Ingalls v. McGraff , 2 Ohio St. (N.S.) 372 ( 1853 )

Bartley, J.

The original proceeding was a bill in chancery, instituted by DeGcraff and Barnard against Ingalls and Young, in the month of October, 1850, in the Commercial Court of Cincinnati, and appealed to the district court of Hamilton county, wherein a •decree was rendered, at the September term thereof, 1853, against the defendants in said *bill in chancery. With a view to vacate this decree, Ingalls and Young, instead of resorting to a bill ■of review, ask leave to file a petition in error under section 514 of the code of civil procedure.

The bill in chancery was pending at the time the code took effect. And it is especially provided in section 533 of the code, that “ final orders or decrees in any such proceeding heretofore ren■dered, or which shall be hereafter rendered, in any chancery suit pending at the time this code takes effect, may be reviewed in the -same manner and within the same time as if this code had not taken effect.” It is claimed, however, that although a bill of review would be maintainable; yet that a petition in error in this case is authorized by section 514, which provides that the judgments or final orders of subordinate courts may be reversed, vacated, or modified by the Supreme Court, etc. This section clearly has no application to chancery proceedings, as is apparent from section 512, which specially defines the judgments and orders to which this provision extends. This construction is placed beyond all doubt by section 602, which must be taken in connection with the other provisions mentioned, and which, in defining the proceedings to which the code shall extend, specially and in express terms excepits the eases provided for in section 533.

If, therefore, any error has occurred in the original proceedings mentioned, a bill of review, which is not an original bill for relief, and does not require the exercise of original jurisdiction, but which bears some analogy either to a proceeding for a new trial or ■a writ of error coram nobis, furnishes the appropn-iate and only legal remedy.

Motion overruled.