same cause wherein certiorari has been brought, being for the review of different matters. The remedy by motion to vacate may sometimes concur with appeal.

Judgment for demurrant to a petition to vacate an order in bankruptcy is reviewable by petition under section 24b of the bankruptcy act, and not by appeal under section 25.1

If a cause has been improperly brought to the circuit court of appeals on error, certiorari will issue from the supreme court." Prohibition in similar cases must issue before the court below is concluded by the judgment's becoming final. If a court, in refusing to remand a cause, acts within its jurisdiction, certiorari will not lie, though the court making the transfer did exceed its jurisdiction."

9

§ 3. The parties. A. Persons entitled to take up the cause.--No person can obtain a review unless he has a legal interest which is affected. An interpleading party who has been dismissed cannot appeal the main cause. If a partner of an attachment debtor intervene to claim property for the firm, and it be decided against his claim, he may appeal.10 An intervening stockholder of an original party is a third party, and may appeal from a dismissal of his petition, though he fails to make his corporation a party." A successful party may appeal if there was no jurisdiction.12 Any person interested and aggrieved may appeal from a proceeding not inter partes, especially in probate and administration orders.13

Plaintiff cannot say that a defendant whom he sued lacks an appealable interest. A mere lien, as that of an attorney, on a judgment, is not an appealable interest; but a lien on the subject-matter of the judgment is.10

An appeal by the head of an executive department of a municipality is equivalent to an appeal by the municipality." A public officer who is agent for transaction of legal business may appeal without special authorization.18 A municipality which has no standing to oppose confirmation of a special assessment cannot, for lack of grievance, appeal from a refusal to confirm. An action for penalties being civil, the state may appeal.20

2.

3.

Porter v. Butterfield, 116 Iowa, 725. Order for final settlement made without notice to co-executor may be attacked by motion in orphans' court to set aside as well as by appeal-Yakel v. Yakel, 96 Md. 240.

4.

5.

237.

6.

1008.

16.

In re Ives (C. C. A.) 113 Fed. 911.
Security Trust Co. v. Dent, 187 U. S.

19

13. Probate or refusal thereof-In re Cartright's Will (N. J. Eq.) 51 Atl. 713. Trustees of a cemetery in which a vault was to be built and who were to take a legacy upon a trust in case the legatee should die, have no interest to appeal from a refusal of probate-People v. McCormick, 201 I11. 310. Board of medical examiners if aggrieved by decision of district court on ap

Klingelhoefer v. Smith (Mo.) 71 S. W. peal from their action on application for a

7. State v. Circuit Court (Wis.) 93 N. W.

8. If neither a party nor a privy the record must show interest-J. L. Gates Land Co. v. Olds, 112 Wis. 268. Must be party to suit or judgment-Carlson v. Gilbert, 99 Ill. App. 574; Ackerman v. People, Id. 576. Voluntary appearance and answer recognized by court suffices-Richey v. Guild, 99 Ill. App. 451. Abstract questions not heardMcComb v. Title & Trust Co. (N. Y.) 36 Misc. 370.

Foreclosure decree setting aside a conveyance and revesting title in an intermédiate grantee, who assumed the mortgage, does not aggrieve the original mortgagorGandy v. Coleman, 196 Ill. 189.

9. Warner v. Crandall, 88 Mo. App. 321. 10. Hopkins v. Prichard, 51 W. Va. 385. 11. Massey v. Louque (La.) 33 So. 764; White v. Louque, Id.

license, may appeal to supreme court-State v. District Court (Mont.) 69 Pac. 710. Heirs can appeal decree to sell lands-Kronenberger v. Heineman, 104 Ill. App. 156. Comp. St. c. 20, § 42, surviving husband of deceased wife has interest in accounting of administrator who collected rents of land in which husband had life estate-In re Gannon's Estate (Neb.) 89 N. W. 1028; Gannon v. Phelan, Id.

Probate surety cannot appeal from final settlement-Shaw v. Humphrey, 96 Me. 397. 14. State v. Cranney (Wash.) 71 Pac. 50. 15. Attorney for deceased plaintiff-Barton v. New Haven, 74 Conn. 729.

16. Mortgagee of lands condemnedOmaha Bridge Co. v. Reed (Neb.) 92 N. W.

1021.

17.

People v. Sturgis (N. Y.) 30 Misc. 596. Township supervisor-Long v. Ionia Probate Judge (Mich.) 89 N. W. 938.

18.

19. Construing Yonkers Charter, tit. 7, §

12. Libelant in divorce-English v. Eng- 10, 11-In re Nepperhan St. in Yonkers (N. lish, 19 Pa. Super. Ct. 586.

Y.) 71 App. Div. 534.

Representatives or trustees are not aggrieved by orders which simply adjust rights of contending beneficiaries.21 An individual is not aggrieved by a judgment affecting him in a representative capacity.22 An executor is aggrieved by refusal to probate a codicil,23 or by an order directing an account.24 A receiver's personal interest goes only to compensation and reimbursement ;25 but a trustee appointed simply to make sale in partition may appeal if by any means he becomes subjected to the jurisdiction of the court and rendered liable." A statutory guardian cannot appeal or review a decision on terms of a compromise made by the guardian ad litem.27

Order compelling a witness to answer questions on a commission," adjudging against a disclaiming party,29 or sustaining demurrer to an intervening co-defendant's plea which would abate the action,30 aggrieves the witness, the disclaimant, and the defendant, respectively. An answering defendant alleged to be a coowner with plaintiff is interested to appeal from the striking of a partition complaint. Opening a decree settling titles and deciding adversely after the successful party has sold and taken a mortgage affects his lien, and he may appeal.32 No one who is not restrained can appeal from an injunction.33

31

34

If in default, a party cannot appeal, even against a co-party, except to attack jurisdictional defects. A plaintiff is in default if he allows his action to lapse; but failure to plead over after demurrer is not a default.37

Though not record parties, persons claiming as representatives may appeal." A covenantor for title called in to defend has the right, though he defends in the covenantee's name;39 but a mortgagee, not party, whose right is prior to the beginning of ejectment against the mortgagor is not affected.40

B. Necessary or proper parties to be joined or brought in."-There must be an appellee;42 and if, by death of a party and failure to substitute a personal representative, there is none, jurisdiction fails.""

Co-parties need not appeal or join where "any person who considers himself aggrieved" may appeal as of right." One named as a co-defendant, but never

20. State v. Waters-Pierce Oil Co. (Tex. Civ. App.) 67 S. W. 1057.

21. Taxation of costs to one of several funds of the estate-Grabill v. Plummer, 95 Md. 56. Decree which applies a property to the claim of a particular creditor excluding the others-Chinn v. Curtis, 24 Ky. Law Rep. 1563.

22. An executor-State v. District Ct., 26 Mont. 369, 68 Pac. 856.

23. In re Stapleton's Will (N. Y.) 71 App. Div. 1.

N.

Y.

646. Co-defendants-Lexington Home Const. Co., 23 Ky. Law Rep. 1387.

35. Failure of attachment writ to state cause of action-Cline v. Patterson, 191 Ill. 246. Default judgment after improper refusal to transfer cause to another districtGoldman v. Jacobs (N. Y.) 38 Misc. 781.

36. Action to try validity of will-Delmar v. Delmar (N. Y.) 65 App. Div. 582. Eminent domain proceeding-Florida, C. & P. R. Co. v. Bear (Fla.) 31 So. 287.

37. People v. Manhattan R. E. & L. Co.

24. Tillinghast v. Brown University (R. (N. Y.) 74 App. Div. 535. I.) 52 Atl. 891.

25.

26.

27.

28.

343.

29.

Sutton v. Weber, 100 Ill. App. 360.
Arnold v. Carter, 19 App. D. C. 259.
Elder v. Adams, 180 Mass. 303.

In re Dittman (N. Y.) 65 App. Div.

Stearns Ranchos Co. v. McDowell, 134 Cal. 562. 66 Pac. 722.

30. Both claimed rights in maintenance of a dam, because of defect in parties-Castle v. Madison, 113 Wis. 346.

31. Younger v. Superior Ct., 136 Cal. 682, 69 Pac. 485.

32. Hackleman v. Hackleman, 199 Ill. 84. 33. Stearns-Roger Mfg. Co. v. Brown (C. C. A.) 114 Fed. 939; Portland G. M. Co. v. Brown, Id.

38. Executrix succeeding temporary administrators-Kidd v. Morris, 127 Ala. 393. 39. Covenantee who was nominal appellant sought to dismiss-Ladd v. Kuhn, 27 Ind. App. 535.

40. J. L. Gates Land Co. v. Olds, 112 Wis. 268.

41. Mode of impleading parties, see post, § 6,-"Applications," etc.

Amending as to parties, and substitutions, see post, § 11,-"Amendments of parties." 42. In re Hurst Home Ins. Co., 23 Ky. Law Rep. 940.

43. Barton v. New Haven, 74 Conn. 729. 44. Appeal under Rev. St. art. 2789, from refusal to appoint appellant as guardian, sureties for costs did not appeal-Arthur v.

34. Henderson Hull & Co. v. McNally, 168 Reed, 26 Tex. Civ. App. 574.

45

served or brought, need not join in the appeal, though a necessary party to the action. Licensee of patent may appeal in patent case without the patentee." Defaulting defendants need not be joined with appellees who answered." Under statutes permitting part of co-parties to appeal in the names of all, all must be joined, or at least named as appellants." Co-defendants may unite as on original action if the judgment be on a cross complaint.50 Persons who were heard to plead or demur are parties.51 Defect of parties is not cured by the fact that on an independent appeal they are impleaded.52

53

In Indiana, vacation appeals must bring in all parties, though different kinds of relief be granted, and one party be not affected. The statute does not require it in term-time appeals."

67

All the parties who may be affected by a reversal should be brought in,56 in order to give jurisdiction. All joint defendants must be brought in, or else a severance of interest in the judgment must appear on record.58 If the success of an appeal may leave too large a judgment standing against a co-party, he should have notice of the appeal to bring him in.5" A co-beneficiary of a deed has an interest which makes him a necessary party if the deed is to be set aside." A receiver is necessarily affected by writ of error to a judgment settling his final report. All who by a supplemental pleading stand as adverse to appellant must be made appellees to an appeal from a dismissal of it as a whole. Attorneys for poor persons accused of crime are the adverse parties who must be cited when the county appeals from an allowance of fees to such attorneys."

63

62

Proper parties. An administrator cannot have a person to whom money was paid made party on appeal from an accounting in order to have judgment against him in case of disallowance."

64

Successors in title and interest and substituted parties.-A personal representative has sufficient title to bring error without a revival of the judgment,65 but, if the interest be one which passes to heirs, the revival should be in their

45. Hooven, Owens & Rentschler Co. v. party-Massie v. Louque (La.) 33 So. 764; John Featherstone's Sons (C. C. A.) 111 Fed 81.

46. Latter refused to appeal-Excelsior Pipe Co. v. Seattle (C. C. A.) 117 Fed. 140. 47. Kaufmann v. Preston, 158 Ind. 361. 48. 3 Starr & C. 1896, p. 3099, § 70-Cooke v. Cooke, 194 III. 225.

White V. Louque, Id. Mortgagor against whom deficiency is awarded must be made party to appeal by lienor claiming above the mortgage, though after he be adjudged bankrupt-T. C. Power & Bro. v. Murphy, 26 Mont. 387, 68 Pac. 411.

Unaffected ones may be omitted--Coler v. 49. Burns' Rev. St. 1901, § 647, allows part Allen (C. C. A.) 114 Fed. 609. Disclaiming to appeal; held not sufficient to join others parties not necessary or proper-Smalley v. as appellees in assignment of errors-Smith | Laugenour (Wash.) 70 Pac. 786. v. Fair..eld. 157 Ind. 491. 57. Willits v. Harlan County (Neb.) 90 N

50. Downing v. Rademacher, 136 Cal. 673, W. 656. 69 Pac. 415.

51.

Commissioners in suit against sheriff -Small v. Edwards, 65 Kan. 858, 69 Pac. 165. Voluntary appearance and answer permitted -Richey v. Guild. 99 Ill. App. 451.

52. Collateral appeals from foreclosure of Ben-Hall v. New York. 79 App. Div. 102. 53. Burns' Rev. St. 1901, § 647-Brown v. Sivan, 158 Ind. 224.

54. Mellott v. Messmore, 158 Ind. 297. 53. Burns' Rev. St. 1901, § 647a-Gunn v. Haworth (Ind.) 64 N. E. 911.

56. Schrage v. McCoy, 28 Ind. App. 434; Moyer v. Badger Lumber Co., 64 Kan. 885, 67 Pac. 852.

On appeal from confirmation of sale, the purchasers should be brought in-Phillips v. Keel, 24 Ky. Law Rep. 1752. On foreclosure of sale of land by assignee of the notes the vendor if held as a warrantor has such an interest as to make him a necessary

Fitzpatrick v. Graham (C. C. A.) 119

58.
Fed. 353.

59. Appellant was the co-party's grantee and sought to establish a deficiency in acreage, which would have lessened the Coparty's liability for purchase money-Clay ton v. Sievertsen, 115 Iowa. 687.

60. Arnett v. McGuire, 23 Ky. Law Rep.

2319.

61.

62.

Haigh v. Carroll, 197 Ill. 193.

Kreuter V. English Lake Land Co. (Ind.) 65 N. E. 4.

63. Green Lake County v. Waupaca County. 113 Wis. 425.

61. James v. Craighead (Tex. Civ. App.) 69 S. W. 241.

65. Haines v. Cearlock, 95 Ill. App. 203. Personal representative may continue appeal from divorce decree and grant of alimony after death of both parties-Coffman v. Finney, 65 Ohio St. 61, 55 L. R. A. 794.

66

69

67

names. If administration is unnecessary, and the heirs are brought in, failure to substitute an administrator of a deceased party does not vitiate jurisdiction."" The administrator of a receiver should be substituted when the appeal concerns personalty in his hands. When the plaintiff in a personal injury case has died before the transcript is filed, the appeal is perfected in Indiana by substituting the personal representative as appellee and serving him with notice of appeal. It is not necessary to bring in transferees pendente lite if no abatement thereby results;70 nor to make a substitution for one who dies pending appeal." Therefore, on the death of a co-plaintiff in error, the right to reverse an erroneous judgment is in the survivors;72 but there must be an adversary in court either by appearance or substitution.78

An

§ 4. Adjudications which may be reviewed. A. Statutes and legislation.The appealability of a judgment may be retroactively changed or destroyed." act taking away jurisdiction of certain judgments will operate on all those subsequently rendered, but a further provision that it shall apply to all causes pending in inferior courts at the time does not make it retroact on judgments already rendered and subject to review ;7 but an act repealing a restrictive act does not, ipso facto, give jurisdiction to review judgments which, being rendered while the earlier act was in force, were not at the time reviewable." Provisions allowing the legislature to limit and regulate the appellate jurisdiction given by the constitution should not be construed to authorize the destruction of the right of appeal.78

B. Dependent on the general form or the character of the adjudication. 1. Nature of decision in general.-Nonjudicial acts and ministerial orders are not reviewable, and hence "action or suit" which is appealable does not include a proceeding to obtain a vessel license from the district court of Alaska.81 Nor can

80

an act be reviewed which is for the judge, and not for the court. 82 The action of a justice cannot be reviewed under a statute giving an appeal from decisions of a court. A pro forma decree without reference to the merits, but to allow the case to go up, will not be reviewed.84 A futile review will not be made.

88

66. Urlau v. Weeth (Neb.) 89 N. W. 427. 67. Applied where guardian died pending appeal from settlement of his accountMagness v. Berry (Tex. Civ. App.) 69 S. W. 987.

The act repealing the right to appeal from the opening of a default in a municipal court is operative only as to actions subsequently commenced (Laws 1902, c. 580, §§ 257, 261)-Johnson v. Manning, 114 N. Y.

68. State v. German Exch. Bank, 114 Wis. St. Rep. 738. 436.

69. Western Union Tel. Co. v. Adams, 28 Ird. App. 420.

70. Code, 3476-Emerson v. Miller, 115 Iowa, 315.

76. Act May 12, 1902. limiting jurisdiction of supreme court-Gompf v. Wolfinger (Ohio) 65 N. E. 878.

77. Act Oct. 22, 1902, repealing Act May 12, 1902-Gompf v. Wolfinger (Ohio) 65 N.

71. Code. 4150-Williams v. Williams, E. 878. 115 Iowa, 520.

72. Administrator need not be brought in -Jameson v. Bartlett, 63 Neb. 638, holding that the "right of action" which survives under Code Civ. Pr. § 456, is the right to re

versa

73. Barton v. New Haven, 74 Conn. 729. 75. Statutes may retroactively take away appeal (Act March 12, 1901, § 6)-Fitch v. Long (Ind. App.) 64 N. E. 622. Act March 12, 1901, took away right to appeals from justice's court which were not perfected until after the act, though the judgment was rendered and appeal taken before-Southern Indiana R. Co. v. Thompson, 27 Ind. App. 867. Right of appeal from judgment of court of claims was taken away by the Act of Congress, March 3, 1897, c. 387, though appeal had already been made and notice given -District of Columbia v. Eslin, 183 U. S. 62.

78. Const. art. 8, § 3-Finlen v. Heinze (Mont.) 70 Pac. 517.

79. Refusal by collector to permit transit of Chinese-Fok Yung Yo v. U. S., 185 U. S. 296.

80. Proceeding by probate court under 94 Ohio Laws, pp. 332, 333-Casper v. Norris, 23 Ohio Cir. Ct. 119. Grant or refusal of liquor license is quasi-judicial and appealableState v. Alliance (Neb.) 91 N. W. 387.

81. Pacific Steam Whaling Co. v. Ua S., 187 U. S. 447.

82. Appointment of a notary-Steinheimer v. Jones, 114 Ga. 349.

83. Denial of certiorari-Inhabitants of Brockton v. Plymouth County Com'rs (Mass.) 66 N. E. 427. Error does not lie from judgment of supreme justice in habeas corpus to supreme court-Ex parte Cox (Fla.) 33 So. 509.

89

The judgment must have been completed or perfected, as well as decision announced. The clerk's filing indorsement is equivalent to entry.87 It must in terms of certainty finally determine the rights. An equity decree, filed with opinion findings and requests, is nisi until exceptions are heard. When conditions are attached the judgment must show what will be the consequence if they are not met. After judgment is entered, appeal should be from it, and not from an order for judgment."1

Void orders are not appealable," nor are judgments which rest on them;"" but an order made on a notice which was merely irregular is. A void order should be first assailed by motion, and the order thereon appealed.95

Adjudications founded on the discretion or wisdom of the trial court are not reviewable, except where the judicial, and not the absolute, discretion is ad

96

84. Brown v. Brown, 64 App. Div. (N. Y.) 544.

$5. Ledebuhr v. Krueger (Wis.) 91 N. W. 1012. Error must be one which the court can correct-Rausch v. Barrere (La.) 33 So. 602. Of injunction against holding election after time for it has passed-Tampa Gas Co. v. Tampa (Fla.) 33 So. 465.

Appeals will be dismissed if there is no longer an actual controversy-Wallace v. Deane (Idaho) 69 Pac. 62; McGill v. Bartman (Ky.) 68 S. W. 1100; Wirth v. Wirth, 181 Mass. 541. See, also, cases cited under 11, post, "Grounds for dismissal."

86.

even

Demurrer sustained or overruled but no judgment yet entered is incomplete (Hollis v. Nelms, 115 Ga. 5; Sloss Iron & Steel Co. v. Knowles, 129 Ala. 410; Tutwiler Coal, C. & I. Co. v. Enslen, 129 Ala. 336; Tinney v. Central of Georgia R. Co., 129 Ala. 523; Memphis & C. R. Co. v. Martin, 131 Ala. 269; Martin v. Sherwood, 74 Conn. 202; Foster v. Bowles, 138 Cal. 449, 71 Pac. 495) though the party stand on his pleadingsHollingsworth v. Hollingsworth (Ind. App.) 64 N. E. 900. Sustaining demurrer and refusing leave to plead over-Turner v. Hamilton (Wyo.) 67 Pac. 1117. Overruling demurrer by one defendant-Mackenzie V. Judson, 96 Ill. App. 26. Sustaining demurrer and ordering dismissal for want of amended pleadings-Harvey v. Cochran, 103 Ill. App. 576.

Judgment against plea to the jurisdiction -Ross v. Mercer, 115 Ga. 353. Striking answer on a rule to bring in new parties-Ray

v. Anderson (Ga.) 43 S. E. 408.

Approval of referee's report on third person's claim against property of bankruptcy, final decree is directly reviewable-Walter Scott & Co. v. Wilson (C. C. A.) 115 Fed. 284.

Order nisl for dismissal not followed by judgment-Plaisted v. Cooke, 181 Mass. 118. Order to clerk to enter judgment upon default of certain conditions-Kennedy v. Citizens' Nat. Bank (Iowa) 93 N. W. 71.

Mere verdict-Nordin v. Berner, 15 S. D. 611. Findings, sufficiency of words examined and held not to be a judgment-Barnemann v. Morrison, 132 Ala. 638. Judgment not entered on verdict when appeal takenKimmel v. Johnson, 18 Pa. Super. Ct. 429. Finality from which to compute time for appeal, see post, § 6-B.

Finality of judgment as distinguished from the mere completion of it by rendition entry or the like, see post, § 4-B, 5.

87. O'Connor v. McLaughlin, 114 N. Y. St. Rep. 741.

88. Judgment on demurrer "in favor of defendants and against plaintiff for costs" held uncertain-Butte & B. Consol. Min. Co. v. Montana Ore Purchasing Co. (Mont.) 69 Pac. 714. Defendant "discharged hence without day" held sufficient-Powell v. Canaday, 96 Mo. App. 27. Mere recital that demurrer was sustained insufficient-White v. Whatley, 128 Ala. 524; Memphis & C. R. Co. v. Martin, 131 Ala. 269. Clerk's entry on record by way of mere recital-Richter v. Koopman, 131 Ala. 399; Cowan v. Campbell, 131 Ala. 211.

89.

Shamokin & C. T. Light & Power Co. v. John, 18 Pa. Super. Ct. 498. 90. Order

to reinstate dismissed officer provided he claims no salary for interimPeople v. York, 169 N. Y. 452.

91.

Y.) 116.

92.

Halliday v. Barber, 38 Misc. Rep. (N.

Decree in vacation-Adams v. Wright, 129 Ala. 305. Order continuing a temporary restraining order after appeal taken to a higher court-Jones v. Walter, 24 Ky. Law Rep. 878. Probate order for transfer of property not in state-Stafford v. American Missionary Ass'n, 22 Ohio Cir. Ct. 399. Proceedings under certiorari after judgment refusing to dismiss it for want of a bondAlabama Midland R. Co. v. Stevens (Ga.) Special term cannot tax register's fees under Code Civ. Proc. § 3287-In re Refusal of Howe, 66 App. Div. (N. Y.) 7. is appealable under Code Civ. Proc. §§ 626, special term to dissolve ex parte injunction 1347, 1348-Marty v. Marty, 66 App. Div. (N. Y.) 527.

43 S. E. 46.

93. On retrial after invalid vacation of first judgment-Akerman v. Ford (Ga.) 42 S. E. 777.

94. New trial, notice premature-Bell v. Staacke, 137 Cal. 307, 70 Pac. 171.

95. Ex parte order allowing attorney fees out of funds in court-Board of Education v. Ward, 50 W. Va. 443. The objector should move to vacate and appeal from that; ex parte order vacating an accounting before surrogate-In re Armstrong, 110 N. Y. St. Rep. 40.

96. Stephens v. Addis, 19 Pa. Super. Ct. 185. Refusal to permit amendment after mandate and before entry of judgmentKelly v. New Haven Steamboat Co. (Conn.) 52 Atl. 261. Refusal to hear oral evidence on motion for new trial, not within Pub. St. c. 153, § 8-Borley v. Allison. 181 Mass. 246. Refusal to open a default (Code, § 602)