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Appeal and Error

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APPEAL AND ERROR. The methods of exercising appellate jurisdiction for "the re view by a superior court of the final judg ment, order, or decree of some inferior court." Ex parte Batesville & Brinkley R. Co., 39 Ark. 82.

"The most usual modes of exercising ap pellate jurisdiction * * * are by a writ of error, or by an appeal, or by some process of removal of a suit from an inferior tri bunal. An appeal is a process of civil laW origin, and removes a cause, entirely sub jecting the facts as well as the law to a re view and a retrial. A writ of error is a pro cess of common law origin, and it removes nothing for re-examination but the law. The former mode is usually adopted in cases of equity and admiralty jurisdiction ; the latter in suits at common law tried by a jury." Sto. Const. § 1762 ; Behn v. Campbell, 205 U. S. 403, 27 Sup. Ct. 502, 51 L. Ed. 857; U. S. v. Goodwin, 7 Cra. (U. S.) 108, 3 L. Ed. 284.

The appellate jurisdiction "is exercised by revising the action of the inferior court, and remanding the cause for the rendition and execution of the proper judgment" ; Dodds v. Duncan, 12 Lea (Tenn.) 731, 734. It "im plies a resort from an inferior tribunal of justice, to a superior, for the purpose of re vising the judgments" of, the former ; Smith v. Carr, Hard. (Ky.) 305; and it was said in Marbury v. Madison, that its essential cri terion is "that it revises and corrects the proceedings in a cause already instituted, and does not create that cause" ; 1 Cra. S.) 137, 175, 2 L. Ed. 60. Auditor of State v. R. Co., 6 Kan. 500, 505, 7 Am. Rep. 575; Sto. Const. Sec. 1761; Tierney v. Dodge, 9 Minn. 166 (Gil. 153).

The methods of obtaining a review are dif ferent in law and equity. In the latter the legal process by which it is obtained is term. ed an appeal, which is the removal of a cause from a court of inferior to one of superior jurisdiction, for the purpose of obtaining I review and retrial; Wiscart v. Dauchy, 3 Dall. (U. S.) 321, 1 L. Ed. 619; U. S. v. Good win, 7 Cra. (U,S.) 110, 3 L. Ed. 284; Boone! v. Chiles, 10 Pet. (U. S.) 205, 9 L. Ed. 388 ;1 Wetherbee v. Johnson, 14 Mass. 414 ; King v. Sloan, 1 S. & R. (Pa.) 78. When taken in open court it does not need the formalities of ancient law to indicate that it is taken against all adverse interests; Taylor v. Lees

nitzer, 220 U. S. 93, 31 Sup. Ct. 371, 55 L. Ed. 382.

An appeal generally supersedes the judg ment of the inferior court so far that no action can be taken upon it until after the final decision of the cause ; Archer v. Hart, 5 Fla. 234 ; Danforth, Davis & Co. v. Carter, 4 Ia. 230 ; Waterman v. Raymond, 5 Wis. 185 ; Frederick v. Bank, 106 Ill. 147 ; Lam phear v. Lamprey, 4 Mass. 107 ; Walker v. Spencer, 86 N. Y. 162. A decree is final for the purposes of an appeal when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce what has been determin• ed; St. Louis, I. M. & S. R. R. Co. v. South ern Co., 108 U. S. 24, 2 Sup. Ct. 6, 27 L. Ed. 638; Bostwick v. Brinkerhoff, 106 U. S. 3, 1 Sup. Ct. 15, 27 L. Ed. 73 ; Grant v. Ins. Co., 106 U. S. 429, 1 Sup. Ct. 414, 27 L. Ed. 237. Before an appeal can be prosecuted by one of several defendants, the case should determined as to all; Meagher v. Mfg. Co., 145 U. S. 611, 12 Sup. Ct. 876, 36 L. Ed. 834. In equity cases all parties against whom a joint decree is rendered must join in an ap peal, if any be taken ; and when only one takes an appeal, and there is nothing in the record to show that the others were applied to and refused to appeal, and no order is entered by court, on notice, granting him a separate appeal, his appeal cannot be sus tained ; Beardsley v. R. Co., 158 U. S. 123, 15 Sup. Ct. 786, 39 L. Ed. 919.

A writ of error is the means of bringing under review by an appellate court, for re vision and correction, the judgment in an action at law of an inferior court of record, when the proceedings are according to the course of the common law. See Warr OF ERROR. In cases in which the proceedings are summary or different from the course of the common law they are reviewed by Cer tiorari. See that title. And in England the judgments of inferior courts not of record were brought up for review by writ of false judgment. See FALSE JUDGMENT. 4 Archb. Pr. 4, quoted in Ex parte Henderson, 6 Fla. 279.

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