Opinion of the Court.

not contended that that court ever entered any order allowing an appeal or that any application and allowance was ever filed therein.

The record was filed in this court August 13, 1893, and the cause docketed as an appeal from the Circuit Court. The result of all this clearly is that the pending appeal is not an appeal from the Circuit Court of Appeals, and is an appeal from the Circuit Court.

But under the fifth section of the judiciary act of March 3, 1891, appeals will not lie directly to this court except in cases falling within one or the other of the classes of cases therein enumerated, and the case before us is not one of them.

By the sixth section appeals may be taken from the Circuit Courts of Appeals to this court in all cases in which the judgments and decrees of that court are not therein made final, where the matter in controversy exceeds one thousand dollars besides costs, and copyright cases are such cases. But this is not an appeal from the Circuit Court of Appeals. Our appellate jurisdiction is defined by that act and we cannot maintain jurisdiction to review the judgments and decrees of the Circuit Courts except as therein prescribed. It does not help the matter that the Circuit Courts may, by the form of their entries, make the judgments and decrees of the Circuit Courts of Appeals their judgments and decrees. We cannot revise the judgments and decrees of the appellate tribunals except when brought before us by appeal therefrom, writ of error thereto, or by certiorari.

Appeal dismissed.

MR. JUSTICE BREWER and MR. JUSTICE PECKHAM did not hear the argument and took no part in the decision of this

case.

Statement of the Case.

PEREGO v. DODGE.

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF UTAH.

No. 273. Argued May 1, 1896. —Decided May 18, 1896.

This complaint being, in effect, a bill to quiet title as against an adverse claim, and the plaintiff having thus voluntarily invoked the equity jurisdiction of the court, he is in no position to urge, on appeal, that his complaint should have been dismissed because of adequacy of remedy at law, and such an objection comes too late in the appellate tribunal. Where a case is one of equitable jurisdiction only, the trial court is not bound to submit issues of fact to a jury; and, if it does so, is at liberty to disregard the verdict and findings of the jury.

By reason of his selection of this form of action, and his proceeding to a hearing and decree without objection, the contention of the appellant in respect of his deprivation of trial by jury comes too late.

The act of March 3, 1881, c. 140, 21 Stat. 505, was not intended to require and does not require all suits under Rev. Stat. § 2326, to be actions at law and to be tried by a jury.

THIS was a suit brought by William Perego against W. H. Dodge and others in the District Court for the Third Judicial District of the Territory of Utah in pursuance of the provisions of section 2326 of the Revised Statutes. The complaint alleged the title of plaintiff to a mining claim, called the Perego, of which he averred he was in possession; described it; and stated the date of location, existence of the vein and the other facts entitling him to a decree founded upon such title. It was then alleged that defendants had made application for a patent to certain mining claims known as the Mayflower Nos. 4 and 5, and that they had wrongfully surveyed said claims so as to conflict with plaintiff's claim; and, after describing the area in conflict, averred that notice of the application for patent by defendants was published; that within the sixty day period of publication plaintiff filed in the land office his adverse claim, and brought this suit within thirty days thereafter. Plaintiff prayed judgment and relief against defendants," that the plaintiff is the owner and lawfully in and entitled to the possession of the last above described premises, the area in conflict between the said Perego mining

Statement of the Case.

claim and the alleged consolidated claim of Wm. H. Dodge et al. upon alleged Mayflower No. 4 and Mayflower No. 5 lode locations and the lodes therein, and quieting and confirming plaintiff's title thereto and possession thereof; that the defendants have no title to or right of possession of said conflict area or the lodes therein or any part thereof; that the defendants be restrained pending the action and upon trial perpetually from entering in or upon said conflict area or the lodes thereon or any part thereof or mining in or extracting any ores or mineral therefrom, and from in any way interfering with the possession thereof; also that the plaintiff have all other and further proper relief, with costs of suit."

Defendants answered denying the material allegations of the complaint, and further affirmatively set up the necessary jurisdictional facts of their location, averred that the required assessment work had been fully performed, claimed a valid location of the Mayflower Nos. 4 and 5, and prayed that defendants be adjudged to be the owners and entitled to the possession of the said Mayflower Nos. 4 and 5 lodes and mining claims, including the area in conflict, and for all other proper relief, and for costs of suit.

The case came on for trial and the parties appeared by their attorneys, as the record states, "present and ready for trial and the case is tried before the court." The trial occupied three days, May 6, 7 and 9, 1891, and on May 11 the following entry was made: "This case having been heretofore tried and submitted to the court, and the court being now fully advised, finds the issues for the defendants, and it is ordered that decree be entered herein in favor of the defendants and against the plaintiff and quieting and confirming the title of the defendants to the area in conflict herein, and plaintiff is allowed thirty days' stay and the same time to file notice of motion and statement on motion for new trial." The District Court made findings of fact and conclusions of law, which commenced as follows: "This cause duly coming on for trial on the merits before the court without a jury, and the court having heard the pleadings, evidence and arguments of the respective counsel, the court now makes and files the following findings of fact and

VOL. CLXII-11

Statement of the Case.

conclusions of law." The court found the claims of defendants valid and that of plaintiff invalid as against defendants, and that defendants were entitled to a decree "adjudging them to be the owners (subject only to a paramount title of the United States) and in and entitled to the possession of the whole and every part of the said Mayflower No. 4 and Mayflower No. 5 lode mining claims, and as part thereof and belonging thereto the conflict areas described in the complaint and the whole thereof, and adjudging that the plaintiff had not at the time he filed his protest and adverse claim or at any time since, and has not now any right, title or interest in or to said or any part of said conflict areas described in the complaint, and forever enjoining, estopping and debarring the plaintiff and any and all persons claiming by, through or under him from at any time setting up any claim of right or title to said or any part of said mining claim or conflict area, and forever confirming and quieting the defendants' right and title thereto, and awarding the defendants their costs herein as against the plaintiff."

These findings and the decree in accordance therewith were filed and entered on August 18, 1891. On August 5, 1892, plaintiff, acting through other counsel than appeared at the trial, filed a notice of intention to move the court to set aside and vacate the findings and decision and decree, and for a new trial, on the ground: "1st. Irregularity in the proceedings of the court by which the plaintiff was prevented from having a fair trial. 2d. Errors of law occurring at the trial, to wit, the trial of said cause by the court without a waiver of jury by the plaintiff. 3d. Because the findings and decree are irregular and void as appears by the record." This notice was accompanied by an affidavit that the value of the property exceeded one thousand dollars; that plaintiff had not by himself in person or by attorney, at any time; orally, or in writing, waived his right of trial by jury in said suit, and that he had at all times desired to have the same tried by a jury; that no notice of the decision of the court in the cause had been served upon him or his attorney.

Notice of appeal to the Supreme Court of the Territory of

Opinion of the Court.

Utah was filed August 15, 1891, and on August 16, plaintiff was allowed thirty days' time to file an undertaking on appeal. On September 3, a new notice was served of the motion to vacate and set aside the findings and decree and for new trial. On September 10, thirty days was allowed plaintiff for an undertaking on appeal. On September 19, the motion to vacate and set aside the decree and grant a new trial was submitted and overruled, and on October 4, 1892, notice of appeal from that order was given, and an undertaking on appeal was subsequently filed. No statement or bill of exceptions appears in the record. The case was brought to a hearing in the Supreme Court of the Territory of Utah, and the judgment of the District Court was affirmed with costs. 9 Utah, 3. Affidavits of the value of the matter in dispute were submitted and an appeal allowed to this court.

Errors were assigned to the effect that the Supreme Court of Utah erred in affirming the decree of the District Court in that the District Court should have dismissed the complaint because in equity when the remedy was at law; should not have awarded defendants affirmative relief in the absence of a cross complaint; and should not have tried the case without a jury.

Mr. B. F. Lee, (with whom was Mr. Gerald G. P. Jackson on the brief,) for appellant.

Mr. Arthur Brown, (with whom was Mr. William H. Dickson on the brief,) for appellees.

MR. CHIEF JUSTICE FULLER delivered the opinion of the court.

In the Territory of Utah there was but one form of action, legal or equitable, through the intervention of a jury or by the court itself, according to the nature of the relief sought, provided, however, that no party could be "deprived of the right of trial by jury in cases cognizable at common law." Rev. Stat. § 1868; act of April 7, 1874, c. 80, § 1, 18 Stat.