ment is a nullity and may be assailed collaterally. Hall v. Melvin, 62 Ark. 439 (35 S. W. Rep. 1109). It is held that a judgment of attachment rendered upon an insufficient service upon a nonresident defendant is not absolutely void, but voidable; and it is also held that an innocent purchaser under proceedings pursuant to such judgment will be protected. Hunter v. Ruff, 47 S. C. 525 (25 S. E. Rep. 65; 58 Am. St. Rep. 907).

Sec. 725. Judgment-Collateral attack. A judgment rendered upon a cross complaint by one defendant against a co-defendant, without any service or notice upon the latter, upon new issues not involved in the original action, may be collaterally attacked. Jewett v. Iowa Land Co., 64 Minn. 531 (67 N. W. Rep. 639; 58 Am. St. Rep. 555). A decree of distribution, though founded upon a mistaken fact, is not subject to collateral attack. Lynch v. Rooney, 112 Cal. 279 (44 Pac. Rep. 565). A judgment rendered in a matter wherein the court has jurisdiction cannot be collaterally assailed; it is conclusive upon the parties and their privies in respect to its own validity in a dispute concerning any right or title derived through it or anything done by virtue of its authority. Carlile v. Des Moines & K. C. Ry. Co., 99 Ia. 345 (68 N. W. Rep. 784). A judgment of a federal court will not be held void on a collateral attack because a transcript thereof, which is certified by the clerk of such court as a "true copy of the record remaining" in his office, fails to show the service of process on or appearance of the defendant, where the judgment is otherwise regular and recites among other things that "the court was well and sufficiently advised as to what judgment to render," and "the defendant failing to introduce any proof, it is," etc. Mc Connell v. Day, 61 Ark. 464 (33 S. W. Rep. 731). 270, and authorities there cited. Mitchell v. Menley, 32 Tex. 460; 339; Evans v. Young, 10 Colo. 316 (15 Pac. Rep. 424; 3 Am. St. Rep. 583); Herrick v. Butler, 30 Minn. 156 (14 N. W. Rep. 794); Sloan v. McKinstry, 18 Pa. St. 120; Wilcher v. Robertson, 78 Va. 602. One court cannot control by injunc tion the execution of the orders and processes of another

Citing, 1 Black, Judgm. § Freem. Judgm. §§ 124-132; Goar v. Maranda, 57 Ind.

court of equal jurisdiction, even though the judgment upon which such process is based is void for want of jurisdiction; but whenever the judgment is made the foundation of a right in another action in another court, if it appear to have been rendered without jurisdiction, it may be collaterally impeached and disregarded because it is no judgment. Scott v. Runner, 146 Ind. 12 (44 N. E. Rep. 755; 58 Am. St. Rep. 345).

Sec. 726. Judgment-Estoppel by. Where a plaintiff prematurely brings his action to quiet title and on his own motion obtains a finding that he is entitled to a lien upon the premises, such finding will estop him from claiming a title which matured after the commencement of his suit and prior to the finding in his favor establishing the lien. Eide v. Clarke, 65 Minn. 466 (68 N. W. Rep. 98). Where a party to a suit knows that a decree may be made ordering the conveyance of land to another, he is thereby estopped from asserting any secret equities which he fails to set up, as against such decree. Fleming v. Strohecker, 117 N. C. 366 (23 S. E. Rep. 440). A decree alloting dower to a widow in all the lands of which her husband died seized will estop her from subsequently asserting a parol trust in her favor in any of such lands. Boyd v. Redd, 118 N. C. 680 (24 S. E. Rep. 429).

case.

Sec. 727. Judgments-Miscellaneous notes. A judg ment is to be construed and aided by the entire record in the Elizabethport Cordage Co. v. Whitlock, 37 Fla. 190 (20 So. Rep. 255). Where the issues tendered by the parties involve a joint wrong, there can be but one judgment and one satisfaction, but such judgment may be against a portion of the defendants and in favor of others. Ashcraft v. Knoblock, 146 Ind. 169 (45 N. E. Rep. 69). Where a statute (Ala. Code, § 3389) forbidding the merits of title to be inquired into in actions for unlawful detainer prevented a tenant from showing in such an action against him by his landlord that the title of the latter had passed to another to whom the tenant had lawfully attorned, and judgment was rendered against him, including an award of damages, it was held that notwithstanding the insolvency of the holder of the judgment its

enforcement could not be enjoined. Coleman, J., dissenting. Davis v. Pou, 108 Ala. 443 (19 So. Rep. 362). A judgment or decree of a court of competent jurisdiction can be set aside in an independent equitable proceeding for fraud, only where the fraud alleged was extrinsic or collateral to the matter which was tried and determined by such court. Hanley v. Hanley, 114 Cal. 690 (46 Pac. Rep. 736). It is held that a party who seeks relief from a judgment on the ground of fraud or mistake, must show that he was reasonably diligent in the matter in which the judgment was procured and that upon discovery of the fraud or mistake he has proceeded with reasonable diligence to obtain relief. Majors v. Craig, 144 Ind. 39 (43 N. E. Rep. 3). Where a judgment has been opened up that a defense may be heard and such defense is sustained and a judgment entered thereon, the first judgment is abrogated even though there be no formal decree setting it aside. Winer v. Mast, 146 Ind. 177 (45 N. E. Rep. 66).

Sec. 728. Appeals-As to the right of. The right of appeal from the decision of tribunals not recognized in the constitution must be unfettered by the requirement of bond or payment of costs. People v. Board of Trustees, 151 N. Y. 75 (45 N. E. Rep. 384). It is held that the legislature may limit the right of appeal in annexation proceedings to resident freeholders, without violating either the constitution of the state or of the United States. Taggart v. Claypool, 145 Ind. 590 (44 N. E. Rep. 18; 32 L. R. A. 586). One who is not a formal party cannot appeal though he is affected as a pendente lite purchaser. Stout v. Phillips Mfg. & Mer. Co., 41 W. Va. 339 (23 S. E. Rep. 571; 56 Am. St. Rep. 843).

Sec. 729. Appeals-Interlocutory orders-Final orders. A decree ordering partition to be made by commissioners, if it can be fairly and equitably done, and, if not, they are directed so to report to the next term of court is an interlocutory order from which no appeal will lie; but a decree sustaining a bill to review a partition is a final decree from which appeal may be taken. Gilleylen v. Martin, 73 Miss. 695 (19 So. Rep. 482). Ordinarily a writ of error can be brought only on a final order or judgment. It is held not

to lie from an interlocutory order in a proceeding for the con、 demnation of land for railway purposes. Wheeling Bridge & T. Ry. Co. v. Wheeling S. & I. Co., 41 W. Va. 747 (24 S. E. Rep. 651). West Virginia Code, ch. 135, § 1, makes interlocutory decrees or orders "adjudicating the principles of the cause," appealable. Under this statute it is held that an interlocutory decree that is appealable as one adjudicating the principles of the cause is one which adjudicates, not some, but all, the questions raised in the pleadings or otherwise, and so far adjudicates, that it determines the principles and rules by which relief is to be administered to the parties, so that it is only necessary to apply such principles and rules to the facts in order to decree the relative rights of the parties in the subject-matter of the suit. Wood v. Harmison, 41 W. Va. 376 (23 S. E. Rep. 560). In Michigan it is held that an appeal will lie from a decree determining the title of the parties in a partition proceeding to be that of cotenants and directing partition to be granted, and that where no title is taken until after the coming in of a report of the commissioners making the partition, so much of the proceeding as was determined by the first decree cannot be reviewed in an appeal of the whole case. Hunt v. Hunt, 109 Mich. 399 (67 N. W. Rep. 510). The denial by the court of an application made to it by the holder of a note secured by a deed of trust for leave to foreclose against the maker who has made an assignment as an insolvent is a final order and appealable as such, although the decree expressly provides that it is without prejudice to the right to make a second application. Smith v. Mc Court, 8 Colo. App. 146 (45 Pac. Rep. 239).

Sec. 730. Appeal-Construction of statutes. California Supreme Court, having appellate jurisdiction"in all cases at law which involve the title or possession of real estate" (Code Civ. Proc., § 52, subd. 2), has jurisdiction of an appeal in an action under Civ. Code, § 485, making a railroad company liable for killing of stock where it has not fenced its road, it being necessary to a recovery for the plaintiff to show ownership or possession of the adjacent land. Baker v. Southern Cal. Ry. Co., 110 Cal. 455 (42 Pac. Rep. 975). Ill. Laws 1879, p. 222, construed and applied—appeals in cases involving free

hold. Lynn v. Lynn, 160 Ill. 307 (43 N. E. Rep. 482). Under the Ohio Rev. Stat., § 5226, the right of appeal is determined by the nature of the action and not by the form of the judgment. Hull v. Bell, 54 O. St. 228 (43 N. E. Rep. 584). Under S. Dak. Laws 1887, ch. 20, regulating appeals to the supreme court, an order setting aside a sale in a foreclosure proceeding is appealable. Kirby v. Ramsey, 9S. Dak. 197 (68 N. W. Rep. 328).

Sec. 731. Appeals-Practice-Miscellaneous notes. An appeal taken in time from a decree, will bring up for review every former order or decree not itself appealable, no matter when entered, and every appealable order or decree entered within the time limiting the taking of an appeal; but it will not bring up for review any appealable decree or order not entered within the time limiting the appeal. Stout v. Philippi Mfg & Mer. Co., 41 W. Va. 339 (23 S E. Rep. 571; 56 Am. St. Rep. 843). An alleged error in overruling a demurrer to a complaint cannot be urged on an appeal from an order denying a new trial. Goodnow v. Parker, 112 Cal. 437 (44 Pac. Rep. 738). Two distinct decrees cannot be joined and by a single appeal presented to an appellate court for revision, where the parties to one would not be proper parties to the other. Kelly v. Deegan, 111 Ala. 152 (20 So. Rep. 378). In Nebraska it is held that an appeal does not operate as a supersedeas except as provided by statute and upon the terms imposed by statute; and an order appointing a receiver pendente lite cannot be superseded as a matter of right during the pendency of an appeal from that order, but only upon such terms as the court may, in its discretion, affix for the protection of the parties. Home Fire Ins. Co. v. Dutcher, 48 Neb. 755 (67 N. W. Rep. 766). Upon appeal, objections to the confirmation of a sale will be confined to those made in the court below. Talcott v. Bennett, 49 Neb. 569 (68 N. W. Rep. 931). A party may estop himself from appealing from a proceeding by accepting the fruits thereof. Holland v. Spell, 144 Ind. 561 (42 N. E. Rep. 1014). Maps, surveys and exhibits showing location of a ditch on a strip of land conveyed for that purpose, which are omitted from bill of exceptions will not be considered on appeal. Old v.