The amendment was offered at the argument before us under G. L. c. 231, § 125, whereby all powers of amendment possessed by the court below are conferred upon the full court. This power will not be exerted save in instances where justice seems to require it. The plaintiffs object to the allowance of the amendment but do not dispute the fact set up in the proposed amendment. If the case should · be decided here adversely to the defendants, they could offer the same amendment to the answer in the Superior Court after rescript and before final decree, and under the authority of the decisions already cited it well might be allowed and become the basis of the final decree, and thus all that had been decided on the appeal would go for naught so far as concerns the ultimate rights of the parties. It seems a wiser administration of justice to act under G. L. c. 231, § 125, and consider the matter at once. The motion to amend the answer is allowed.1

...

Decree affirmed."

HAYNES v. GREENE.

SUPREME COURT, RHODE ISLAND. 1926.

48 Rhode Island 38.

BILL IN EQUITY.. Heard on petition of respondent for leave to present new evidence under Gen. Laws, cap. 339, sec. 30. Granted.

SWEETLAND, C. J. The above entitled cause in equity is pending in this court upon appeal from the final decree of the Superior Court. It is before us at this time on the respondent's motion in which he sets out that, at the trial of the cause in the Superior Court, by reason of accident and mistake he was deprived of the testimony of one Edgar E. Mowry, which testimony was material and relevant to the issues in the cause and which, if it had been presented at the trial and believed by the Superior Court, might have caused that court to come to a different conclusion. Relying upon the provisions of Section 30, Chapter 339, Gen. Laws 1923, the respondent moves for leave to present said testimony before this court that the same may be considered in the determination of the appeal.3

1 The remainder of the opinion, dealing with the merits of the case, is omitted.

2 See Reeder v. Sayre, 70 N. Y. 180, 190 (1877); Tinker v. Sauer, 105 Ohio St. 135, 142-144 (1922) (allowing amendment on appeal because a "chancery case" Ohio has been a code state since 1853). Compare Livingston v. Livingston, 246 N. Y. 234 (1927) (change in cause of action).

3 This statute provides as follows: "No new testimony shall be presented to the supreme court on appeal [in equity], but in case of accident or mistake, or erroneous ruling excluding evidence in the superior court, the supreme court may grant leave to parties to present further evidence, and may provide by general rule or special order for the taking of such evidence."

We have examined the affidavits filed in support of the motion and also the counter affidavits introduced by the complainant. We are of the opinion that justice requires that the respondent be permitted to have the testimony of said witnesses before us as part of his evidence upon the appeal.

In granting leave for the taking of new evidence to be used in this court upon an appeal in equity, the court in each case will make such special order as appears to it to be appropriate in the circumstances of the case.

It is ordered that on December 15, 1926, at the time of hearing the appeal upon its merits, the respondent may present Edgar E. Mowry as a witness for oral examination before us upon the issues in the cause, and at that time the complainant may present such witnesses as she may have for oral examination in rebuttal.1

DISMUKES v. STOKES.

HIGH COURT OF ERRORS AND APPEALS, MISSISSIPPI. 1867.

41 Mississippi 430.

APPEAL from the Circuit Court of Noxubee county. Hon. H. W. Foote, judge.

HANDY, C. J., delivered the opinion of the court.

This case is submitted on the motion of the appellee to dismiss the appeal for want of jurisdiction.

The record shows that, in virtue of certain special acts of the legislature, the appellee filed a petition before the board of police of Noxubee county, against the appellants, praying that certain section lines of lands in which they were interested be opened; that the prayer was granted and said section lines were ordered to be opened. From that order, the present appellants prosecuted an appeal to the Circuit Court of Noxubee county, and on the hearing in that court, the order of the board of police was affirmed, and from that judgment of the Circuit Court the appellants have taken this appeal.

The ground of the motion to dismiss the appeal here is, that the statute makes the judgment of the Circuit Court in such cases final, and that this negatives the right of appeal. Rev. Code, 419, art. 33. It is not contested by the appellants, that such is the positive pro

1 See Adolph Ramish, Inc. v. Woodruff, 2 Cal. (2d) 190, 204–208 (1934); 36 Yale L. J. 570 (1927) (commenting on the principal case). See also Riddell, "The Judiciary and the Administration of Justice in the Province of Ontario," 5 A. B. A. J. 639, 646–647 (1919) (amendments and evidence on appeal).

vision of the statute. But it is insisted, on their behalf, that the right to prosecute an appeal or writ of error in this court, upon any judgment or decree by which any part is aggrieved, is a right to which he is entitled under the constitution which establishes this as the Court of Errors and Appeals of the State; and that the act of the legislature denying this right is, to that extent, unconstitutional.

It is to be observed that the constitution merely confers upon this court, in very general terms, "such jurisdiction as properly belongs to a Court of Errors and Appeals." Art. 4, § 4. It does not attempt to define the limits of that jurisdiction, nor to prescribe the cases to which it extends, nor the mode or circumstances in which it may be exercised. The object of the framers of the constitution was simply to establish an appellate tribunal, whose jurisdiction should be confined to such matters as properly belong to a Court of Errors and Appeals; and when we come to determine what matters "properly belong to a Court of Errors and Appeals," we find no light thrown on the subject by the provisions of the constitution in relation to the powers of this court, and have to refer for the solution of the question to other sources than these provisions of the constitution. The subject is one depending on general considerations of public policy, which, for the most part, must be determined by the legislature, subject to such restrictions on their general powers as are contained in the constitution. For this reason, by universal acquiescence, the power is conceded to the legislature to prescribe the forms of actions and the modes of proceeding in courts, and to limit the cases and the extent to which certain remedies may be pursued. The only exception to this power is where specific rights are secured to a party in the constitution, with a remedy indicated for their protection; in which case the right and remedy thus guaranteed would be beyond the legislative power. But generally all these questions pertain to the remedy, and are subject to the power of the legislature.

The right to prosecute a writ of error or an appeal in this or any inferior court, is a matter pertaining to the mode of judicial procedure or the remedy. It is not guaranteed as a matter of right in the constitution; and though it is possible that this court, by the light of judicial precedent in England and in other States of this Union, from whose jurisprudence our system is mostly derived, might, in the absence of legislative enactments on the subject, be disposed to favor the right when sanctioned by established precedent; yet, when the legislature has passed laws regulating the mode of proceeding and limiting the cases and the courts in which the right may be exercised, the rules prescribed must be followed, because they are clearly such as the legislature had power to enact. Nothing appears to be more clearly within the legislative power over matters pertaining to public policy, than the question, in what cases and to what courts shall a party be entitled to an appeal or a writ of error? In such cases the

question to be settled is, whether or not it would best promote the purposes of justice, and the peace and quiet of the community, to allow a matter once or twice regularly adjudicated in the courts to be further litigated in other courts; and this question depends not upon matter of legal right, but upon considerations of public policy. It turns upon the grave question, at what point should litigation in particular cases cease, and what rule, in relation to the particular case, would best promote the public good? When the legislature determines this question and fixes the rule in any particular case, the question is thereby settled, whether or not the right to prosecute a writ of error or an appeal exists, and whether it comes within the "jurisdiction properly belonging to a Court of Errors and Appeals."

The general rule, therefore, clearly is, that the legislature has the power to deny the right of prosecuting a writ of error or an appeal in this court, in any particular case, and that a rule so enacted will be conclusive of the question of jurisdiction, unless it be in contravention of a positive right, with a clear indication of the remedy in the constitution. The denial of the right might, in our opinion, work a hardship to individuals, and be, on the whole, very inexpedient in its effect. Yet the power to establish the rule is within the province of the legislature, and it would not be our province to set aside their action.

The principles on which the above views are founded are sustained by numerous decisions of this court, among which we refer to Servis v. Beatty, 32 Miss. [52]; Briskoe v. Anketell, 28 Miss. 371; Coffman v. The Bank of Kentucky [41 Miss. 212], not yet reported. And the doctrine appears to be generally sanctioned by the courts of this country, that a writ of error or appeal will not lie unless given by statute. Matter of Canal and Water streets, 12 New York Rep. 2 Kernan. 406; Commonwealth v. Messenger, 4 Mass. 466; 1 Kent's Com. 324 (8 edit.).

The cases of Tims v. The State, 26 Ala. 165, and Ex parte Haughton, 38 ib. 570, proceed upon the right positively granted in the constitution to prosecute an appeal, under such rules and regulations as might be prescribed by the legislature. The statute under which the parties were charged made the conviction of the party before the justice in such cases final. And the court held the statute unconstitutional.

It is plain that these cases have no application to the question here presented; for the constitution here does not give the right of appeal, as was the case in Alabama.

But these cases are not in accordance with the principle held by the Supreme Court of the United States, with reference to the appellate jurisdiction conferred by the constitution on that court, "with such exceptions and under such regulations as Congress should make." And it was held that if Congress had not provided any rule to regulate the proceedings on appeal, the court could not exercise an

appellate jurisdiction. Wiscart v. Dauchy, 3 Dall. 321; Clark v. Basodone, 1 Cranch. 212.

The observation made by this court in the case of County of Yallobusha v. Carbey, 3 S. & M. 547 — that "no law can be passed which would give an ultimate jurisdiction of an appellate character to any other than to this court" is also relied on. This remark is not in keeping with the principles that have always been held by this court, and we cannot sanction it as a sound rule.

It follows from these views that the motion must be sustained and the appeal dismissed.1

SECTION 7

ENFORCEMENT OF JUDGMENTS

INTRODUCTORY NOTE

We have already considered the means available at common law and in classical equity for the enforcement of judgments and decrees -levy and sale on execution, elegit, contempt, sequestration, writs of assistance, bills to enforce decrees, bills in equity for equitable execution, and other forms of creditors' bills. We have also considered certain statutory extensions of and additions to these means of enforcement, notably garnishment by way of execution and the enforcement in rem of decrees for transfer of property. For the most part, these remedies are available under modern unified procedure, with some statutory modifications, in the same manner as under separate law and equity procedure.2 Two further methods remain to be considered: (1) statutory proceedings supplemental to execution; (2) the collection of judgments by ordering the judgment debtor to pay in installments out of his income. Both of these methods involve a combination of legal and equitable elements. The first may be regarded as a statutory development and extension of equitable execution; the second as derived in part from common-law body execution and in part from contempt proceedings to enforce money decrees in equity.

1 See In re Sharp, 15 Idaho 120, 135-136 (1908); Ryan v. Waule, 63 N. Y. 57, 58 (1875). Due process of law does not require that provision be made for appellate review in civil cases. See Ohio ex rel. Bryant v. Akron Metropolitan Park Dist., 281 U. S. 74, 80 (1930). Nor in criminal cases. See McKane v. Durston, 153 U. S. 684, 687 (1894); Reetz v. Michigan, 188 U. S. 505, 508 (1903); Rogers v. Peck, 199 U. S. 425, 435 (1905).

2 And subject to the same limitations with respect to imprisonment for debt.