
    Nicholas Longworth v. Josiah R. Sturges and Alonzo W. Anderson.
    A bill of review to reverse a decree of reversal of this court can not be sustained while the cause is pending in the court below, undetermined, nor until there has been such a decree rendered between the parties, as either may plead in bar to an action for the same subject-matter settled by it.
    Bill of review.
    At the February term, 1840, of the court*of common pleas of Hamilton county, a decree was taken for complainant for the sale of lands mortgaged by defendants, to secure the payment of promissory notes given by them to complainant for the same land, under .and by virtue of which sales of the premises were made; and at the November term, 1840, a final decree was entered in the case, .approving the sales and proceedings.
    On the 10th of June, 1847, a bill of review was filed by defend-1M] ants, in the same court, which, at the February term, *1851, -reversed the former decree. From this decree an appeal to the Supreme Court of Hamilton county was perfected by complainants, which vacated the decree of reversal; but before any adjudication of the cause by that tribunal, it was, by the new constitution, transferred into the district court of the county, by which last-named • court it was reserved for decision here.
    At the January term, 1853, of this court, the original decree of •the common pleas., and all proceedings had under it, were reversed, ..and. the cause remanded to that court to be proceeded in “ to final de•cree between the parties.” Sturges and Anderson v. Longworth, 1 Ohio St. 545.
    In March, 1853, a petition for the rehearing of the order of reversal, was filed by complainant, and at December term, 1854, determined against him. Sturges and Anderson v. Longworth, 2 Ohio St. 104.
    The present bill was thereupon filed to review and reverse the decree of reversal, made in 1853 by this court.
    A motion was made by defendants to strike the bill from the ■files, for want of jurisdiction in the court to entertain it. Pleas were also interposed, averring, in substance, that the cause had been, in conformity to the order of this court, docketed in the common pleas of Hamilton county, and the papers removed into that court; that new pleadings, in part, had been filed, and new parties, having interests adverse to both complainant and defendants, brought into the case, and the whole, thus changed, was proceeding to final decree in said court of common pleas. No replications have been filed to these pleas, and they must therefore be taken as true. Defendants also filed, in connection with their motion and pleas, a demurrer.
    At the December term, 1855, of this court, the motion to dismiss, for want of jurisdiction, was overruled. 4 Ohio St. 690.
    *The case, at this term, has been heard upon the several [145 objections raised by the motion, pleas, and demurrer.
    
      Worthington & Matthews, and Henry Stanbery, for complainants.
    
      A. E. Gwynne, T. Ewing, C. P. James, Caldwell & Paddock, H. H. 3unter, and E. P. Norton, for defendants.
    
      T. Ewing, for Anderson:
    I. Courts without original equity jurisdiction, and which are ■courts of the last resort, and which do not retain causes for execution, can not, according to the usages of courts of equity, entertain bills to review their own decrees.
    All these elements combine in the constitution of this court, and therefore it can not, consistently with the usages of courts of equity,. entertain a bill to review its own decrees.
    II. No power is granted to, or duty imposed on, this court, by the constitution Or by statute, to entertain a bill of review to re.examine and reverse or affirm its own decrees.
    III. But the jurisdiction, if granted, could not be exercised without the introduction of a loose novelty in practice which departs-from all that is logical and exact in legal procedure.
    The court is asked to review, not the original case which was-once here, on appeal and by reservation, that has been sent back the way it came, through the district court, to the common pleas, and is there pending.
    Then what have we here for this court to act upon ?
    The case was appealed from the common pleas to the Supreme-Court, under the 127th section of the practice act. Swan’s Statutes, 1841, p. 683. A transcript of the journal entries, and of the final decree rendered in the case, 11 together with the- original papers,”' 146] was delivered by the *clerk of the common jileas “ into the-office of the clerk of the Supreme Court,” and the ajijioal was jierfected. The district court took the jilace of the old Supreme Court1 antf the cause was reserved for decision, and transmitted to this-court, and decided and remanded by it, under the fifth and sixth sections of the act of February 19, 1852. The original papers came-to this court when the cause was transmitted .here; they went back again when the cause was remanded.
    What is here now? In legal contemplation, nothing but journal entries of your decrees of reversal and mandate. The transcrij>t of the journal entries certified to the old Sujireme Court from the-common jileas, is, or ought to be, in the district court, through which the cause was remanded. The case is in the common jileas — soul and body, it is there, and that court has 11 full jurisdiction over it.” The pajoers making up the case, and embodying it, are neeessarily there also. It is n.o matter whether they have in fact been brought back and jiut in a jfigeon-hole in your court-room or not, they are not here under any legal provision, and this court has no power to-get them here. A case in chancery could come here only after final decree in the court below, and the case, when it comes, brings with it the pajiers in which it is embodied; but there is no means known to equity practice by which this court can invoke papers from the-common pleas, out of a case still-jiending there, and. bring them into, and make them a part of,11 another case” pending in this court. The absurdity of the thing — its legal ¡impossibility — accounts for the fact that no attempt was ever before made to review a chancery-case in an ajipellate court, after it had been remanded to the inferior court, or to review the decree of the revising court, after it had reviewed and remanded the cause. This court is, almost be-yond example, destitute of means for *sueh action. Gen- [|47 erally, there is a record of the whole case sent up with the appeal, as in the Supreme Court of the United States, and that record remains in the appellate court. In the Supreme Court of Tennessee, the whole case, record and all, remains, and the decree is executed there; and that was the reason Judge Peck gave, in the case of Cox & Catron v. Breedlove, for dissenting from the rest of the court, and holding that the bill of review would lie.
    Here there is nothing- but the record of the decrees of this court, embodying the mandates. There are no bills, no demurrers, no depositions belonging to the ease, in which the decrees were entered. Indeed, the decrees, all that -was vital in them, are gone from this court — sent down to the court below, with -the case into which they became incorporated, and of which they form a part. And if this court reverse all of them that remain upon its records, what does it reverse ? Not the case — for there is no case before it 1 —but the principle, heretofore decided merely, but connected with, or involved in no case in this court, or over which this court has control. "What remain here of these decrees are what the old logicians called quiddities — “ghosts of defunct bodies”- — shadows only, or mementoes of what once were. It was quite idle to review them. If the decisions are wrong, it will be in áccordance with equity practice to overrule them in future cases involving the same principle, but it were more idle than boys’ play to attack and try to kill the skin after the snake has slipped out of it.
    For suppose this court to go on and review so much of this case as remain in it, and suppose it to hold that the entire case is potentially here, so that it can act upon it. Then, since it is a case of this court, not of the common pleas- — since the final decree, which is under review, is a decree of this court, not of the common picas, *the revisory action of the court must terminate upon the [148 decree reviewed, and upon the court in which the case is reviewed. The legislature, might, doubtless, have provided that the reversal of a decree of this court, reversing a decree of an inferior court, should, ipso facto, affirm the decree of the inferior court, and it might have authorized this court to send down a mandate to the inferior court to embody its decree in the cause pending below, and give it that or any other proposed effect; but there is no such statutory provision, and nothing of the kind is to be found among the usages of courts of equity. And there is no means known to the books ¡by which this court can communicate thefact of such reversal and its contemplated operation to the inferior court. The act would The, in the parlance of modern metaphysics, entirely subjective, not •operating beyond the action itself, nor reaching any external •object.
    No mandate can be sent down, for there is no cause from the ■court below in this court to be re-manded. The statutes cited above, which allow this court to re-mand cases to the courts below, •do not authorize it to make its own case, send down its decree, which ■which it has made in its own case, and incorporate it with, or sub •.stitute it for a ease pending in the inferior court. That would be mandat, not remandat. And-I need not say that this is not 'a case in which a mandamus can lawfully issue.
    Such irregular action has no warrant or precedent in the “ known usages of courts of equity,” and I do not think a case of the kind ever occurred in the abnormal practice of our old Supreme Court, as I can find none, where the case reversed had been sent down for •execution, and was pending in the court below when the second bill •of review was filed. If such case had arisen, it would have been made a question and noticed in our reports. But, if there ever 149] *was any such, it must have arisen under the act of March 17, 1838 (Swan’s Stat., 1841, 717), which does not apply to this •court, but to the district court, as the successor to the old Supreme 'Court.
    In the case of Strader v. Byrd’s Heirs, 'the Supreme Court dismissed the bill for want of jurisdiction. Judge Hitchcock’s opinion therefore, as to certain circumstances under which such bill might lie in that court, was obiter, and he says it was formed without much .aid from counsel, or examination of authorities. So much of it as •does not tend to a decision of the ease ponding, though entitled to respect, is not authority, and there never was a bill sustained in our •old Supreme Court to review its own decrees, until the act of March 17,1838, provided for in it.
    But I need not pursue this point further; every step exposes a new absurdity consequent upon the proposed review. The thing •claimed has no legal warrant, and if the court could legislate thom•selves into possession of such power, the consequences which it ■would involve must forever forbid it. The high appellate court of England made, its own laws, and it denied itself this power, because at could not be exercised without destruction to system and order.
    
      On the whole, then, we submit that this court can not, by virtue of its general powers as a court of equity, or of special powers conferred on it by the constitution, or by law, entertain a bill to review its own decrees. If it do possess such power, all other courts similarly constituted, both in England and in the United States, have failed to perceive the extent of their powers and duties, or percieving, have failed to execute them.
    
      Caldwell & Paddock made the following points:
    This bill of review will not lie:
    *1. Because the decree sought to be reversed is not a final [150 •decree.
    A final decree is one that definitely settles the claims of the parties to the controversy. This decree settles no rights, but leaves •all the parties with the same rights which they had at the commencement of the suit. It has been frequently decided that a writ of error or certiorari would not lie to a judgment of reversal where the cause was retained for another trial. 12 Ohio, 219; 10 Ohio, 268; Wright, 418; 20 Ohio, 74, 79, 80; Swan’s Rev. Stat., sec. 533, p. 692.
    2. Because the ease is now pending in the court of common pleas which had obtained jurisdiction before this bill of review was filed. The same subject-matter, of controversy can not be pending in two ■courts at the same time.
   Bowen, J.

The remedy by bill of review is a well known proceeding in chancery, and lies for errors appearing in the record, or for evidence which has been discovered since the decree was entered, and which, when properly applied, may servé to correct or change it in some material respect. It must be brought before the same court which decided the original cause, and can only be sustained after final decree made.

The chancery practice act of 1831, section 54 (Statutes of 1841, p. 714), confers the right on any one who was a party to 'a decree, or his representatives, at any time within five years after its date, to “ file a petition for a review of the proceedings in which such former decree was rendered.” ■ Beyond the authority to prefer the petition, the manner pointed out Of obtaining a stay of proceedings till the review can be heard, and the mode of bringing parties into court, there is very little instruction given in the statute as to any other 151 proceeding to be observed. We are left to ^pursue the practice of the courts of chancery so far as it may be applicable to our institutions, and we readily adopt for our guide, principles which have been established by the usage of those tribunals as safe precedents to follow, and we usually feel much security in conforming-our orders and decrees to them.

It is urged by counsel for defendants that there had been no final decree rendered when this bill was filed — that after the order of reversal, the cause was remanded to the inferior court to be further proceeded in, and consequently that nothing remained in this court to be reviewed; the original papers having passed into the court of common pleas, to enable that forum to make a proper and complete determination of the subject-matter involved in them. This argument is met by the assumption that the sole power of the court, over the proceedings and papers in review, was exhausted when the decree of reversal was rendered, that nothing further remained to be done except to remand them to the common pleas, or retain them here for decision on their merits, and, therefore, that the act of reversal was a finality — a conclusion of the controversy thus raised, and of the complainant’s rights, as fully as they could be affected by that proceeding ; and that a party, who deems himself injured, may, without awaiting the further progress and final ending of the cause in the court below, have a review of the reversing decree, and a confirmation of the original decree, and thus be restored to what he has lost by the erroneous reversal.

If this difference between the parties were settled by any known usages of chancery, as evidenced by books of authority, we should, feel relieved from the hazard of declaring a rule which may seem to conflict with the doctrine of elementary writers, and would quite willingly pursue the path which others have trodden, rather than 152] incur *such hazard. But in the absence of any well settled, authoritative adjudication relative to the point made, we are constrained to adopt what seems to us a reasonable, if not in fact the only, view which can be sustained, and leave the case unembarrassed by future grave difficulties.

Mitford, in his treatise on Chancery Pleadings, page 88, lays down this rule: “ If upon a bill of review, a decree has been reversed, another bill of review maybe brought upon the decree of reversal;” and refers to Neal v. Robinson, Dickens, 15, and to Chan. Prac. 633. Cooper, in his work on Chancery, page 92, makes the same general remark, and refers to the same authorities, and to Redesd. Tr. Ch. Plead. 79. Maddox, Story, and Adams reiterate the doctrine, and ■give the same references to support it.

The book of Chancery Precedents and Practice referred to, we have not been able to examine. It is not to be found in the libraries to which we have had access. What rule it indicates, or what form it furnishes, we have not the means of knowing. It is believed, however, that he origin of the passage in Mitford, which is ■copied by many of the elementary writers on chancery practice, may be traced to Neal v. Robinson. It is the only reported case referred to by any of them. In order to know whether the principle promulgated by them is sustained, or was, in fact, ever announced by a court, we here quote from 1 Dick. 15, the case in full as it there appears:

“ Neal v. Robinson [November, 1683], (Reg. Lib. B. B., fol. 168.) Bill of Review reheard.”

A case more meagerly reported can not, perhaps, be found. It contains but a simple sentence, which fails, certainly, to authorize the doctrine in Mitford. It shows that a bill of review had been reheard. The court which had rendered or was asked to render a ■decree of reversal, wo infer, listened again to arguments touching the *propriety of the reversal. That may have been on'peti- [153 tion filed, or on re-argument ordered by the court. The same may be done here. That actually was attempted in this case. A petition for rehearing was filed, but the court declined to again hear and pass upon the bill of review. The case in Dickons was, doubtless, of that character; the court being satisfied that the question ought to bo further considered. There is not, to our comprehension, much .similarity between that reported decision and the dictum put forth in Mitford. No other authority has been quoted by counsel, and we have not been able to find any bearing upon the point.

In Strader v. Byrd, 7 Ohio, 184, the court experienced the same difficulty now encountered, in finding authorities- to sustain the bill then under consideration, which had been filed to review the decree of the Supreme Court, on appeal from an order of reversal of the court of common pleas, but finally settled down in a doctrine that a bill of review will not lie after two concurrent decrees have been made by courts possessing a proper jurisdiction to render them, and turned the complainant out of court by dismissing his bill. The syllabus of this case is printed as follows: “A decree upon a bill of review can not be again reviewed in a second bill of review.” It is worthy of remark that there had been a final decree 'made in this case, before any attempt was made to review it.

By our statutory practice, as well as that which,- independent of it, prevails in courts of chancery, no review of a decree, either on appeal or by bill filed, can be had until such decree, in its terms or operation, becomes final. While it is interlocutory in its form, or there remain any rights to be settled, or further proceedings to be had between the parties, no such remedy is allowed. The litiga154] tion must be ended so as to leave no other question or *direetion for the future judgment of the court. There must be a disposal of the whole merits of the cause, and the suitors out of court, before a decree can acquire that characterof finality, which subjects it to review. Statutes of 1841, 743, secs. 52, 54; Mills v. Hoag, 7 Paige, 18; Bowyer v. Lewis, 1 Hen. & Munf. 553. It must also possess the additional quality of being a bar between the parties, which either may plead to any new bill for the same matter. 2 Dan. Ch. Prac. 1190, and notes.

Now, to test the case before us by the application of this undeniable and well recognized doctrine, how will it stand ? This court has reversed the decree of the common pleas in a ease which, upon its face, clearly shows that justice can not be done without further proceedings are had in it. An error which intervened in the latter court, deserved, in the opinion of this court, to be corrected, and the defendants, who claimed to be injured by it, to be placed in statu quo, or, it other words, permitted to answer and make defense. It was apparent that such decree, when set aside, would leave valuable, though controverted rights'of property undetermined. Hence, it was the duty of the court, in its efforts to administer impartial and adequate relief, to provide for the settlement by future decree,, of all such question as might be opened or unsettled by the reversal. This, it might have accomplished by retaining the cause in this court for decree, or by remanding it to the court below for such further proceeding as was proper. The latter course was chosen. It went back to the common pleas. New parties have been made, and new questions raised in it, and it is either now pending, or has been terminated in that tribunal. While it is thus standing undecided upon its merits, or after another decree predicated upon and required by our mandate, and-which cures the mischiefs which crept into the former decree, by means of error committed, *has been signed and enrolled, as for aught we know [15ft may be the fact, we are asked to reverse the decree which has accomplished, or may produce these results, and to do this upon the theory that the reversal was a final decree, and that we can not regard the remanding of the cause — the redocketing of it for hearing —the filing of a supplemental bill — the introduction of new parties on the record — the filing of answers by defendants, and the taking of new proofs, as a continuation of the subjects litigated, nor as matters bearing relation to, and as being inseparable from, the decree itself; nor are we at liberty to regard these unavoidable and unnecessary incidents of it, in solving the query, whether it be final or interlocutory in its nature. , But it is insisted that we should, in framing conclusions upon the effect of that decree, in order to satisfy ourselves whether it bo of such character as may be reviewed, keep out of mind these considerations, and wholly disregard the fact whether other proceedings, incidental to the reversal, are in progress between the parties.

We are disinclined to adopt this restricted mode of answering the proposition, for we are met, full in the face, with what seems to-us the inflexible objection that the litigants and their cause are yet in court, invoking the'chancellor’s adjudication between them, upon controverted questions of right. We are not able to place the decree, now sought to be reviewed, upon ground so • exclusively isolated from and independent of an important branch of itself It can not be severed from the parent which,, gave it birth, but must continue one of its offspring, bearing an indissoluble relation to it — each being a part of the other. It seems to us to be interlocutory in its main object, intended to serve the simple office of correcting an error, and of commanding further action to be had to relieve those who were injured by it; in short, to prepare the way *for settling anew, and upon a more correct basis, all quesi [156 tions of right and of equity, between complainant and defendants, by avoiding the mistakes which introduced impure and unconscionable principles into the former decree. It seeks no other end, and should serve no other purpose.

How, then, can it with propriety be said, while the court below is proceeding to carry out this design, that the foundation for a review has been laid ? After the court which now holds jurisdiction of the cause shall conclude its charge over it, by a final determination the merits, there be no cause of complaint by any party to tbe proceeding. That ruling which shall comport strictly with principles of equity, it is to be presumed, will bo administered, and with that all should be satisfied. It is due to that tri bunal to await its determination of the matters remanded to it for decision. If a bill of review shall then be deemed necessary, the objection now urged will be removed.

W e do not intend to say that a bill will not lie in any case to review a decree of reversal. There may be instances in which a decree would be final between the parties — a conclusion of the merits in controversy. Where this occurs the review may lie, if .there be no other objection. Such was the case of Strader v. Byrd, 7 Ohio. The order sought to be reviewed was a decree of dismissal of the original bill. That had put an end to the proceeding, and the parties were out of court. This is deemed to be a final decree, and the text-books may speak correctly in laying down the doctrine that such bills may be filed, if they refer to that class of cases; but outside of that description of decrees, it can not, as we think, ■ upon principle, be made to apply. A decree of dismissal is final, unless it be made without prejudice. 2 Dan. Ch. Prac. 1200.

*Having failed to find any authority in the chancery books to warrant the filing of the bill now before us, and, indeed, having failed, almost entirely, to find any decision on the subject of bills filed under similar circumstances, we are led into an examination of proceedings at law, between which and causes in chancery there may be some analogy to support the view we take.

A writ of error to a judgment at law, and a bill of review to a decree in chancery, alike seek the correction of errors. They may, by our statute, each be prosecuted within five years from the date of the judgment or decree. The writ of error is hoard, usually, in a different court from that which rendered the j udgment. A bill of review is filed in the same court which pronounced the decree. In both, the uniform practice, after reversal, is to subject the matters in dispute to further judicial action, either by remanding the cause to the inferior court, from which it was removed by appeal, for such action, or by retaining it for disposal in the same court which ordered the reversal. Neither the judgment nor the decree is 'final, while any thing further remains to be done in that suit between the parties. If the effect of the reversal, in view of the grounds upon which it is predicated, be such as to close, at that stage, the litigation of the parties, and to send them out of court, without the power to recommence another action for the same •cause, it is quite clear that, in either case, the remedy in error will lie to such final adjudication, but not otherwise.

In Reed v. Dewolf, Wright (S. C.), 418, the judgment of a justice of the peace was reversed by the court of common pleas, and the cause set down for hearing in the latter court. While pending there, for trial; a writ of error was brought in the Supreme Court to reverse the judgment of the common pleas, and to affirm that •of the justice. The *court say that the writ of error will only [158 bring up the record of a final judgment, and if it appear that the cause is still pending in the court below, the writ must be quashed, as none other than a final judgment can be reached on error.

In Herf v. Shultz, 10 Ohio, 268, the court say that writs of certiorari are not allowed in Ohio, by the Supreme Court, until the cause is finally disposed of in the court below. The same point is , ruled in Kelly v. Hunter, 12 Ohio, 216.

Although we do not claim perfect anology between proceedings .at law and in chancery, in the form of error, yet it must be conceded that much of the reasoning which prohibits the courts from entertaining any jurisdiction of writs of error while the case is pending and undetermined in the court below, is equally applicable to bills of review. If, for example, the judgment of the court of common pleas, rendered by default, were reversed by this court, because the defendant was insane at the date of the judgment, and a procedendo sent to that court, commanding it to proceed to the further hearing of the cause, no one will pretend that a writ of error would lie to the judgment of reversal. Why? Because there has been no final judgment given. The cause is pending, and, notwithstanding the power of the court has been exhaustedj under the petition in error, and as to that, a final judgment rendered, yet the suit must progress further; and until that progress is complete, by a final termination of the issue formed, the remedy by error can not be had against the judgment of reversal. It is difficult to perceive any reason for the observance of this rule as to judgments, which does not apply with equal force to decrees in chancery. The effect of a review of a former reversal, during the continuance of litigation in the ease, would be the same as to both. ^Another judgment, or decree, might in the court below, be [159 rendered, pending the proceedings in error, which would differ from, or be inconsistent with the one which would be reinstated, and thus present the absurdity of the existence of two judgments, or decrees, on the same subject-matter, in the same court, liable to be enforced at the same time, and without any known judicial power to declare which shall take precedence, as res adjudicata, or which shall prevail against the other. After judgment or decree, in the sense hereinbefore defined, no such difficulty will arise in the way of proceedings in error, to reverse either judgments or decrees ; and hence the necessity of following the practice, so well maintained at law, of carrying the cause to final judgment or decree, before attempting to review it,

A majority of the court concur, for the reasons given in the opinion, that this bill can not be sustained, and that the pleas should, therefore, be allowed, and the bill dismissed.

Bartley, C. J., and Brinkerhoee and Scott, JDT., concurred.

Swan, J., dissented.

Bartley, C. J.,

concurred in the decision dismissing the bill, for the reasons following, in addition to those stated in the opinion of the majority of the court:

1. The decree sought to be reviewed was not final upon the controversy between the parties, and, therefore, not the subject-matter of a bill of review.

A bill of review must come under the head of either original or appellate jurisdiction. If it be a distinct and original proceeding, and, therefore, a matter of original jurisdiction, this bill must be dismissed, on the ground that it is not included in the original 160] jurisdiction of this court prescribed by the constitution. If it fall within the appellate jurisdiction of this court, it is on the ground that it is a mere continuation of, and an additional proceeding in, the original case, over which we had already acquired jurisdiction by appeal. And if the bill of review be simply a renewal and prolongation of the original case, the decree under the bill of review, being a mere supplemental or additional step or proceeding in the original case, can not be the subject-matter of another bill of review, unless it be a final disposition of the controversy involved in the original case. The decree of reversal, however, in this case, simply set aside the decree of foreclosure in the common pleas, leaving the rights of the parties in the original case unsettled,, and directing further proceedings by the proper steps, by •which .a final decree could be had, conclusive upon the parties. Had this court, after setting aside the decree of foreclosure, retained-the case for further proceedings and final decree, it would scarcely have been claimed by any one that the progress of the case could, have been interrupted by a bill of review .to reverse the decree of reversal. And how much more absurd to say that the same thing could be done after the cause had been remanded, the jurisdiction of the common pleas over the case had attached, and while that, court was proceeding with an amended bill, new and additional parties made, and new answers filed; or where, for aught we know,, a final decree on the whole merits of the case, settling all the equities of the parties, may have been rendered before this time.

2. Jurisdiction has not been conferred on the Supreme Court by-statute, to supervise its own decrees in chancery, by bill of review ; and such jurisdiction is not usual or proper in the court of last resort.

The decision in this case, at the December term, 1855, on the-motion to dismiss this bill of %’eview which is reported in [161 4 Ohio St. 690, is not conclusive on this court. That decision was made without a full court; and with all proper deference for the opinions of the learned judges by whom the decision was made, he-deemed it proper to say that it never received his assent, and he did not regard it as a well-considered decision. The very fact that the important preliminary question upon which a majority of the-court now concur in dismissing the bill, was in that decision wholly overlooked, or passed without notice, shows that the decision was-made without full consideration. Besides, the manifest effect of that decision, if it prevail, is to overrule the doctrine of the decision in. this case, on the petition for rehearing, reported in 2 Ohio St. 104, which he regarded as good law.

3. The further and prolonged investigation of this case since the decision reversing the decree of the common pleas, reported in 1 Ohio-St. 545, has only tended to strengthen his convictions of the correctness of that decision, which established a sensible and practical rule resting on reason, instead of making the aj^pearance of a lunatic,, in a suit against him, by. a guardian ad litem, a mere useless matter-of form.

J. R. Swan, J.

I am constrained to dissent from the opinion off the court in this case.

It is insisted that a decree of reversal can not be reviewed, be•cause it is interlocutory, or not final.

The rule that an interlocutory order, which disposes of part only ■ of the questions made by the allegations and proofs, is not subject to review until final decree, is undoubtedly true. A decree, however, which passes upon and determines all questions made by the bill, answer, and exhibits, is a final decree, and may bo reviewed. To determine, therefore, whether a decree of reversal is a final 162] ^decree, depends upon the fact whether the decree of reversal ■ determined all the questions made by the bill of review. In the •case before us, the bill of review filed by Anderson and Sturges, in the court of common pleas of Hamilton county, stated, by reference, the original bill and the proceedings thereon, the decree, and the points in which the petitioners conceived themselves aggrieved by it, and the errors upon which they sought to have it reversed. The questions made by the bill of review were, whether there were errors in the decree of the common pleas. This was the whole scope of the bill, and the only questions which the court could decide. The .action of the court upon the bill of review ended when they pronounced the decree of reversal. Under the bill of review, the court could take no action whatever in the original cause; for, if the court of common pleas, or the district court, proceeded after the reversal ■of the decree of the court of common pleas, they did so in the original suit, and not on the bill of review. And if this court, after the reversal of the decree of the court of common pleas, had made any orders or decree affecting the rights of the parties under the original bill filed in the court of common pleas, those orders and that decree must have been made in the original cause, and not on the bill of review; for the latter had done its work and determined the questions — -and the only questions made under it. But in answer to this it is said that, although the questions made by the allegations in the bill of review were determined and finally passed upon by the reversal of the decree, yet, inasmuch as further proceedings may be had under the original bill pending in the court of common pleas, the decree of reversal in the Supreme Court becomes a kind of interlocutory order in that case. I deem it a sufficient answer to this to say, that the decree of reversal was not made upon the 168] original bill filed below, *nor will the decree hereafter made below be made upon the bill of review.

It is only by mixing the two cases together, and treating them as one,-and by calling the orders and decree hereafter made in the-original suit, as made also upon the bill of review, that this course-of reasoning can be maintained.

Independent of any judicial authority, it seems to me that a decree reversing a former decree comes within the settled definition of a final decree.

There is no authority to the contrary.

In England, upon bill of review, the defendant pleads the decree, and demurs against opening 'its enrollment. If the demurrer is-allowed, it has all the effect of confirming the decree, and terminates the suit. And so, if the demurrer is overruled, its effect is to reverse the decree. 3 Dan. Pr. 1732. On arguing the demurrer, the-original petition and exhibits can not be read; but after the demurrer is overruled, the plaintiffs are allowed to read the bill, or answer, or any other evidence, as at a rehearing; the cause then being open for a rehearing. Catterall v. Purchase, 3 Swanston, 290. Upon the reversal, therefore, of a decree in England, the original cause proceeds, as in this country, to a further hearing, and to further orders, and final decree; so that it is manifest that-the decree of reversal by the same court which proceeds with a rehearing and a final decree, is as much interlocutory in its nature as a decree of the Supreme Court of Ohio reversing a decree of the-court of common pleas is interlocutory to a final decree by the-court of common pleas after such reversal.

The law upon the question before us is thus stated in the English books of chancery pleading and practice: “ If upon bill of review a decree has been reversed, another bill of review may bo brought upon the decree of reversal. If the bill is brought to review the reversal of a former decree, it may *pray that the [164 original decree may stand.” Mit. Pl. 88; Daniels Pr. 1725, 1729; Adams Eq. (Perk, ed.) 881, 883; Cooper’s Eq. Pl. 93; Cooper cites Ch. Pr. 633; Redesd. Tr. Ch. Pl. 79. The same rule is stated in Story’s Eq. Pl., section 418, thus: “A bill of review may be brought after one bill of review already filed; as if upon bill of review a decree has been reversed, another bill of review may be brought upon the decree of reversal.”

The first case cited by elementary writers is Neal v. Robinson, which was decided in 1683, and is simply referred to in Dickens’ Reports by giving the volume of the chancery register and folio-where the ease is to be found.

It'is said that these elementary writers are not sustained by .Dickens’ Reports, inasmuch as he has not reported the case. We have not access to the register containing the case of Neal v. Robinson. The English elementary writers, however, had an opportunity to consult the record of • the case referred to. But the eleme.ntary writers are themselves authority upon the subject; especially such writers as Lord Redesdale, and Justice Story, and .authority, too, of the highest character upon this particular ques"tion; for it is hardly possible that a principle like this should have remained for more than one hundred years in the text-books of every writer, English and American; should never have been overruled by any court in England or the United States during all that time; should never have even been questioned by any counsel in any case, and yet not be in accordance with the usages and practice of courts of chancery. I feel constrained to believe that the reason why elementary writers have always stated the law uniformly upon this subject, and why the learned and industrious counsel in this important cause and the members of this court have been unable to find a single case as a precedent for their decision, is because the-principle was never before questioned.

*The reversal of a mere money judgment at law, is generally much less serious in its consequences to parties, than the reversal ■of a decree, which.deals with and settles complicated rights aüd interests growing out of trusts, partnerships, and equitable estates in land. If an error is committed in the reversal of a money judgment, a party may be restored to his rights by another judgment. But interests intervene and changes take place under decrees which may render it vital to the rights of parties that a decree erroneously reversed should be reinstated. Hence upon setting aside a decree of reversal, a court of chancery may decree that the original decree •shall stand; a remedy which courts of law can not in general afford, .■and which inasmuch as they give remedies only in money seems unnecessary. Hence to reason- from any analogy between writs of •error and bills of review to sot aside a decree of reversal does not •satisfy my mind that a bill of review to reverse a decree will not lie in chancery.

But if there be any analogy between writs of error and bills of review, it is conclusive against the principle announced by the •majority of this court, in the present case; for nothing is more ••common £han to review, by writ of error in this court, a judgment of the district court which has reversed a judgment of the court of common pleas. Thus, in the case of Chapman v. Weimer et al., 4 Ohio St. 483, the judgment of the court of common pleas had been reversed, and a new trial in the common pleas ordered by the district court; and then a petition in error was filed in the Supreme Court to reverse the judgment of reversal of the district court; and the judgment of the district court was reversed, and the judgment of the common pleas affirmed, notwithstanding the new trial pending in the common pleas under the order of reversal of the district 166] court; presenting the same apparent embarrassment *which the majority of this court now feel in the case before us; and the judgment" of reversal of the district court being quite as interlocutory in its nature and effect as a decree of reversal. So, in the case of Follett v. Buyer, 4 Ohio St. 586, the court of common pleas had given judgment for a set-off, and the district court being of the opinion the set-off should not be allowed, on error reversed the judgment. This last judgment was then reviewed, on error, in this court, and reversed5 and the original judgment affirmed. See also Lewis v. Eutsler et al., 4 Ohio St. 354; Huntington & McIntyre v. Finch & Co., 3 Ohio St. 445.

The case of Strader v. Byrd, 7 Ohio, 184, is cited as having something to do with the question before us.

In England, after two concurring decrees, a bill of review will not be entertained.

The case of Strader v. Byrd is an "affirmation of this English doctrine, and is sanctioned by the same rules and the same authorities, which permit a bill of review in the case now before us. I do not, therefore, perceive the. application of the case of Strader v. Byrd; nor do I perceive how the statutory remedy, by certiorari, has any analogy to the present question.

It is said that great confusion would arise from the prosecution of the present bill, while the court below are proceeding in the original ■cause. The same objection would be equally satisfactory against the prosecution of a writ of error, upon a judgment.of the district court reversing a judgment of the common pleas, and remanding the cause for a new trial, Or prosecuting a writ of error upon a judgment, while ■the judgment creditor was proceeding by bills in chancery and attachment against the debtors of the judgment debtor, and suing to judgment and execution the special bail. But what is the law in all 167] *sueh cases? If the judgment is reversed, every superstructure reared upon it falls. So here, if the decree of the common pleas is made to stand, and the decree of reversal held for naught, the proceedings after the reversal end.

If a hill of review to reverse the decree of reversal, and to reinstate the original decree of the common pleas, is prosecuted after a final decree shall hereafter be pronounced below, will that relieve the case of any confusion or embarrassment ? Titles to real estate have been canceled by the reversal of the decree ; and if the court of common pleas now proceed to final decree on the original action, and titles are acquired thereunder, will a bill of review to-reverse that decree, or the decree of reversal of this court, and reinstate the old reversed decree, make these proceedings less vexatious, or rights of property more secure ?

But it is said by counsel that we can not review our own decree-of reversal, because the papers in that case have passed from the' control of this court.

A bill of review, by the English practice, sets forth the original bill, answer, exhibits, testimony, orders, and decree. The practice in this state is to make the original papers a part of the bill of review. This practice, adopted for the purpose only of saving costs-to suitors, can not change the remedies of the parties or the jurisdiction of this court. Upon the reversal of a decree upon a bill, of review, the record here should contain all that the English practice requires; or, if no record be made, the papers are as much under the control of this court as when the original bill of review was filed.

This case was before this court at their December term, 1855. A motion was then made to dismiss the bill, on the ground that the-court had no jurisdiction to entertain it. When that motion was-argued counsel insisted, as they do now, that a decree of reversal 168] is not in its nature final. No *new arguments have been urged at the present hearing. The court then considered the question, and were of the opinion, and for the reasons which I have now stated, that a decree of reversal could be reviewed, and was not in its nature interlocutory, but final. But the question was deemed of so little importance that the judge, to whom was assigned the-delivery of the opinion of the court upon that motion (4 Ohio St. 690), has not noticed it. What was deemed then an incidental question, and decided against the defendants in error, nowi’ules the: case the other way, and is armed with judicial authority.  