§ 1. The right in general. A. Constitution and statutes.--Appeal is a strict statutory right," which may be lost by a repeal of a statute giving it, if not protected by the constitution. If a statutory right of appeal be given, a court cannot add conditions. A right to appeal is not a "vested" one,10 nor want of it a "denial of justice"; and an appeal to courts of last resort in all cases is not essential to satisfy the constitutional requirement that "all courts shall be open." Therefore, when it is provided that no appeals shall "hereafter" be taken, the statute retroacts on pending cases.' 12 B. Waiver, election, transfer, or extinguishment.13-The right may be waived." Certiorari to review the granting of a writ of error by the circuit court of appeals should be seasonably applied for.15 17 Extinguishment of the subject-matter or interest destroys the right.10 Payment of costs on a judgment carrying no money is not a satisfaction, nor is the application of a deposit in court, when there is a dispute as to the excess unpaid.18 Mistake may reopen a satisfaction.19 One party cannot defeat an appeal by entering satisfaction of record.20 An interlocutory order cannot be reviewed after it is materially changed.21 Under a statute providing that causes of action for personal injuries shall survive when the plaintiff obtains judgment, but dies pending appeal, in which the judgment is reversed, an appeal is impliedly given to the defendant in case the plaintiff dies before the appeal is perfected.22 A stay until revival, and not a loss of the right of review, is the effect of death of the adversary after judgment.23 27 Obedience to an order waives the right to a review;24 but the intention must be clear,25 as where judgment is voluntarily paid,26 and payment accepted. Parties so paying a judgment may reserve the right of review. 28 6. Hawkins v. Burwell, 191 Ill. 389. Act providing no appeal may be valid if certiorari lies-State v. Com'rs, 87 Minn. 325. 7. Appeal not a "suit instituted" within a saving clause-Lake Erie & W. R. Co. v. Watkins, 157 Ind. 600. 8. Legislature may regulate but not give or destroy the right (Const. art. 8, §§ 2, 3) -Finlen v. Heinze (Mont.) 69 Pac. 829. man (Ky.) 68 S. W. 1100. Appeal from judgment on demurrer after defects have been cured by pleading over-Wirth v. Wirth, 181 Mass. 541. An administrator may continue an appeal from divorce and alimonyCoffman v. Finney, 65 Ohio St. 61, 55 L. R. A. 794. Satisfaction of the judgment extinguishes the right-Klinkle V. McClintock (Iowa) 93 N. W. 86. Contra.-Shannon v. 9. Eminent domain proceedings-Maul- | Padgett, 24 Ky. Law Rep. 1281. din v. Greenville, 64 S. C. 444. See, also, post, § 11, as to want of interest 10. Lake Erie & W. R. Co. v. Watkins, as ground for dismissal. 157 Ind. 600. 11. Ins. Co. of N. A. v. Schall, 96 Md. 225. 12. Lake Erie & W. R. Co. v. Watkins, 157 Ind. 600. 17. Territory v. Cooper, 11 Okl. 699, 69 Pac. 813. 18. Duggan v. Smith, 27 Wash. 702, 68 Pac. 356. 19. Judgment omitted interest-Jackson 20. MacEvitt v. Maass, 64 App. Div. (N. Y.) 382. 21. Interlocutory injunction-Sharples v. Baker, 100 Ill. App. 108. 22. Transcript was not yet filed when plaintiff died-Western Union Tel. Co. V. Adams, 28 Ind. App. 420. 13. See post, § 3, "Persons entitled." 14. Participating in new trial-Geraghty v. Brockton, 182 Mass. 26. v. Randall (Colo. App.) 70 Pac. 767. Not waived by asking for entry of judgment on the verdict after being refused a new trial -Carlson v. Benton (Neb.) 92 N. W. 600. Original order of injunction not appealable after parties have proceeded and it has been materially modified on pleadings-Sharples v. Baker, 100 Ill. App. 108. Mortgagee may appeal from condemnation proceedings 24. Order to elect-Morris v. Wofford, 114 though he also claims against fee owner-Ga. Omaha Bridge Co. v. Reed (Neb.) 92 N. W. Knight v. Hirboun, 64 Kan. 563, 67 Pac. 1104. 1021. State v. Maloney, 108 Tenn. 82. Obeying 15. Ayers v. Polsdorfer, 187 U. S. 585. mandamus after appealing-Campbell V. 16. Appeal from temporary injunction fails Hall, 28 Wash. 626, 69 Pac. 12; Betts v. by final determination of the controversy-State (Neb.) 93 N. W. 167. Wallace v. Deane (Idaho) 69 Pac. 62. Ap- 25. O'Rourke V. New Orleans, 106 La. 23. Barton v. New Haven, 74 Conn. 729. peal from action to enforce judgment fails 313. by reversal of the judgment-McGill v. Bart- 26. 935. Mandatory injunction obeyed Cowell v. Gregory, 130 N. C. 80. de Enforcement of a judgment affirms it.29 So, too, adopting it; as if one accepts costs imposed as a condition to an order for the other's relief.30 Thus a judgment for possession of land may be adopted by harvesting a crop thereon, though a condition remains unperformed; but merely urging a proceeding and decision therein as ground for some action by the court in other litigation does not.32 The right of appeal is not waived by scheduling the judgment in bankruptcy. Neither does availing of one kind of relief granted prevent appeal for error in refusing complete relief.34 33 Acceptance of benefits will show a waiver unless the rights to them are absolute, so that an appeal could work no change. 36 Waiving an appeal carries with it appeal from a dependent proceeding. The right to appeal from a provisional order is not waived by going to trial on the main case on changed issues.37 A right to review an order is not lost by failing to appeal a former order denying the same relief, or failing to move sooner.39 38 Agreement to terms of judgment waives an appeal," but an agreement for trial of a cause does not relinquish the right to review because it does not in terms reserve a right of exception."1 .43 Successive orders or reviews.—A person who exercises one concurrent right of appeal is deprived of the other.12 Appellant cannot dismiss his appeal, and reenter another in the same case; and an appellant from the appointment of guardian, who was nonsuited for failure to appear, and made no attempt to sustain his appeal, cannot take a further appeal." The right is not necessarily lost by prosecuting a different form of review proceeding unsuccessfully; but an unsuccessful appellant to an intermediate court cannot bring error from the trial court to the court of last resort. There must be the elements of an election, or the judg 46 628. 47 92 N. W. 204; Dakota County v. Borowsky (Neb.) 93 N. W. 686. 36. Acquiescing in the dismissal of mandamus as against a principal officer destroys the right to appeal from the order as affecting a subordinate for incidental reliefEvans v. United States, 19 App. D. C. 202. Appealability of release of sureties is waived by consent to dissolution of injunction for which bond was given-Kraeger v. Warnock, 114 N. Y. St. Rep. 687. 37. Temporary injunction-Stewart Pierce, 116 Iowa, 733. 38. For injunction Ditch, 107 La. 333. bond-Sanders V. V. 39. Delaying two years to move against an order allowing counsel fees for probating will does not defeat right to appeal from orphans' court's order refusing to vacate 33. Bennett v. Bennett, 23 Ky. Law Rep. such order-Hamilton v Shillington, 19 App. 1281. 34. Judgment set aside conveyances but did not fully adjudge property rightsMilam v. Hill (Tex. Civ. App.) 69 S. W. 447. 35. Easton v. Lockhart (N. D.) 89 N. W. 75. Trapp v. Off, 194 Ill. 287, holds it a release of errors. Ballinger v. Connecticut Mut. Life Ins. Co. (Iowa) 91 N. W. 767, in which case a stipulation as to amount of an attorney's fee had made uncertain the net amount recoverable after deducting "expense of collection." Retaining costs paid as a condition of opening default-Lounsbery v. Erickson (S. D.) 92 N. W. 1071. Acceptance of public warrant for part waives appeal from disallowance of the remainder of a claim-Weston v. Falk (Neb.) D. C. 268. 40. 41. 42. 43. 44. West v. West, 23 Ky. Law Rep. 1645. Ball v. Wright, 115 Ga. 729. Bergkofski v. Ruzofski, 74 Conn. 204. Da Costa v. Dibble (Fla.) 33 So. 466. He did not rest his case nor move to open the nonsuit-Appeal of White (Conn.) 53 Atl. 582. 45. Writ of error allowed after dismissal of appeal-Burdick v. Security Life Ass'n, 91 Mo. App. 529; Reed v. Kimsey, 98 Ill. App. 364. Certiorari conclusive of jurisdiction only; therefore no election-Porter v. Butterfield, 116 Iowa, 725. 46. Platte Land Co. v. Hubbard (Colo.) 69 Pac. 514. 47. Certiorari and appeal-Furman V. Motley, 67 N. J. Law, 174. 48 ment on review must be final, to destroy the right to further review. The opposite party may bring error after an appeal if the review was only partial," if he has assigned no cross-errors.50 A loss of the right to review an order nisi by adoption and affirmance draws with it the right to appeal from an absolute order which follows.51 C. Pendency of a former appeal is ground for dismissal of a second, unless the appeals are from determinations which lack identity.58 57 54 § 2. The remedy for obtaining review. A. Appeal or error.-An action for violating an ordinance being civil, and not criminal, is reviewable only as other civil actions. Federal courts review decrees by appeal, judgments by error;56 and this is the general rule, though in some states error lies concurrently with appeal to the final decree or order,58 and to some judgments error is a statutory mode of review.59 In Illinois a chancery decree is reviewable in the trial court either by rehearing or bill of review, and in appellate courts either by appeal or error.60 Only errors of law will be reviewed on a petition in error, and an appeal will not reach such matters.61 For error on a trial in equity in Nebraska, error, and not appeal, is the remedy.62 Error, and not appeal, is the remedy in Colorado of one who recovers judgment, but is dissatisfied with the relief given. To be appealable it must adjudge something against appellant. Those cases which in Missouri are reviewable without final judgment must be reviewed by appeal. In Illinois, writ of error will lie to an invalid decree appointing conservators of insane persons, though there is also an appeal to the circuit court. It makes no difference that parties agreed to try the cause on the wrong side of the court.67 If it be doubtful which is right, both methods may be pursued, and the reviewing court will follow the correct procedure. Appeal will lie to a certiorari improperly begun. A writ of error will lie to a court of record to review a decision for which no statu 68 64 63 65 69 48. Appeal and writ of error-Harburg is equitable (Code Civ. Proc. § 675)-Williams v. Arnold, 87 Mo. App. 226. Judgment on v. Miles, 63 Neb. 859. procedendo-Johnson v. Murphy, 107 Tenn. 58. Bannard v. Duncan (Neb.) 90 N. W. 947. 59. To Judgments in the supreme court under the Railroad Tax Act, § 28, error lies-State v. Erie R. Co. (N. J. Err. & App.) 50 Atl. 918. 558. 51. 52. Swortfiguer v. White, 134 Cal. xx., 66 Pac. 80. 53. Two applications for two different railway locations-Appeal of Cherryfield & M. E. R. Co., 95 Me. 361. To different parts of transaction-State v. Tolman, 106 La. 662. 54. How to proceed, see post, §§ 4-11. 55. Appeal and not error-Madison Horner (S. D.) 89 N. W. 474. V. 56. Highland Boy Min. Co. v. Strickley (C. C. A.) 116 Fed. 852. 57. Uecker v. Magdanz, 62 Neb. 618; Van Doren v. Empkic-Shugart Co. (Neb.) 90 N. W. 220. In New Jersey circuit court judgments are open to error only-Morse V. State (N. J. Law) 53 Atl. 693. Proceeding to disconnect land from municipality is at law-Heebner v. Orange City (Fla.) 32 So. 879. Executor's application to sell land is at law and not in equity-In re Entenmann (Neb.) 89 N. W. 1033. Mandamus is at law--Jabine v. Oates, 115 Fed. 861. Error lies to judgment in eminent domainDenver Power Co. v. Denver & R. G. R. Co. (Colo.) 69 Pac. 568. A proceeding before a probate court to open a decree of probate 60. Mathias v. Mathias, 104 Ill. App. 344. 61. Hume v. U. S. (C. C. A.) 118 Fed. 689. Denial of leave to amend-Reiss v. Argubright (Neb.) 92 N. W. 985. Exclusion of evidence-Kinney v. Bittinger (Neb.) 92 N. W. 1005. Right to jury trial of an issue of fact-Day & Frees Lumber Co. v. Bixby (Neb.) 93 N. W. 688. Admitting or excluding evidence-Hillers v. Yeiser (Neb.) 93 N. W. 989. 62. Browne v. Palmer (Neb.) 92 N. W. Patrick, v. Morrow (Colo. App.) 70 315. 64. Colorado Fuel & Iron Co. v. Knudson (Colo. App.) 70 Pac. 698. 65. Rev. St. 1899. § 806; Pittsburgh Plate Glass Co. v. Peper (Mo. App.) 70 S. W. 910. CG. Haines v. Cearlock, 95 Ill. App. 203. 67. Hooven, Owens & Rentschler Co. v. John Featherstone's Sons (C. C. A.) 111 Fed. 81, 49 C. C. A. 229, holding that enforcement by foreclosure of mechanic's lien is in equity. 68. Appeal and error-Hooven, Owens & Rentschler Co. v. John Featherstone's Sons (C. C. A.) 111 Fed. 81, 49 C. C. A. 229. 09. People v. Feitner, 65 App. Div. (N. Y.) 24. tory mode of appeal is given." Error should be brought where for some reason the party injured by a judgment has been unable to avail of his primary statutory remedy by appeal." Error will not review an order not final. Since a voluntary nonsuit is in defendant's favor, he cannot appeal, but error will lie." Error lies to review nonsuit or dismissal as to part of defendants." B. Certificate or reservation."-Not cases, but questions of law, may be certified by the circuit court of appeals to the supreme court,76 and only when they present a distinct legal proposition separated from the mass of the record;" and the question must be one upon which the circuit judges are doubtful or desire instruction.T Mixed questions are not "questions of law" which may be reserved or certified." The Massachusetts superior court may report a decision coming from the registration court, though the latter may also do so direct.80 C. Ordinary or extraordinary and special modes of review.-Statutory remedies, as appeal or error, must, if adequate or applicable, be resorted to, and not certiorari or writ of review,"1 or supervisory control,82 or prohibition, though prohibition may 70. Decision of county court on apportionment of property on division of townsJamaica v. Vance, 96 Ill. App. 598. 71. Want of notice-Haines v. Cearlock, 95 Ill. App. 203. 83 trict Ct. (Mont.).70 Pac. 516; nor are rulings sustaining objections to introduction of evidence on the ground that the complaint stated no cause of action dismissing it, discharging jury and entering judgment-State v. District Ct. (Mont.) 70 Pac. 981. Judgment in favor of materialman against owner Florence & C. C. R. Co. v. Maloney reviewable by appeal and not by writ of re(Colo. App.) 69 Pac 270. view-Weldon v. Superior Ct., 138 Cal. 427, 72. J. L. Gates Land Co. v. Olds, 112 Wis. 268. 73. 74. Ellis v. Almand, 115 Ga. 333; Johnson 71 Pac. 502. Appeal lies from district court v. Porter, 115 Ga. 401. 75. Courts may also specially order matters to be included in bills of exceptions, thus reserving questions which would not otherwise go up. See post, 9. judgment on appeal from mayor's courtState v. Miller (La.) 33 So. 739. Motion to postpone disbarment proceedings for absence of witnesses and shortness of time is reviewable on appeal-State v. District Ct. 76. German Ins. Co. v. Hearne (C. C. A.) | (Mont.) 71 Pac. 159. 118 Fed. 134. 77. Felsenheld v. U. S., 186 U. S. 126. Certiorari is proper to review lunacy proceedings-State v. Jackson, 93 Mo. App. 516. viewed in inquisition of lunacy, because no 78. German Ins. Co. v. Hearne (C. C. A.) In Pennsylvania, the merits cannot be re118 Fed. 134. Burns' Rev. St. 1901, § 642-Lautman way is provided to bring the evidence into v. Miller, 158 Ind. 382. 79. the record, the review being by certiorariSnow, 180 Commonwealth v. Harrold (Pa.) 53 Atl. 760. 82. Denial of survey and inspection of mining claim-State v. District Ct., 26 Mont. 274, 67 Pac. 625. Mass. 411. 83. In re Huguley Mfg. Co., 184 U. S. 297; Johnston v. Hunter, 50 W. Va. 52. Appeal pending from injunction against enforcement of ordinance-People v. District Ct., 29 Colo. 1, 66 Pac. 888. New trial in violation of mandate on reversal; appeal lies-King v. Doolittle, 51 W. Va. 91. Removal of police commissioners--People v. Sherman, 171 N. Y. 684; affirming 66 App. Div. 231. Review of special assessment appeal lies-People v. McCue, 74 App. Div. (N. Y.) 302. Errors curable by nunc pro tunc entry which will be appealable-Wand v. Ryan, 166 Mo. 646. Want of jurisdiction assailable by certiorari-People v. De France, 29 Colo. 309, 68 Pac. 267. Error on motion for change of venue not reviewable by prohibition-People v. District Ct. (Colo.) 71 Pac. 388. Action of lower court on appeal from county commissioners is reviewable by appeal and not prohibition-State v. Neal, 30 Wash. 702, 71 Pac. 647. Proceedings on application for distribution of an estate reviewable by appeal and not prohibition-State v. Superior Ct., 30 Wash. 700, 71 Pac. 648. Judgment im lie concurrently with appeal if jurisdiction is totally divested," or if irreparable injury would follow a resort to appeal or error.85 An appeal is not inadequate merely because expensive, dilatory, and annoying. Like rules apply to mandamus,87 which does not lie to review judicial acts.88 90 86 Mandamus, not appeal or error, is the remedy for refusal to settle a bill of exceptions. If the refusal of the district court to dismiss an appeal for insufficiency of the bond be complained of, an order refusing to dismiss should be appealed, or mandamus brought to increase the bond."1 93 Suspension of an attorney with application or notice is open to a "writ of review" or certiorari.92 The provision that one of the class of actions over which the circuit court of appeals has final jurisdiction may be brought to the supreme court "by certiorari or otherwise" means by other proceeding of the same kind as certiorari; hence it excludes appeal. To review an unjust judgment, appeal from which has been prevented by the adversary, certiorari, if applicable, and not injunction, is the remedy; but injunction may issue instead of appealing if jurisdiction has failed. An order or judgment will not be controlled by injunction if appeal or error afford a remedy, nor nullified by habeas corpus if otherwise reviewable or adequately remediable." Especially will it be seldom done if the action of a state court is thus brought to a federal court.98 Proceedings of the district court as distinguished from those of the judge under the Chinese exclusion act, being appealable, are not reviewable by this remedy." 95 96 Concurrent modes of review may present an election.1 Appeal may lie in the posing penalty for contempt by error and not by prohibition-Aichele V. Johnson (Colo.) 71 Pac. 367. titles either party to entry of judgment which may be reviewed on error, hence mandamus to compel vacation of dismissal 84. By change of venue-People v. Dis- is wrong-Detroit, G. R. & W. R. Co. v. trict Ct. (Colo.) 69 Pac. 597. 85. Exposure of manner in which voters voted at election in controversy-State v. Spencer, 166 Mo. 271. Receivership proceedings, appeal too slow-Gates v. McGee, 15 S. D. 247. 86. State v. Superior Ct., 30 Wash. 700, 71 Pac. 648. Error in taking jurisdiction is reviewable by appeal, not prohibition-State v. Superior Ct. (Wash.) 71 Pac. 722. Eaton Cir. Judge, 128 Mich. 495. v. Interlocutory vacation of dismissal, not appealable-Ex parte Jones, 133 Ala. 212. Appeal from commitment for contempt too slow-Dillon Shiawassee Cir. Judge (Mich.) 91 N. W. 1029. Appeal and not mandamus is the remedy where a court decides that the complaint states no cause of action, discharges the jury and enters judgment for defendant-State v. District Ct. (Mont.) 70 Pac. 981. 88. See Mandamus. 90. Williamson v. Joyce, 137 Cal. 151, 69 Pac. 980; Hartford L. & A. Ins. Co. v. Rossiter, 196 Ill. 277; affirming 98 Ill. App. 11. 91. Metropolitan Bank v. Blaise (La.) 33 So. 95. 87. Remedy by appeal-In re Huguley Mfg. Co., 184 U. S. 297, 46 Law. Ed. 549. Code Civ. Proc. § 646-State v. Westover (Neb.) 89 N. W. 1002. Refusal to issue commission to take testimony-State v. Judge Civil District Ct., 107 La. 474. Order in contempt against contumacious juror-Ponpard V. Frazer (Mich.) 89 N. W. 577. Justice's or- 92. McNamee v. Steele (Idaho) 69 Pac. der dismissing garnishment against corpo- 319. ration (Comp. Laws, §§ 1014, 1018)-Hyde 93. Act of Congress, March 3, 1891, c. 517, v. Chadwick (Mich.) 90 N. W. 333. Striking § 6-Hugby Mfg. Co. v. Galeton Mills, 184 scandalous affidavits and refusing new trial U. S. 290, 46 Law. Ed. 546. thereupon-State v. District Ct., 26 Mont. 372, 68 Pac. 465. Vacation of order for new trial-State v. Westover (Neb.) 89 N. W. 1002. Refusal to revoke probate-State v. Tallman, 29 Wash. 317, 69 Pac. 1101. Application of lunatic to be declared sane-Aldrich v. Superior Ct., 135 Cal. 12, 66 Pac. 846. Denial of motion to compel clerk to reinstate cause-Southern R. Co. v. Walker, 132 Ala. 62. Mandamus will not lie if error or appeal is appropriate-State v. Jessen (Neb.) 92 N. W. 584. Mandamus will not lie to correct errors of fact by a board of equalization sitting in review of assessments-State v. Savage (Neb.) 91 N. W. 716. Dismissal of appeal on court's motion en 9-4. 95. Chapman v. Kane, 97 Ill. App. 567. Judgment on new trial granted without notice-Smith v. Carroll (Tex. Civ. App.) 66 S. W. 863. 96. Enforcement of ordinance, appeal lies-Boin v. Jennings, 107 La. 410. Injunction not available to one who failed to appeal-Kyle v. Richardson (Tex. Civ. App.) 71 S. W. 399. Injunction may lie if because there is no right of appeal plaintiff would be remediless-Board of Com'rs v. Spangler (Ind.) 65 N. E. 743. 97. In re Lewis, 114 Fed. 963; but see Ex parte Green, 114 Fed. 959. 98. 99. Storti v. Massachusetts, 183 U. S. 138. |