judgment is given, and the mode in which it shall be done is provided, it can not be done in any other way.'

Where the right to proceed under a statute is given only to certain designated persons, or class of persons, a party seeking relief under it must bring himself within its provisions, and the fact that he is one of the persons entitled to take advantage of the statute must appear on the face of the proceedings, or the court will be without jurisdiction.2

Where a court of general jurisdiction has special authority conferred upon it by statute, it is so far a court of inferior or special jurisdiction, and is governed by the same rules, so far as it attempts to exercise such special authority.3

If the special jurisdiction conferred upon a court, whether of inferior or superior jurisdiction, is summary and extraordinary in its nature, the requirements of the statute must be strictly complied with. In other cases, not summary in their nature, a substantial compliance. with the statute is usually held to be sufficient."

1 Smith v. Chandler, 13 Ind. 513; Doctor v. Hartman, 74 Ind. 221, 225; Foist . Coppin, 35 Ind. 473; Brown v. Goble, 97 Ind. 86.

2 Shivers . Wilson, 5 Harris & Johns. 130; 9 Am. Dec. 497.

3 Gunn v. Howell, 27 Ala. 663; 62 Am. Dec. 785.

Thatcher v. Powell, 6 Wheat. 119, 127; Galpin v. Page, 85 U. S. 350. 5 White v. Conover, 5 Blkf. (Ind.) 462; Morrow v. Weed, 4 Ia. 77; 66 Am. Dec. 122.

"There is no difficulty in proving or in admitting the common rule in relation to inferior jurisdiction and special powers; the difficulty lies in the application of the rule to details. In reference to the exercise of a statutory power, we find various adjectives used, such as 'closely,' 'strictly,' 'rigidly,' 'exactly. These are used by counsel. They are used in the head notes of cases, and not unfrequently in the opinions of the courts. Now, if they mean any thing, it is that the authority is to be exercised literally; and yet it is believed that not a case can be found in which a court has said that such a power must be followed with literal exactness-that is, literally. The truth is, that the rule, stripped of this verbiage and divested of expletives, is that when a special authority or power is given, and the manner of its exercise is pointed out, the power or authority must be pursued in the manner dictated. It is probable that no court has ever held that the slightest possible deviation is fatal, and yet this is the inevitable consequence if the use of the above adjectives is authoritative. The only true rule

Where a special mode of acquiring jurisdiction of the person of a non-resident defendant, other than by personal service, or in any mode not according to the course of the common law, is provided for, it is held that whether the court seeking to acquire jurisdiction is one of general or special jurisdiction a strict and literal compliance with the statutory provisions is necessary.1

of construction in this respect, and that which the courts have sometimes in terms, and uniformly in practice, adopted, is that the power is to be exercised substantially in the manner prescribed. These ideas will be adverted to and illustrated hereafter under the points made and the cases cited." Morrow v. Weed, 4 Ia. 77; 66 Am. Dec. 122, 124.

1 Galpin v. Page, 85 U. S. 350; McMinn v. Whelan, 27 Cal. 300; Jordon v. Giblin, 12 Cal. 100; Ricketson v. Richardson, 26 Cal. 149.

In the case of Galpin v. Page, 85 U. S. 350, a leading case on this subject, the Supreme Court of the United States thus stated the law: When, therefore, by legislation of a state, constructive service of process by publication is substituted in place of personal citation, and the court, upon such service, is authorized to proceed against the person of an absent party, not a citizen of the state nor found within it, every principle of justice exacts a strict and literal compliance with the statutory provisions. And such has been the ruling, we believe, of the courts of every state in the Union. It has been so held by the Supreme Court of California in repeated instances. In Jordan v. Giblin, 12 Cal. 100, decided in 1859, service of publication was attempted, and the court said that it had already held, 'in proceedings of this character, where service is attempted in modes different from the course of the common law, that the statute must be strictly pursued to give jurisdiction. A contrary course would encourage fraud and lead to oppression.' In Ricketson v. Richardson, 26 Cal. 149, decided in 1864, the court, referring to the section of the statute authorizing service by publication, said: These sections are in derogation of the common law, and must be strictly pursued in order to give the court jurisdiction over the person of the defendant. A failure to comply with the rule there prescribed in any particular is fatal where it is not cured by an appearance.' In McMinn v. Whelan, 27 Cal. 300, decided in 1866, the plaintiff in ejectment traced his title from one Maume. The defendants endeavored to show that the title had passed to one of them under a previous judgment against Maume. This judgment was recovered against Maume and others, who were non-residents of the state, upon service of summons by publication. It appeared from the record that a supplemental complaint had been filed in the action, and that the summons published was issued upon the original complaint, and not after that had been superseded by the supplemental complaint. It was objected that the publication thus made was insufficient to give the court jurisdiction of the person of the absent defendants; the objection was answered by

The question sometimes arises whether a mere recital in the record that the steps necessary to give jurisdiction. have been taken or have been waived, when they are such

the position that the judgment could not be questioned collaterally for the reason that the jurisdiction of a court of general or superior jurisdiction would be presumed in the absence of evidence on the face of the record to the contrary. But the court held the objection well taken, and after referring to the case of Peacock v. Bell, in Saunders, said that that case 'involved the question of jurisdiction as to the subject-matter of the action and not as to the person of the defendant, and it may be doubted if a case can be found which sanctions any intendment of jurisdiction over the person of the defendant when the same is to be acquired by a special statutory mode without personal service of process. If jurisdiction of the person of the defendant is to be acquired by publication of the summons in lieu of personal service, the mode prescribed must be strictly pursued.'

"But it is said that the court exercises the same functions and the same power, whether the service be made upon the defendant personally or by publication, and that, therefore, the same presumption of jurisdiction should attend the judgment of the court in the one case as in the other. This reasoning would abolish the distinction in the presumptions of law when applied to the proceedings of a court of general jurisdiction, acting within the scope of its general powers, and when applied to its proceedings had under special statutory authority. And, indeed, it is contended that there is no substantial ground for any distinction in such cases. The distinction, nevertheless, has long been made by courts of the highest character, both in this country and in England, and we had supposed that its existence was not open to discussion. However high the authority to whom a special statutory power is delegated,' says Mr. Justice Coleridge of the queen's bench, we must take care that in the exercise of it the facts giving jurisdiction plainly appear, and that the terms of the statute are complied with. The rule applies equally to an order of the lord chancellor as to any order of petty sessions.' Christie v. Unwin, 3 Per. & Dav. 208.

6

666

"A court of general jurisdiction,' says the supreme court of New Hampshire may have special and summary powers, wholly derived from statutes, not exercised according to the course of the common law, and which do not belong to it as a court of general jurisdiction. In such cases, its decisions must be regarded and treated like those of courts of limited and special jurisdiction. The jurisdiction in such cases, both as to the subject-matter of the judgment and as to the persons to be affected by it, must appear by the record; and every thing will be presumed to be without the jurisdiction which does not distinctly appear to be within it.' Morse . Presby, 5 Fost. 302.

"The qualifications here made that the special powers conferred are not exercised according to the course of the common law, is important. When the special powers conferred are brought into action according

as may be waived, is conclusive or even prima facie evidence of jurisdiction. This question has been considered in another place.1

The question as to what are and what are not courts of inferior or special jurisdiction has also received attention elsewhere."

21. ORIGINAL AND APPELLATE JURISDICTION.-Original jurisdiction is that which is conferred upon or inherent in a court in the first instance. Appellate jurisdiction is the power to review the judgment, order, or decree of some inferior court.3

"Appellate jurisdiction is the authority of a superior tribunal to review, reverse, correct, or affirm the decisions of an inferior judicial tribunal in cases where such decisions are brought before the superior court pursuant to law."

"The essential criterion of appellate jurisdiction is that

to the course at that law; that is, in the usual form of common law and chancery proceedings, by regular process and personal service, where a personal judgment or decree is asked, or by seizure or attachment of the property where a judgment in rem is sought, the same presumption of jurisdiction will usually attend the judgments of the court as in cases falling within its general powers. Such is the purport of the language and decision of this court in Harvey v. Tyler, 2 Wall. 332. But where the special powers conferred are exercised in a special manner, not according to the course of the common law, or where the general powers of the court are exercised over a class not within its ordinary jurisdiction upon the performauce of prescribed conditions, no such presumption of jurisdiction will attend the judgment of the court. The facts essential to the exercise of the special jurisdiction must appear in such cases upon the record.

"The extent of the special jurisdiction and the conditions of its exercise over subjects or persons necessarily depend upon the the terms in which the jurisdiction is granted, and not upon the rank of the court upon which it is conferred. Such jurisdiction is not, therefore, the less to be strictly pursued because the same court may possess over other subjects or other persons a more extended and general jurisdiction."

1

Post, secs. 23, 25. 'Anderson's Dic. of Law, 580.

2 Ante, sec. 7.

Elliott's App. Pro., sec. 16.

it revises and corrects the proceedings in a cause already instituted and does not create the cause. In reference to judicial tribunals, an appellate jurisdiction, therefore, necessarily implies that the subject-matter has already been instituted in and acted upon by some other court whose judgment or proceedings are to be revised. This appellate jurisdiction may be exercised in a variety of forms, and, indeed, in any form which the legislature may choose to prescribe, but still the substance must exist before the form can be applied to it." 1

Usually the jurisdiction extends only to final judgments, orders, and decrees, but this is subject to legislative regulation, and, in some of the states, the right of appeal is given from interlocutory decrees and orders. Independent, however, of some statutory enactment extending the right, it is confined to final judgments, decrees, or orders, and definitions of appellate jurisdiction usually so limit it.2

But as the right of appeal is entirely statutory it may be extended at the will of the law-making power. In this appeals differ from writs of error which existed at common law and may be exercised independent of statute. But this common law right to a writ of error may be modified or entirely taken away by statute, and in some of the states it has been abolished. In those states in which writs of error are abolished appellate courts can only obtain jurisdiction by appeal in the manner and at the time prescribed by statute.

A court may be vested with both original and appellate jurisdiction, and courts whose jurisdiction is essentially and so far as their express authority is concerned entirely appellate, are possessed of certain inherent and incidental powers, which belong to every court of general or superior jurisdiction, whether its jurisdiction be original or appellate.3

But little need be said in this connection as to the original jurisdiction of courts. The subject has been suf

1 2 Story Const., sec. 1761.

2 Anderson's Die. of Law, 580; Elliott's App. Pro., sec. 80.