able by the court making the order; but this must be subject to the right of a court to set aside or vacate its orders during the term.

Motions for new trials must be made to the court before which the action was tried,2 and a motion, whether for a new trial or for a vacation of a judgment, must be made in the county or district in which the judgment was rendered.

So an action brought to annul or enjoin the enforcement of a judgment is usually required to be brought in the county or district where the judgment was rendered.*

In the federal courts, it is held that a motion for a new trial is addressed to the discretion of the court, and that its decision thereon is not the proper subject of a bill of exceptions, or subject to re-examination in a court of errors.5

It is frequently said that such a motion is addressed to the discretion of the court; but it does not follow, by any means, that where the judgment is the result, or may have resulted, from some error of the court, its action is not subject to review. The contrary is uniformly held. But the exception, under the practice in most of the states, and in the federal courts, must be to the ruling claimed to be erroneous, and not to the action of the court in ruling upon the motion. In some of the states, the exception goes directly to the ruling on the motion. But in either case it is a question of practice rather than of jurisdiction, except that an exception to the ruling on the motion, in

1 Hanson v. Hanson, 20 Pac. Rep. 736.

2 Minkler v. Estate of Minkler, 14 Vt. 558.

3 Godwin v. Monds, 101 N. Car. 354; 7 S. E. Rep. 793.

Grattan v. Matteson, 51 Ia. 622.

5 Coleman v. Bell, 4 N. Mex. 46; 12 Pac. Rep. 657; United States v. Buford, 3 Pet. 12; Brown v. Clarke, 4 How. 4; Life & Fire Ins. Co. v. Heirs of Wilson, 8 Pet. 291.

* Detroit Tug, etc., Co. v. Gartner, 75 Mich. 360; 42 N. W. Rep. 968; People v. Sutton, 73 Cal. 243; 15 Pac. Rep. 86; 16 Am. & Eng. Enc. of Law, 503, 516.

stead of the error complained of, may prevent an appellate court from passing upon the question.'

In some of the states, a new trial is allowed to the losing party as of right in certain cases."

In such cases, the courts have no power to deny the new trial where the statute providing the terms upon which it shall be had has been complied with.3

The question whether a new trial can be had after the entry of judgment depends upon statutory provisions. At common law, and by the law of some of the states, a motion for a new trial can not be made after judgment;" but under most of the codes and statutes, the motion may be made within the time limited, whether the judgment has been entered or not.5

In some cases, a distinction is made between civil and criminal cases in this respect.

Where the cause assigned is newly discovered evidence, or other cause discovered too late to present it earlier, an affirmance of the judgment by an appellate court is not a bar to the motion."

85. WRITS OF ERROR.-Writs of error are of two kinds: coram nobis, which was returned to the court which rendered the judgment sought to be reviewed, with a view to the correction by that court of errors of fact affecting the validity and regularity of the proceedings and which were not brought into the issues; for example, such as the death of a party before judgment, or the legal disability of a party; and coram vobis, which is made returnable before a

1 Brown v. Clarke, 4 How. 4, 15.

'Lowe v. Foulke, 103 Ill. 58: Rodman v. Reynolds, 114 Ind. 148; 16 N. E. Rep. 516.

3 Rodman v. Reynolds, 114 Ind. 148; 16 N. E. Rep. 516; Keener v. Union Pac. Ry. Co., 34 Fed. Rep. 871.

Conklin v. Hinds, 16 Minn. 457.

5 Beals v. Beals, 20 Ind. 163; Willis v. State, 62 Ind. 391.

Willis v. State, 62 Ind. 391.

Sheffield v. Mullen. 28 Minn. 251; 9 N. W. Rep. 756.

8 Ante, sec. 84; 1 Black on Judg., sec. 300; Anderson's Dic. of Law, 260; 6 Am. & Eng. Enc. of Law, 810; Maple v. Havenhill, 37 Ill. App.

superior tribunal, and by which such superior court is authorized to review the record.1

The former is almost entirely out of use, having been superseded by remedies by motion in the court rendering the judgment."

The writ of error now in use is a commission by which a court of superior jurisdiction is authorized to examine a record upon which a judgment has been given by an inferior court, and, on such examination, to affirm or reverse the same according to law. It was formerly an original writ issuing out of a court of chancery.*

311; Dows v. Harper, 6 Ohio, 518; 27 Am. Dec. 270; Wynne v. Governor, 1 Yerger (Tenn.), 149; 24 Am. Dec. 448; Holford v. Alexander, 46 Am. Dec. 253, 257, note; Land v. Williams, 12 S. & M. (Miss.) 362; 51 Am. Dec. 117; Wheeler v. Winn, 91 Am. Dec. 193, note; Kemp v. Cook, 18 Md. 130; 79 Am. Dec. 681; Life Association v. Fassett, 102 Ill. 315; Bronson v. Schulten, 104 U. S. 410; Foster's Fed. Prac. 379; Dugan v. Scott, 37 Mo. App. 663.

1 Freeman on Judg., sec. 94.

2 Holford v. Alexander, 46 Am. Dec. 253, 257, note; McKinley v. Buck, 43 Ill. 488.

3 Anderson's Dic. of Law, 412; Lynes v. State, 5 Porter (Ala.), 236; 30 Am. Dec. 557; Holford v. Alexander, 46 Am. Dec. 253, 257, note; Wheeler v. Winn, 91 Am. Dec. 186, 193, note; Cohens v. Virginia, 6 Wheat. 264, 409; Chipman v. City of Waterbury, 59 Conn. 496; 22 Atl. Rep. 289.

"A writ of error is a writ issuing from a superior court commanding an inferior court of record to send up the entire record of a contested procedure." 6 Am. & Eng. Enc. of Law, 812.

4 Lynes v. State, 5 Porter (Ala.), 236; 30 Am. Dec. 557.

"In Co. Lit. 288 b, and in 2 Bac. Abr. 187, a writ of error is said to be an original writ, issuing out of the court of chancery in the nature as well of a certiorari, to remove a record from an inferior into a superior court, as of a commission to the judges of such superior court, to examine the record, and to affirm or reverse it, according to law; and lies where a party is aggrieved by any error in the foundation, proceeding, judgment, or execution of a suit in a court of record. This writ does not owe its origin to a statute. Its uses have been in some instances directed by the legislature, and as a remedial process, it has in some cases been extended. Its name indicates its true purpose. And in the case of The Queen v. Paty, 2 Salk. 504, it was held to be grantable in all cases ex debito justitiæ, except in treason and felony: See further to the same effect, a very elaborate note to 2 Saund. 100, n. 1. In treason and felony it was necessary to obtain the king's consent before the writ

It is a common law remedy for the review and correction of errors of law appearing upon the face of the record; but is one that is regulated, to a great extent, at the present day, by statute. It is held that the remedy is not applicable to a special statutory proceeding. The record can not be contradicted under the writ, but is conclusive.' The record includes all proper bills of exceptions, and the writ will therefore reach errors occurring at the trial, as, for example, rulings upon the admission of evidence, and the like, properly brought into the record by bill of exceptions, and is not confined to errors affecting the pleadings and other matters which, without a bill of exceptions, would appear upon the face of the record. As to such matters it must affirmatively appear by a bill of exceptions that error was committed; but other modes of bringing matters into the record than by bill of exceptions may be provided by statute, and this has been done. in some of the states, at different times."

The writ, as it existed at common law, can not be used to review an order made after judgment.8

In the federal courts the proper proceeding for the review of a judgment at law is by a writ of error and for the review of a decree of a court of equity or admiralty by appeal.9

The writ is the proper remedy in a criminal case.10

could issue. Yates v. People, 6 Johns. 337." Lynes v. State, 5 Porter (Ala.), 236; 30 Am. Dec. 557, 559.

1 Suydam v. Williamson, 20 How. 427; Gaffney v. People, 50 N. Y. 416; People v. Casey, 72 N. Y. 393; Reece v. Knott, 3 Utah, 436; 24 Pac. Rep. 759.

2

Chipman v. City of Waterbury, 59 Conn. 496; 22 Atl. Rep. 289; Reece v. Knott, 3 Utah, 436; 24 Pac. Rep. 759.

3 Ray v. Gore, 36 N. W. Rep. 739.

'Holford v. Alexander, 12 Ala. 280; 46 Am. Dec. 253.

5

Suydam v. Williamson, 20 How. 427; Gaffney v. People, 50 N. Y. 416. Johnson v. Lightsey, 34 Ala. 169; 73 Am. Dec. 450; Kirk v. Murphy,

16 Tex. 654; 67 Am. Dec. 640; Suydam v. Williamson, 20 How. 427.

7 Wheeler v. Winn, 53 Pa. St. 122; 91 Am. Dec. 186.

8 Polk v. Butterfield, 9 Colo. 325; 12 Pac. Rep. 216.

9 Foster's Fed. Prac., sec. 394.

10 Twitchell v. Pennsylvania, 7 Wall. 321.

As a rule, the office of the writ is confined, in the state courts, to common law actions; but this is subject to statutory control, and in some of the states the writ is allowed to review decrees in equity as well as judgments at law.1

The writ can not be used to control or affect the decision of matters resting in the discretion of the lower court. It will issue only after final judgment, and can not be used to review interlocutory decisions, orders or decrees.3 For this reason the writ will not issue from the supreme court of the United States to a state court of last resort on the reversal of a cause, or from one state court to another in such case."

It is otherwise where, in addition to a reversal, a judg ment is ordered to be entered by the lower court that will be final. A judgment of non-suit is a final judgment

within the rule."

The writ is sometimes held to be a writ of right issuing as of course, and it is generally so treated in practice in the state courts. As to the writ coram nobis it is held that it is not a writ of right and can only issue upon a showing of some error of fact. So the writ will not issue from the federal to the state courts as a matter of right.10

Litigants have no vested right to the writ. Therefore it may not only be controlled and limited by statute, but the right to it may be entirely taken away in the absence

1 Farish v. N. Mexico M. Co., 21 Pac. Rep. 82.

2 Wann v. McNulty, 2 Gil. (Ill.) 355; 43 Am. Dec. 58; Delaware, etc., Nevelle, 51 N. J. Law, 332; 19 Atl. Rep. 538.

Co. v.

3 Hammond v. People, 32 Ill. 446; 83 Am. Dec. 286; Gerish v. Johnson, 5 Minn. 23; Young . Jones, 89 Ga. 390; 15 S. E. Rep. 488; Davis v. Crouch, 94 U. S. 514; Brady v. Toledo, etc., Co., 73 Mich. 457; 41 N. W. Rep. 503; State v. Reed, 32 Pac. Rep. 202.

Davis v. Crouch, 94 U. S. 514.

5 Buck v. County of Hamilton, 99 Ill. 507.

• Commissioners r. Lucas, 93 U. S. 108.

'Murdock v. Martin, 132 Pa. St. 86; 18 Atl. Rep. 1114.

Van Antwerp v. Newman, 4 Cowen (N. Y.) 82; 15 Am. Dec. 340. 9 Tyler v. Morris, 4 Dev. & Bat. Law (N. Car.) 487; 34 Am. Dec. 395. 10 Twitchell v. Pennsylvania, 7 Wall. 321; The Anarchists Case, 123 U. S. 131; 8 Sup. Ct. Rep. 21.