to the higher court can give the latter no jurisdiction. And if the defendant who has made the issue in the lower court that ousted its

1 Smyth v. Boswell, 117 Ind. 365; 20 N. E. Rep. 263. Post, sec. 27. Ante, sec. 12; Post, sec. 22; Felt v. Felt, 19 Wis. 208; Stringham ". Board of Supervisors, 24 Wis. 594; Sexton v. Willard, 27 Wis. 465; Elliott's App. Pro., sec. 79.

3 Post, sec. 22; Cerro Gordo County v. Wright County, 59 Ia. 485; 13 N. W. Rep. 645.

Ante, sec. 16; Pritchard v. Bartholomew, 45 Ind. 219; Mays r. Dooley, 59 Ind. 287.

5 Post, sec. 24; Verbeck v. Verbeck, 6 Wis. 157; City of Santa Cruz v. Santa Cruz R. R. Co., 56 Cal. 143; Arroyo Ditch, etc., Co. v. Superior Court, 92 Cal. 47; 28 Pac. Rep. 54.

Arroyo Ditch, etc., Co. v. Superior Court, 92 Cal. 47; 28 Pac. Rep. 54.

jurisdiction, abandons such issue in the court to which the same is certified, the latter court thereby loses jurisdiction of the action.1

22. WHEN AND HOW QUESTION OF JURISDICTION MAY BE RAISED. The time when and the manner in which the question of jurisdiction may be raised depends in part upon the character of the court, whether it be one of superior and general jurisdiction, or one of inferior or special jurisdiction. The distinction between these different kinds of courts has been considered, as well as the difference in the manner of proving and disproving the jurisdiction of each,' and the presumptions that prevail in aid of the jurisdiction of courts of general jurisdiction.1

The right also depends, in part, upon whether it is jurisdiction of the subject-matter or of the person that is assailed. As a rule, the failure to object to the jurisdiction of the person, at the proper time, where the party appears, is a submission to the jurisdiction of the court, and waives the right to contest such jurisdiction at any subsequent time." Therefore, if a defendant believes that the court has not, for any reason, obtained jurisdiction of his person, he should, if he appears at all, enter his appearance for the special purpose of objecting to the jurisdiction, and at once enter such objection. But if he is satisfied that the court has not jurisdiction of his person, and that jurisdiction will not be presumed, he need not appear at all; and any judgment rendered against him, without jurisdiction, is void the same as if the court were without jurisdiction of the subject-matter."

The effect of a general appearance, after having ap

'City of Santa Cruz v. Santa Cruz R. R. Co., 56 Cal. 143.

Post, sec. 25.

2 Ante, sec. 7. 3 Post, sec. 23. Ante, sec. 13; Caughey v. Vance, 3 Pinney (Wis.), 275; Newell v. Gatling, 7 Ind. 147; Puterbaugh's Pl. & Prac. (Com. Law), 144; Day v. Henry, 104 Ind. 324; 4 N. E. Rep. 44; Kenney v. Greer, 13 Ill. 432; 54

Am. Dec. 439; Holloway v. Freeman, 22 Ill. 197, 202.

6

Ante, sec. 13; New Albany, etc., R. R. Co. v. Combs, 13 Ind. 490; Michels v. Stork, 44 Mich. 2; Baily v. Schrader, 34 Ind. 260.

Post, secs. 23, 25, 26.