The remedy by action to review does not supersede or take away the jurisdiction of the courts to set aside and annul judgments procured by fraud or such as are wholly void, and upon grounds not mentioned in the statute as grounds for review.1

The action to review, thus provided for, is brought in the court in which the judgment sought to be reviewed was rendered; and a party may resort to this remedy or appeal, at his option, but he can not prosecute both remedies at the same time. But he is not wholly deprived of his remedy by appeal, in the end, as he may, if the decision is against him in the proceeding for review, prosecute an appeal from that decision. If, however, the proceeding to review is sustained, it is not a final disposition of the original case, but is equivalent to a reversal of the action. on appeal to a higher court; but the judgment is final as respects the proceeding to review, and is subject to appeal whether it affirms or reverses the original judgment.5

The prosecution to final judgment of a proceeding to review bars an appeal. The proceeding can not be used to relieve a party from a judgment taken against him on the ground that the attorney who appeared for him acted without authority, nor is it applicable to an ex parte proceeding by a guardian for the sale of the real estate of his ward, nor can it be used to review a judgment or decision of a court or judge thereof, in vacation, growing out of reversed or modified. An action to annul and set aside a void judgment, although it may have the form and similitude of a proceeding for the review of the judgment, is, nevertheless, not such a proceeding in strictly legal contemplation. It is proper to observe this distinction in the consideration of such cases as the one before us." Willman v. Willman, 57 Ind. 500, 503.

95.

1 Ante, sec. 84; Nealis v. Dicks, 72 Ind. 374.

2 Dunkle v. Elston, 71 Ind. 585; Klebar v. Town of Corydon, 80 Ind.

3 Dunkle v. Elston, 71 Ind. 585.

Leech v. Perry, 77 Ind. 422.

5 Brown v. Keyser, 53 Ind. 85; Keepfer v. Force, 86 Ind. 81.

Traders' Ins. Co. v. Carpenter, 85 Ind. 350.

7 Floyd Co. Agr. Ass'n v. Tompkins, 23 Ind. 348.

8 Davidson v. Lindsay, 16 Ind. 186.

any matter connected with the settlement of a decedent's estate.1

Under the codes, by which all distinctions in practice and pleading, and the forms of procedure are abolished, all final judgments or decrees, legal or equitable, are subject to review in the same way. And under the code practice this is not done by bill of review, so denominated, although the action provided for, and the writ of review, serve the same purpose. But the chancery proceeding for review has not been abolished in all of the states, either expressly, or by the creation of other remedies to take its place, but is still maintained under its original name,2 and the remedy is still applied in the federal courts.3 A court of concurrent jurisdiction with the one rendering the judgment can not entertain a proceeding to review the same. A decree upon a bill of review can not be again reviewed in a second bill of review.5

88. APPEALS. Most of the material questions affecting the jurisdiction of appellate courts have been considered in other sections of this work."

1 McCurdy v. Love, 97 Ind. 62.

2 Davis Sewing Machine Co. v. Dunbar, 32 W. Va. 335; 9 S. E. Rep. 237; Lorentz . Lorentz, 32 W. Va. 556; 9 S. E. Rep. 886; Aholtz v. Durfee, 122 Ill. 286; 13 N. E. Rep. 645; Prentiss v. Paisley, 25 Fla. 927; 7 Sou. Rep. 56; Dodge v. Northrop, 85 Mich. 243; 48 N. W. Rep. 505; Greer v. Turner, 47 Ark. 17; 14 S. W. Rep. 383; Cox v. Lynn, 138 Ill. 195; 29 N. E. Rep. 857; Curry v. Peebles, 83 Ala. 225; 3 Sou. Rep. 622; Mitchell v. Hardie, 84 Ala. 349; 4 Sou. Rep. 182.

3 Kimberly v. Arms, 40 Fed. Rep. 548; Foster's Fed. Prac., sec. 353

et seq.

Dodge v. Northrop, 85 Mich. 243; 48 N. W. Rep. 505.

5 Strader v. Heirs of Byrd, 7 Ohio, 184.

6 See, as to the different kinds of jurisdiction, ante, sec. 9; jurisdiction as to amount, as it affects appellate courts, sec. 16, p. 64; original and appellate jurisdiction, sec. 21; how question of jurisdiction may be raised in an appellate court, sec. 22, pp. 112, 114, 118; how jurisdiction may be lost, taken away, or suspended by appeal or writ of error, sec. 24, p. 150; inherent powers of courts, sec. 27; effect of appeal as a waiver of service of process, sec. 34, p. 229; see, also, the sections on the various writs by which proceedings of inferior courts are enforced, prevented, and reviewed, viz., injunctions, sec. 79; mandamus, sec. 80;

Therefore, but little further need be said in this connection. The right is said to have had its origin in the civil law and to have been introduced therefrom into equity, admiralty, and ecclesiastical proceedings, and from thence to common-law proceedings to which it was formerly unknown. And in the federal courts, and in some of the states, appeal is still the proper remedy for the review of equity cases. But, whether applied to equity, admiralty, ecclesiastical, or common-law proceedings, it may properly be regarded at the present day as wholly statutory, as it is provided for, prescribed, limited, controlled, and governed in its exercise and use by constitutional and statutory provisions which, as we shall see directly, must be observed or the remedy is lost;3 and, as the statutes of the several states differ, it would be impossible, in a general work of this character, to enter into any consideration of such statutes. The most that can be done here is to deal with general principles applicable to all statutes, leaving specific statutory regulations affecting the right, to be sought in the various local works in which

prohibition, sec. 81; habeas corpus, sec. 82; quo warranto, sec. 83; writs of error, sec. 85; certiorari, sec. 86; and writs of review, sec. 87; also new trials and vacation of judgments, sec. 84; and as to the right of appeal in contempt proceeding, ante, sec. 72; In re Deaton, 105 N. Car. 59; 11 S. E. Rep. 244; and in divorce cases, ante, sec. 73.

11 Am. & Eng. Enc. of Law, 616; Wiscart v. Dauchy, 3 Dall. 321; The San Pedro, 2 Wheat. 132.

"1. Civil. The removal of a cause from an inferior to a superior court. It was a civil-law proceeding in its origin, and was introduced therefrom into equity, admiralty, and ecclesiastical proceedings, to which it is chiefly confined, and from thence by statute into our common-law proceedings, and to which it was originally unknown. In order, therefore, that an appeal may be sustained, the right of the party to appeal must clearly appear, and it is consequently lost by any failure to comply with the statutory regulations. Appeals are distinguished from writs of error in that the former subject both the facts and the law to a re-examination, while the latter is confined to a re-examination or review of questions of law." 1 Am. & Eng. Enc. of Law, 616.

2 Idaho, etc., Co. v. Bradbury, 132 U. S. 509; 10 Sup. Ct. Rep. 177; Hayes v. Fischer, 102 U. S. 121; Surgett v. Lapice, 8 How. 48.

The San Pedro, 2 Wheat. 132; People v. Richmond, 16 Colo. 274; 26 Pac. Rep. 929; Lyons v. Lyons, 18 Cal. 448.

the subject is treated. Formerly, the remedy by appeal was regarded as the appropriate means by which to review questions of fact, as well as of law,' as distinguished from the various writs by which questions of law were open to review by an appellate court, and particularly the writ of error; and in many of the states the right of appeal has been extended to questions of law and all other questions which might formerly be raised by any of the common-law writs by which the proceedings of inferior courts were subject to review.3

Not only so, but in many of the states the remedy by appeal has been made practically the exclusive method for the review of the proceedings of lower courts for errors of law and fact;3 the writ of error being expressly abolished in some of the states; and writs of certiorari and other writs of like, or similar, nature intended to review the proceedings of such courts on account of errors committed, or even for want of jurisdiction, in some of the states, are allowed only where no appeal is provided for. But such statutes do not change the remedy, but provide another means by which it may be obtained and the form and manner of seeking the relief. Therefore, under such statutes, questions of law may be reviewed as they were by the different writs of review, but under a proceeding differing in name and form.3

Under the equity practice the appellate court had the power to look into the whole case, including the evidence, and decide it upon the merits.3 But the tendency of legislation and decided cases has been to restrict this power, and in many of the states the appellate courts are strictly courts of errors, in equity as well as in common law cases,

11 Am. & Eng. Enc. of Law, 616; Wiscart v. Dauchy, 3 Dall. 321, 327; Appeal of Long, 134 Pa. St. 641; 19 Atl. Rep. 806; Stinger v. Roeder, 3 Wash. St. 412; 29 Pac. Rep. 211; Reed v. Nixon, 36 W. Va. 681; 15 S. E. Rep. 416.

3

4

21 Am. & Eng. Enc. of Law, 616; Wiscart v. Dauchy, 3 Dall. 321, 327.

Appeal of Long, 134 Pa. St. 641; 19 Atl. Rep. 806.

Ante, secs. 21, 85; Appeal of Long, 134 Pa. St. 641; 19 Atl. Rep. 806. 5 Ante, secs. 79, 80, 81, 85, 86, 87.

:

and can not pass upon the mere weight of the evidence or the merits of the controversy.

Appeals for the removal of causes to a superior court for trial de novo are unknown to the common law, and can only be prosecuted where they are expressly authorized by statute,' but it is given in most of the states from courts of inferior jurisdiction, such as justices of the peace and similar courts. Appellate jurisdiction is frequently given by constitutional provisions, and when so given can not be taken away by statute. But in order to make the jurisdiction thus given available, legislation may still be necessary.3

Where the court is given jurisdiction, but the means of taking the appeal, or the mode of procedure, has not been provided by statute, the court has inherent power to provide therefor, by its own rules, in order to render such jurisdiction effectual.'

Appeal is not the proper remedy for the removal of a cause from a state court to the supreme court of the United States. The remedy is by writ of error.5

From territorial courts the case may, in cases of trial by jury, be removed by writ of error, and in all other cases by appeal.

The remedy by appeal being statutory, it must be sought within the time and in the manner provided by the statute in the particular case or it is wholly lost; and an appeal is no more effective when taken too soon than when taken too late.

1 Schooner Constitution v. Woodworth, 1 Scam. (Ill.) 511.

2 Ante, sec. 66.

3 Ohio & Miss. R. Co. v. Lawrence Co., 27 Ill. 49.

4 People v. Jordan, 65 Cal. 644; 4 Pac. Rep. 683.

5 Verden v. Coleman, 22 How. 192; Foster's Fed. Prac., sec. 405.

6 Idaho, etc., Co. v. Bradbury, 132 U. S. 509; 10 Sup. Ct. Rep. 177.

7 Ante, sec. 21; 1 Am. & Eng. Enc. of Law, 621; Briggs v. Barker, 145 Mass. 287; 13 N. E. Rep. 907; Gruell v. Spooner, 71 Cal. 493; 12 Pac. Rep. 511; Thompson v. White, 76 Cal. 381; 18 Pac. Rep. 399; Fairchild v. Daten, 38 Cal. 286; Gardner v. Ingram, 82 Ala. 339; 2 Sou. Rep. 879; Compte v. Toale, 24 Fla. 19; 3 Sou. Rep. 413; Executors of Yturbide v. United States, 22 How. 290; Green v. Castillo, 35 Mo. App. 127.

Joint School Dist. v. Kemen, 68 Wis. 246; 32 N. W. Rep. 42; Rose's Estate, 72 Cal. 577; 14 Pac. Rep. 369.