
    George C. Coates v. The Chillicothe Branch of the State Bank of Ohio et al.
    1. The power conferred upon courts by section 534 of the code, to vacate or modify their own judgments or orders, at a term after which they were rendered, for fraud practiced by the successful party, does not abridge the right to maintain an original action impeaching a judgment, or decree, for fraud.
    2. Where a petition impeaching a decree for fraud, seeks relief which could not be obtained by a retrial of the case in which the judgment or decree was rendered, it will be regarded as a civil action, and not a proceeding under said section; and an appeal may be taken in suck action as in other cases.
    Petition in error to the District Court of Athens county.
    On the 6th day of April, 1868, George C. Coates filed, in the Court of Common Pleas of Athens county, his petition against the Chillicothe Branch of the State Bank of Ohio, the State of Ohio, and Eliakim H. Moore, setting forth the following state of facts: That, in 1850, the Chillicothe Branch Bank filed its petition, in the Court of Common Pleas of Athens county, against John Coates, Moses R. Bartlett, Jacob May, and William H. Douglas, stating that the Chillicothe Branch Bank had recovered two judgments in Hocking county against John Coates, M. R. Bartlett, and Jacob May, one for $11,285.27, and the other for $4,058.32; that, on the 30th day of August, 1850, executions, issued on said judgments, were levied on lands in Athens county, as the property of John Coates, viz: on section No. 36; also, 165 acres in section Nos. 9 and 15, lot No. 59 ; and 193 acres in lot No. 61, in Athens township and Athens county; that, at the same time, an execution in favor of William .Douglas was levied on the same land; that said execution creditors had been unable to find the evidence of John Coates’ title to said land; that the prajmr of the petition was, that John Coates might disclose his title to the land, and that his interest therein might be sold to satisfy said judgments according to their priority of lien; that, in 1852,, the said Branch Bank filed an amended-petition, making Arthur Coates and said George O. Coates parties, averring that they claimed to own said lots numbers 59 and 61, and praying that they might disclose their title thereto; that John Coates answered, denying that he ever had any title-to said lots 59 and 61; that, before the amended petition was filed, said George C. Coates had gone to California; that he was served by publication in 1858; that John Coates died in 1864; that nothing was done in the case until 1866, when the ease was revived against the heirs of John Coates, deceased, and the Athens Branch of the State Bank of Ohio-was made party, with the averment that it had a lien on said land; that Arthur Coates answered, claiming to own lot No. 59; that George C. Coates failed to answer; that, in 1867, an attorney of said court, at the request of the agent of said banks, without authority from said George C. Coates,, fraudulently appeared in said case as the attorney of said George C., and filed an answer for him, claiming the ownership of lot No. 61, and denying that John Coates had any title thereto.
    It was further averred in the petition that George C., Goates was in possession of said lot No. 61, and had been for more than twenty-one years prior to the time of the commencement of the suit, claiming title thereto; that in 1839 John Coates assigned to him a leasehold estate therein, and that he acquired a fee-simple estate in said lot No. 61, which Is worth fifteen thousand dollars.
    It is also averred that said Moore, for himself, and as agent of said banks and president of one of them, paid said attorney six hundred dollars, to appear in said case for George C. Coates, answer for him, and consent to a decree against him ; that said Moore agreed with Arthur Coates to give him nine thousand dollars for lot No. 59, which, by consent was to be decreed to Arthur Coates ; that accordingly, in 1867, the court rendered a decree, by consent of tall the parties, finding the facts in favor of the plaintiff in the case, except as to lot No. 59, which was found to belong to-Arthur Coates, and John Coates was found to be the owner of lot No. 61, with au equity therein in favor of George C. Coates to the amount of $2,400; that thereupon, by consent of all parties, the court ordered lot No. 61 to be sold, and. that the proceeds be applied, first, in payment of the costs;. secondly, the amount found due George C. Coates, and, if the bank became the purchaser, by agreement, it was decreed to have a credit on the amount due George C. Coates of six months on one-half, and of twelve mouths on the remainder, without interest; and, by agreement of parties,, the bank was ordered to pay the said attorney of George C. Coates.
    It is further averred that said attorney had no authority from George C. Coates to appear as his attorney in said case,, nor to consent to said decree; but he avers that he had other attorneys employed to resist said decree, whom the-court refused to hear, and that said Moore, acting as before stated, fraudulently procured said attorney to appear and. consent to said decree, with full knowledge that George C. Coates was the owner of said lot, and had a good defense to said suit.
    It is further averred that said Moore, as such agent, immediately caused an order of sale to issue on said decree,, and caused said 193 acres to be appraised at $10,000; and, on the sale, became the purchaser thereof at two-thirds of the appraised value, a sum greatly below its true value,’and sold ninety acres thereof to. the State of Ohio-for a sum paid by the citizens of Athens much larger than he paid for the whole; that said Moore had full knowledge of the equity of said George C. Coates to impeach said decree; that he conveyed said ninety acres to the State of Ohio for the location of a lunatic asylum, without any consideration paid by the state; that the state, through its trustees (said Moore being one of them), had notice of all the rights of the said George C.. Coates.
    The petition concludes as follows:
    
      “Therefore the said plaintiff’ prays that a summons may Issue against said defendants, and that an injunction may be granted restraining said defendants from turning the family of said plaintiff out of the possession of said premises ; and that, on the final hearing and trial of this ease, the decree of said court, so entered, may be vacated and set ¡aside, and said plaintiff let in to try his title to said premises; and that he may, by the decree of the court, be quieted in his possession of said lands, and the title be, by such decree, reinvested in him, and said E. H. Moore and .the said State of Ohio, be adjudged to release their title to the same to said plaintiff, and for such other and further relief as equity may require.”
    The Chillicothe Branch Bank and E. H. Moore answered the petition, denying, substantially, all the averments in the petition, and set up, by way of defense, that, at the time the Chillicothe Branch Bank brought its suit against John Coates and others, he was the owner of lot No. 61, and set forth the facts showing how he obtained title thereto; that, .-at first, he filed an answer in the case, claiming to be the owner, which was afterward withdrawn by reason of a fraudulent combination with George C. Coates, whereby, for the purpose of defrauding the creditors of John Coates, long after the commencement of that suit, a pretended assignment of John Coates’ title was executed to George C. Coates, and dated back for the purpose of defrauding said creditors; that George C. had no valid title to the land, and that his possession thereof was only as a tenant of John Coates, until after the commencement of said suit.
    Upon these pleadings, at the May term, 1869, the case was tried upon the evidence, and the court found the answer of the defendants to be true, and that the equities of the case were with them, and thereupon dismissed the petition. .The plaintiff' gave notice of appeal, and duly filed his bond therefor; thereupon the case went to the District Court, where, at the September term, 1869, the defendants filed a motion to dismiss the cause, because there is no provision of law under which it could be appealed from the Court of Common Pleas to the District Court, and the Court sustained said motion, and ordered and adjudged that the appeal be dismissed. To reverse this judgment of the District Court, a petition in error is prosecuted in this court.
    
      Simeon Nash, with whom were Golden & Townsend, for plaintiff in error:
    The case in the Common Pleas was a petition in equity to vacate a decree in chancery in the same court, on the ground that it was obtained by fraud on the part of the purchaser of the land, who bad become the owner of the judgments set forth in the creditor’s petition.
    This ease was, on our part, partially tried in the Court of Common Pleas, and notice of appeal given by us and perfected. In the District Court a motion was made by the defendants to dismiss, on the ground that this was a petition in error under section 534 of the code (2 S. & C. 1112), which motion was sustained, and the appeal was dismissed,' and this proceeding is brought to set aside that order and reinstate the case in District Court.
    This is not a petition in error, and never was supposed to be by the plaintiff. It was prepared and filed as a bill in equity to set aside the decree as obtained by fraud, and secure a reconveyance of the land. A petition in error would only secure a vacation of the decree, and leave the sale to stand. This would be no remedy for us. ¥e want the laud; and the petition charges the whole fraud on the purchaser. Can he secure the fruits of his fraud, because he is not a,party to the original suit, though he was the person to whom the money was going. The form of the petition and the subsequent service of summons and proceedings show such to be the fact. It has no resemblance to a petition in error. The code does not provide for this case. Sub-section 4 of section 534 provides that a judgment may be vacated “ for fraud practiced by the successful party, in obtaining the judgment or order.” The fraud here charged was not practiced by a party, but by one not a party.
    This question was not made in the court below. A full answer was put in, and the case tried on our part as a bill in equity. The defendants understood such to be its character, for we had dismissed a petition in error, under section 534, because the remedy was inadequate. If this question was to have been made, it should have been made in limine. There were here improper parties, if it was a petition in error. An answer is a waiver of all questions of jurisdiction, so far as another court has jurisdiction. Harte v. Hallet, 2 Hay. 136; Cumming v. White, 4 Blackf. 356; Ludlow v. Simond, Caine’s Cas. in Error, 1; Hawley v. Cramer, 4 Cowen, 717; Leroy v. Pratt, 4 Paige, 77; Bradley v. Root, 5 Paige, 632; Woolcut v. Sullivan, 6 Paige, 117; Gable v. Miller, 10 Paige, 627; Underhill v. Van Cortlandt, 2 Johns. Ch. 339; Rice v. Smith, 1 Ohio, 124; Nicholson v. Pim et al., 5 Ohio St. 25; Miller v. Furze, 1 Bailey Ch. 187; Pierce v. Alsop, 3 Barb. Ch. 127; Cockrell v. Warner, 14 Ark. 545; Hadford v. Chipman, 21 Conn. 488; Bates v. Conrow, 3 Stock. (N. J.) 137.
    The court below held that the remedy provided in section 534 was the exclusive remedy in a case like the one made in the petition. This is not law. Indeed, this court,, in the case of Long v. Mulford, 17 Ohio St. 484, has clearly decided the reverse of that. White, J., says: “Under the-former practice, they w’ould have had the right, on discovery of the wrong, to impeach the decree by original bill; and what would have been a good cause of action to sustain an original bill is a good cause of action under the code.” Ib. 507.
    In the case of Lockwood v. Mitchell, 19 Ohio, 448, it was decided that in case of a decree obtained by fraud and circumvention, by the defendant, equity grants relief against judgmen ts and decrees obtained by fraud,, as ivell as against deeds and other writings. Reigal v. Wood, 1 Johns. Ch. 401; Williams v. Fowler, 2 J. J. Marsh, 405; Caldwell v. Giles, Riley Ch. 120; Burch v. Scott, 1 Bland, 112; Fdmondson v. Mosely, 4 J. J.Marsh. 497; Wright v. Miller, 1 Sandf. Ch. 103; Dilly v. Barnard, 3 Gill & J. 170; 1 Mod. Ch. 300; 1 Sch. & Lef. 205; L. R., 3 Ch. Ap. 203; Patch v. Ward, 1 Story’s Eq. 256; 9 Ohio, 178; 4 Ib. 469; 6 Ib. 80; 2 Peters’ Cond. 518; 3 Johns. Ch. 351; 3 Barb. S. C. 616; 32 Miss. 406; 3 Mil. Ch. 292; 19 Conn. 84; 20 Ib. 544.
    This remedy existed before the code, and, by the rule laid down by White, J., exists now. This is also the true rule to be applied to the construction of the code. Besides, it has always been held that a new remedy provided at law for a .remedy before given in chancery, does not- take away the chancery jurisdiction. Lane, J., says, in Green v. Green, 66 Ohio, 429, that “ where a class of cases are the object of -chancery jurisdiction, that jurisdiction is not taken away because courts of law subsequently administer a remedy.” S. P., 1 Ohio, 235, where held that the remedy by seire facias on a mortgage given by statute did not take away 1he jurisdiction of a court of equity to foreclose a mortgage by bill in equity. S. P., 28 Ala. 629; 4 Sneed, 440; 7 Foster, 503; 1 Md. Ch. 151; 10 Barr, 273; 23 Miss. 236; 10 B. Mon. 40; 5 Cal. 406; 14 Ill. 375; 3 Peters, 210; 7 Wallace, 427; 21 Conn. 488; Johnson v. Johnson, 30 Ill. 215.
    
      De Steigner & Jewett, for defendants in error:
    The relief sought by Coates being predicated upon fraud of the successful party to the original suit, in an application to the court rendering the decree complained of, if either one of the following propositions be found to be true, there was no error iu the action of the District Court in dismissing the case as not appealable:
    I. The remedy given by sections 534 and 536 of the code .is a special proceeding, and is the exclusive remedy.
    II. The petition of Coates was a petition under sections 534 and 536 of the code, whether there was or was not another remedy.
    1. Upon the first proposition.
    
    Although the proceedings in chancery were instituted 'before the adoption of the code, the provisions of the code ¿apply to regulate and determine the character of the litigation instituted by Coates’ petition. Code, sec. 602; Myers v. Myers, 6 Ohio St. 221.
    It follows that if the code does not regulate and govern-the proceedings to vacate, it is because either Coates’ petition is the old remedy by bill of review, preserved by section 533 of the code, or an original bill to impeach a decree-for fraud claimed by Coates’ counsel to be preserved to them by the force and effect of section 603 of the code.
    That it can not be held to be the latter, results from the-fact that under this provision (sec. 603, Code), the old remedy is given only to prevent a failure of justice; or, in* other words, it was designed to supplement the code with the old practice, only where the code did not furnish a-remedy, and the code does expressly provide a remedy in this case by sections 534 and 536.
    Neither is the present proceeding within the exception-created by section 533, the old remedy by bill of review. The petition does not purport to be a bill of review, and,, if a bill of review, would not and could not subserve the-purpose proposed by it. Story’s Eq. Pl., sec. 403; 3 Dan.. Ch. Pr. 1727, note 1.
    Further: “ Fraud in procuring decree can not be relieved' against by bill of review, but the decree must be impeached by original bill charging fraud.” Cooch v. Cooch, 18 Ohio, 146.
    Prior to the code a court could not modify or vacate its-judgments after the term at which they were rendered, as a matter of discretionary control, and resort was necessarily had to the extraordinary ¡powers of a court of equity. Botkins v. Comm’rs of Pickaway Co., 1 Ohio, 375; 3 Ohio St. 445.
    Thus the old remedies have been swept away by the-code, with the exception of the bill of review; and the-code has substituted in lieu of the old remedies its own creations, viz., one civil action and numerous special proceedings; still the design undoubtedly being that the volume of remedies under the n.ew system should be as broad and complete as under the old system.
    
      We must then find the remedy in the code of civil procedure. What is it? Is it a special proceeding? or the civil action of the code, or both?
    This litigation is undeniably after judgment, for it seeks the vacation and complains of a judgment on the ground that it was obtained by the fraud of the successful party.
    
    The code provides a remedy, viz., by section 534: “A court of common pleas or district court shall have power to vacate or modify its own judgments or orders after the term at which such judgment was rendered or order was made.” . . .
    Subdivision 4: “For fraud practiced by the successful party in obtaining the judgment or order.”
    Here is a plain grant of power, not before possessed by courts in this state, enabling them to administer a remedy that before was only to be obtained by invoking the extraordinary powers of a court of equity. 18 Ohio, 146; 19 Ohio, 448; 1 Ohio, 375.
    Thereby plainly manifesting a design to change the law on this subject, and not to leave the law as it stood before the code.
    This power is not only explicitly given, but the mode of invoking it is explicitly pointed out, viz., by code, section 536.
    Section 537 permits the court to try and decide upon the grounds to vacate or modify, before trying and deciding upon the validity of the defense or cause of action.
    Section 538 prohibits the court from vacating a judgment until it is adjudged that there is a valid defense or cause of action in favor of the party complaining.
    Section 539 provides that the party seeking the relief “may obtain an injunction” in aid of his application.
    Section 541: “Proceedings to vacate or modify a judgment or order for the causes mentioned in subdivision four, five, and seven of section 534, must be commenced within two' years of the time the judgment was rendered or order made,, unless the party entitled thereto be an infant, married woman, or person of unsound mind, and then within two years after removal of such disability.”
    
      Section 542 extends the same provisions to Probate and Supreme Court, and fixes the same limitation.
    Here, then, is a fall and complete remedy furnished by the code for the modification or vacation of a judgment obtained by fraud on the part of the successful party.
    If the remedy thus given is not the exclusive remedy, it is because the ordinary civil action may he resorted to and forms a concurrent remedy with it. If we apprehend the argument of opposite counsel correctly, it is that ¡section 536 confers a remedy at law for a class of causes theretofore cognizable only in a court of equity; that the conferring of jurisdiction on a court of law does not oust the jurisdiction theretofore possessed by courts of equity; consequently, the old remedy, to wit, an original bill to impeach a judgment or decree for fraud, is still open to them .as a concurrent remedy.
    While the principle of law thus set forth was true in its application to our old system of procedure, when equity and law were administered by distinct tribunals, and under different laws of procedure, it has no application to the present case. If intended by counsel to be thus applied, it claims too much. It would have the effect of preserving the old procedure in chancery in every case where, by the code, the court obtained cognizance of a cause that prior thereto was only cognizable in a court of equity.
    The civil action is not a concurrent remedy with that given by section 536 for fraud by the successful party in obtaining a judgment.
    The code creates but one civil action. Sec. 3, Code. 'To aid, or as supplementary, in the administration of remedies, it creates various special proceedings, such as arrest, .attachment, replevin, proceedings in aid of execution, petition in error, proceedings to vacate and modify judgments, etc. Some of these, as replevin and attachment, are an incident to a civil action, progressing at the same time and .auxiliary to it, indicating that although the civil action bad swallowed up all other actions, yet there were some limits in the law of procedure to its application. What are these limits ? We claim them to be these: The civil action is designed to carry forward litigation to judgment, aided in some instances by special proceedings, as in replevin and attachment; but for litigation after judgment, various special proceedings are provided. For such litigation, they .are the exclusive remedy, except where the civil action is specifically made a concurrent remedy. Code, sec. 515, 536, 458, et seq.
    
    A writ of error “under the former procedure of this state” was an adversary suit — a new suit.” Hutchins, Ex’r, v. Hutchinson et al., 15 Ohio, 301.
    It was, in its nature and character, as much an original suit as the original bill to impeach a judgment for fraud. The provision of the code to supply its office is a special proceeding. But that fact does not entitle the party to resort to the old remedy, viz., a writ of error. For, “ writ of error issued after the code took effect can not be sustained.” Butler et al. v. Baker, 2 Ohio St. 326. Nor may-civil action of the code be resorted to as a concurrent remedy. In section 458 of the code, and the following sections of that chapter, a special proceeding is created in aid. of execution.
    The ground thus occupied was a head of equity jurisdiction, as well defined as that exercised in impeaching a judgment for fraud, viz., discovery and the subjecting of equitable assets to the payment of a judgment. Yet, in this instance, the precaution is taken to preserve the remedy by action — to make the civil action a concurrent remedy.
    Evidently the codifiers believed that it was necessary, in order to make the civil action a concurrent remedy with the special proceeding, to so provide affirmatively, or otherwise the special proceeding would be the exclusive remedy.
    Such, evidently, were the views of the distinguished author of Nash’s Pleadings and Practice. In commenting on subdivison four of section 534, be says: “ The fourth reason would, have been the foundation of a bill in chancery heretofore, and the proceedings under it must now be substan
      Hally the same” Nash’s Pleadings and Practice, 699, 700; and see Judge Brinkerhoff’s opinion, 12 Ohio St. 172; Scott’s, 6 Ohio St. 70.
    If the civil action is maintainable, then the limitation ©f the cause of action, if prosecuted thereunder, is four years (subdivision 15 of section 12, Code); while the limitation in the special proceeding is two years. Sec. 541.
    If the party complaining was under disability at the time of the commission of the fraud, the civil action could he brought at any time within four years from the determination of disability (Code, sec. 19), while the special proceedings could only be brought in two years from disability. Code, sec. 541.
    If the procedure is by civil action, the trial and judgment therein disposes finally of the whole case, while in the special proceeding the judgment would only be that the judgment complained of be vacated, and the party let in to try his case in the original action. This feature in the present case would work out important modifications-of the rights of parties. The original cause having been a cause pending at the adoption of the code, if the judgment is opened up under the special proceeding of section 536 of the code, the cause would then come on to be re-fried under the old chancery practice. If this is held to be the civil action of the code and an appropriate remedy, then not only the question of fraud, but the question of Coates’ title, will be tried and finally decided therein under the rules prescribed by our code. George Coates’ testimony, not admissible if the cause was retried in the chancery proceedings (Code, sec.' 602; 4 Ohio St. 583), becomes-admissible for all purposes in the trial of the civil action.
    If the remedies are concurrent, it has the effect of giving the party applying or complaining for any of the causes mentioned in section 536 (all equitable in their nature), where the original suit was in chancery, the election, whether he will have the cause retried according to- the old law of procedure. If it suits his purpose to become a. witness in his own behalf, he can do so by electing to proceed by the civil action; if it better suits his purpose to^ close the mouth of the opposite party from testifying, he can elect to proceed by the special proceeding, thereby causing the questions involved in the original cause to be retried therein on their merits, according to the old law of procedure. And quaere? Can not the party,by introducing new parties, as has been done in this case, get rid of and exclude the depositions of deceased witnesses taken in the original cause by proceeding in civil actibn? If so, it would affect vitally the present case. 19 Ohio, 460; 19 Ohio, 146; Code, sec. 349. If the case is tried by the special proceeding, there is no appeal (12 Ohio St. 169) while if a civil action, it is the subject of appeal.
    If the civil action is a concurrent remedy, the Court of Common Pleas may vacate and set aside or modify the-judgment of the District Court or of the Supreme Court for fraud or for casualty and misfortune; while if the special proceeding is the exclusive remedy, the proceeding must be in the court rendering the judgment complained of.
    If the civil action existed as a remedy independent of the provisions of sections 534 and 536 of the code, and it. must do so if a remedy, why the necessity or the use of providing the remedy given in those sections? A remedy more limited in point of time, and not more broad than the-civil action would have been in any particular. There is no conceivable motive for, or benefit to be derived from, it.
    The special proceeding conferred by sections 534 and 536 is a complete and adequate remedy for every instance of fraud that may be perpetrated by a “successful party” in the obtaining of a judgment.
    
      First. The grant of power conferred by section 534, to-vacate for fraud is as broad as the practice and commission of fraud can be in obtaining a judgment.
    
      Second. The remedy given by section 536 is neither narrow, inadequate, nor a subject of choice by the party. The language being, “ The proceeding to vacate . . . shall 
      
      be by petition, verified by affidavit,” etc., the same mode as provided for the civil action.
    Here, then, is a grant of power given, as broadly as the practice of fraud in any event can become, to vacate a judgment therefor, and a remedy pointed out, and made imperative, to wit, by petition. The remedy must be held to be as broad as the power, if the provisions creating it will admit of its being made so. Every correct principle of construction so requires.
    The form of the remedy given is a special proceeding (in its nature requiring parties and pleadings), but no special rules of pleadings are provided to govern the petition, and no special rules of parties are given as to the special proceeding.
    Now, although the rules of pleadings prescribed by the code are termed “pleadings in civil action” (Code, sec. 83), and the rules in regard to parties are treated of under the name of “parties to civil actions” (title 3, Code), yet when the code requires parties to proceed in a special proceeding, that requires from its very nature the making of parties and the making up of issues by pleadings, and at the same time creates no special rule to govern the case as to parties .and pleadings, then the general rules as to parties and pleadings of the code, so far as in their nature suitable, must be held applicable to the given case and must govern; otherwise the legislature would be guilty of creating a proceeding requiring pleadings and parties, and without rules to govern and regulate in those particulars. Indeed, Judge Brinkerlioff says: “We must regard the proceedings to vacate by petition and set down the case again for trial as but an incidental part of the original action.” 12 Ohio St. 173. Why do not all rules of the code as to parties and pleadings become applicable so far as suitable?
    This admitted, all the alleged inadequateness and incompleteness of remedy by way of the special proceeding disappears, and it becomes at once as broad, ample, and complete a remedy as the original bill to impeach for fraud ever was, or the civil action of the code could be. 12 Ohio St. 169; 15 Ohio St. 460; S. & C. 1157, sec. 694; Code, secs. 35, 40, 137, 142; 16 Ohio St. 284; 17 Ohio St. 68; 9 Ohio St. 508. See also Wooley v. Wooley, 12 Ind. 665; McQuig v. McQuig, 13 Ind. 293; Kemp v. Mitchell, 29 Ind. 164.
    The provision of section 34 of the bankrupt act of 1867, authorizing a creditor to contest the validity of a discharge, created a special proceeding to impeach an order and judgment of a court for fraud practiced by the successful party, and there is no reason why, on general principles of law,,, such order or judgment might not have been assailed by an original bill to impeach it for fraud.
    Yet, the undeviating line of decisions, we believe, is that' this is not a concurrent remedy with an original bill to impeach for fraud, but is the exclusive and only remedy. Cory v. Ripley, 57 Maine, 69 (or in 2 Am. Rep. 19); The Ocean National Bank v. Olcott, 43 N. Y. 12.
    II. Upon the other proposition.
    
    If Coates could have resorted to the civil action of the code, as a remedy, he did not.
    
    
      His petition was a petition under sections 534 and 536 of the code, and is therefore not appealable.
    The petition dismissed predicates its demand for relief in effect on allegations to this effect:
    1. Coates had a complete defense to the chancery suit, and judgment was against him:
    2. That he was deprived of it by the fraud of the success- - ful party:
    3. The property in controversy had passed into possession partly of E. H. Moore and partly of the State of Ohio, by judicial sale had under the decree, under such circumstances that they took it burdened with Coates’ equities.
    The prayer of the petition was: “That an injunction may be granted restraining the defendants from turning the family of the plaintiff out of the possession of the premises, and that on the final hearing and trial of the case, the decree of said court entered may he vacated and set aside, and said plaintiff let in to try his title to said premises, and that he may be by the decree quieted in his possession. of said lands, and the title be, by such decree, reinvested in him, and said E. Ii. Moore and the said State of Ohio be adjudged to release their title to the same to the said plaintiff, and for such other relief as may be equitable.”
    The allegations of the petition above set forth, and numbered first and second, are precisely what are required shall be set out in the petition by section 536, while those under the third head were only introduced with the purpose of making E. H. Moore a party, thereby creating a “lis pendens” as to the property, until the vacation of the judgment, and prevent by that means its transfer to an innocent purchaser in the meantime. But Coates’ title to any relief depends entirely on sustaining the allegations we number first and second. If these are true, he was entitled to judgment. If these are not true, he can have no relief by virtue of the allegations we number third being true.
    But if any doubt could remain as to the character of the petition, the prayer is decisive of the question, viz., “ That •the decree of the court be vacated and set aside, and said plaintiff let in to try his title to said premises.”
    This is the gist of the prayer, and everything else asked for is but an incident to this relief. What was it Coates wanted to be let in to defend ? Certainly not the action or proceeding in which he was then complainant, but the chancery proceedings. The design of the pleader there was not to try the title of Coates to the premises in controversy in the proceeding he instituted, but to defend it in the original suit in chancery, and as a preliminary to that, and to enable him to do so, he desires that the “ decree of the court be vacated and set aside.”
    Now, Coates can not say this petition is an original bill to impeach a judgment for fraud, which would dispose of the questions on the first trial.
    Nor is there any force in the argument that the court should endeavor to construe the present proceeding-into one that would enable Coates to have the right of appeal. For appeal is not a right at common law, but only exists by statuory provisions, and the courts have always refused to exercise any equitable jurisdiction, or make any equitable construction, to enable the party to enjoy it; but he has always been required to bring himself within the strict letter of the law. 3 Ohio, 277; 6 Ohio, 33; 8 Ohio St. 199, 205.
    
      Grosvenor & Dana, on the same side:
    It may nót be wholly a waste of time to enlarge upon the proposition, that “ an appeal is not a right at common law, and only exists by statutory provision.” This proposition is not only true as given, but the courts have always construed these statutory provisions strictly; and refused to give a strained construction in order to carry a ease by appeal from one tribunal to another. McMicken v. Perin, 18 How. (U. S.) 507; Wylie v. Coxe, 14 How. (U. S.) 1; S. C., 15 Ib. 415; 6 Ohio St. 61.
   Day, J.

The question in the case before us is, whether it was one in which an appeal might be .taken from the final judgment of the Common Pleas to the District Court.

The statute provides for an appeal of all “civil actions” in which the parties have not the right to demand a jury trial. There is no question but that the right of appeal existed in this case, if it was a civil action within the meaning of the code. This is what the plaintiff claims it to be. On the other hand, the defendants claim that it was not an original action, but was merely a proceeding, after judgment in the case of the bank against Coates, to -vacate the judgment in that case, under the provisions of section 534 of the code; and, upon the authority of Taylor v. Fitch, 12 Ohio St. 169, was not appealable.

The power given to courts of record, by sections 534 and 542 of the code, to vacate or modify their own judgments or orders, after the term at which they were made, does not confer original jurisdiction; for they apply to judgments rendered in the District and Supreme Courts, in cases of which, under the constitution, they can only acquire appellate jurisdiction. The power thus conferred, then, is only that of further proceedings, for the causes enumerated, in an action after judgment; and are, therefore, merely special proceedings in an action, and are not an original action, or the “civil action” provided by the code. When,, therefore-,.the power conferred by these sections, to break .into an action after judgment, and obtain further proceedings therein, is all that is invoked by a proceeding, such proceeding can not be regarded as a civil action; and, therefore, is not appealable.

The power thus conferred upon courts to vacate or modify their own judgments or orders, does not necessarily imply a limitation of the right to impeach a judgment or decree by original action in a proper case; although, in such, cases, otherwise than by bill of review under section 533 of the code, the remedy must be by the civil action of the code.. Sec. 602.

But whether a civil action can be maintained under the-code, to impeach a judgment or decree for fraud in all cases where an. original bill in chancery for that purpose' might have been sustained before the code, it is not necessary to determine in this case; although the proposition is perhaps settled in the affirmative in Long v. Mulford, 17 Ohio St. 484, and' is so regarded by my brethren. But, however this may be, it is clear that in all-such cases, where the case is such that relief is properly sought, other than that which may be obtained in the case in which the judgment or decree is rendered, and the impeachment of the judgment or decree is only necessary to the further relief sought, an original action is the-proper remedy; indeed, it may be the only remedy. This must be so, especially where rights have intervened, since the rendition of the-judgment or decree, involving new parties, against whom relief is sought.

It is not questioned but that without the power conferred by section 534 of the code, a decree procured by the fraud of the successful party might be impeached by an original action. The question, then, resolves itself into' this: Was the case an original action, or a proceeding in an-action ? If it was the former, the case was appealable ; if it was the latter, it was not.

That it was not a proceeding in the action in which the-decree sought to be impeached was rendered, is clear, because a, case was made for relief that could not be obtained in that action. It related to rights that accrued after the-decree was rendered, and involved persons who were not-parties to that case. The relief sought was against such new parties, making a case not embraced in that. The injunction sought was not that which is provided for in proceedings under section 534 of the code, that of merely “ suspending proceedings” on the decree sought to be vacated, but was to restrain the new parties from turning the plaintiff’s family out of possession of the land in dispute. The case made recognizes the fact that the decree had been executed by a sale of the land to the new parties; and,, upon a charge against them of complicity in the fraud by which the decree was obtained, a decree is sought in the new case to compel a release of their title, to remove the-cloud from that of the plaintiff, and to quiet his possession of the premises.

It is true there is much in the petition, and in the prayer-thereof, that looks like an effort to open the decree sought to be impeached, for the purpose of a retrial of the- case. But the parties -in the two cases are different, and only that part of the decree affecting the plaintiff' is impugned. It was sought to impéach the decree only as a predicate to-the relief sought in this case, which was against those not parties to that, and whose rights were such that they could, only be invalidated by an original action. Indeed, it would seem that the case was tried in the Common Pleas upon that theory; for that court found “the answer of the defendants true, and that the equities of the ease were with them,” and therefore dismissed the petition.

The case was not a proceeding in an action ; but, in its; essential elements, was such that, if the decree complained, of had been rendered in the District Court, the relief thereby sought could only be obtained by ah original action brought in the Common Pleas.

We are constrained to hold that the case was a civil action, and was therefore properly appealed. This holding is sustained by the case of Long v. Mulford, supra, which is analogous to this case.

It follows that the District Court erred in sustaining the motion to dismiss the appeal. The judgment of that court must therefore be reversed, and the cause remanded for further proceedings.

Welch, J., having been of counsel, did not sit in the case.  