during the progress of the cause, but from final decisions, or, what is the equivalent term, when applied to an action, from final judgments.

No judgment is final which does not terminate the litigation between the parties to the suit. St. Claire County v. Livingston, 18 Wall. 628.

In this section under discussion congress has described affirmatively the jurisdiction which this court shall exercise, and this affirmative description implies a negation of the exercise of such appellate power as is not comprehended within it. Duvousseau v. United States, 6 Cranch, 312; Wiscarl v. Duvehey, 3 Dallas, 321.

When, therefore, congress enacts that this court shall have appellate jurisdiction over final decisions of the district courts, the act operates as a negation of such jurisdiction in other cases. It is true that section 1866 of the U. S. Revised Statutes provides that the jurisdiction of the supreme court, as well as the district court, both appellate and original, shall be limited by law; but when construed with section 1869 cannot be held as authority for enlarging the jurisdiction of the supreme court, in the exercise of its appellate powers, beyond the case provided in section 1869, but must be construed only as authority to limit its jurisdiction within the limitation prescribed by that section.

By what authority, then, can this court hear and determine this appeal from a new order before the final judgment; before the litigation between these parties in the action now pending in the district court is there terminated? It is said to be claimed under the authority of the territorial enactment regulating appeals. My own view of that statute is that it should be construed as a mere regulation under and subordinate to said section 1869, and as providing what orders may be reviewed when appealed from in conjunction with the appeal from the final judgment, and after the final determination of the litigation in the district court, and when so construed can be sustained. But if it is to be construed as an enlargement of the appellate powers and jurisdiction of the supreme court, to the extent that independent appeals may be taken in cases like the one under consideration, or from mere interlocutory orders and decisions, and before the final judgment, I have no hesitation in pronouncing it contrary to the provision of the aforesaid act of congress, and, therefore, in such particular and to that extent a nullity. It is also contrary to the policy of the law every

where, except when some intermediate and advisory court may exist, like the general term in New York, in no sense to which is the organization, or establishment, or are the powers of this court similar. Why should this court be burdened with this appeal at this time?

For aught that can be made to appear legally and regularly to this court, while the appeal is pending and under consideration and advisement, the defendant may have judgment upon the other issues in the case in the district court, and this court have been pursuing but a myth, a delusion, a mere nothing. If the statutes of the territory are to be construed, as I have suggested may be claimed for them, as authorizing the intermediate appeal from an order in the case pending the action, whence is derived the authority?

It is claimed, by virtue of the language used in section 1869, that "writs of error and appeals shall be allowed under such regulations as may be established by law." Let us consider the nature of that authority: Regulations are to be established; something is to be regulated, not created. What is to be regulated? Clearly the allowance of writs of error, exceptions and appeals, from such final decision; other and independent appeals are not to be allowed, and the exercise of other and different powers and jurisdiction authorized. This would be creating, not regulating. It would not be regulating the exercise of a jurisdiction already conferred, but conferring a new and distinct jurisdiction. We cannot, in the face of the evils it would entail, and of the policy of the law since appellate courts were established, and against the plain reading of the statutes, presume it was the intention of congress to authorize the legislature to establish so absurd a proceeding, and more especially when we observe that identical language is used by congress in providing for writs of error and appeals from the final decisions of this court to the supreme court of the United States. Who would have the temerity to suggest that an appeal or writ of error would be entertained by that court until final judgment here. It may be thought that the construction of the territorial statute relating to appeals, I have suggested, is the true one, to-wit: that the orders mentioned may be reviewed, but must await the final termination of the action, and final judgment is impracticable in some cases, because of the limitation in the time of noticing appeals from certain orders. If such would be the result the remedy would be with the legislature and not with the court. In any event, no other construction can be placed upon that statute,

IN THE MATTER OF OPENING GOLD ST., DEADWOOD.

39

and the power of this court to sustain it remains, the rule of law, is plain and obvious, that a statute should be given that construction, if possible, which will enable the court to declare its validity, even though in some exceptional cases it would not apply.

It follows, the appeal being from an order made in the progress of the cause, and not final, is prematurely brought, and must be dismissed, without prejudice, however, to defendant's bringing a new appeal after final judgment, if judgment shall be against him.

I have not overlooked the case of Clay County v. Simonson, decided at the June term, 1877. The rule now announced does not differ from any views then expressed or entertained by this court. The court evidently proceeded in the opinion upon the understanding there was a final judgment.

IN THE MATTER OF THE OPENING OF GOLD STREET, DEADWOOD, D. T. GEORGE N. NEWTON, Appellant.

The service of a notice of appeal, and the transmission of a certified copy thereof, are essential to give this court jurisdiction; and such service cannot be waived by stipulation.

Appeal from the district court of Lawrence county.
Motion to dismiss the appeal.

W. H. Parker, for the motion.
J. R. Gamble, contra.

SHANNON, C. J. It is provided by section 409 of the Code of Civil Procedure that if the appellant fail to cause the requisite papers to be transmitted to the supreme court the appeal may be dismissed. The requisite papers are clearly prescribed in section 408, and in the rules of this court. First, there must be a certified copy of the notice of appeal. [Rules 4 and 8 of the supreme court.]

By section 403, c. 16, same Code, it is enacted that "the modes of reviewing a judgment or order in a civil action shall be those prescribed by this chapter." By section 407 it is declared that "an appeal must be made by the service of a notice in writing on the adverse party or his attorney, and on the clerk with whom the judgment or order appealed from is entered, stating the appeal from the same, or some specified part thereof." There is no other mode in the chapter for

reviewing a judgment or order by appeal, and it is therefore a prerequisite that an appeal must be so made. Without it this court obtains no jurisdiction of the cause.

Appellate jurisdiction is conferred, under the organic law, by section 22 of the Code, and the same authority which gives the jurisdiction points out the manner in which a case shall be brought before us. We have no power to dispense with the provisions of the law as to the mode, nor to change or modify them. Carroll et al v. Dorsey et al. 20 How. U. S. R. 207; Castro v. United States, 3 Wall. 47.

The service of the notice of appeal is a jurisdictional question, which can be taken advantage of at any time before there is a positive act of submission to the appellate court. To this point see People v. Eldridge, 7 How. Pr. R. 108; Tripp v. De Bow 5 How. Pr. R. 114; S. C. 3 Code R. 163. An omission in this respect cannot be supplied or rectified. Morris v. Morange, 26 How. Pr. R. 247; S. C. 17 Abb. 86, affirmed; 38 N. Y. 172; 4 Abb. N. S. 447; 31 How. Pr. R. 631, n.; Hastings v. Halleck, 10 Cal. 31, 491; Buffandeau v. Edmundson, 24 Cal. 94; Whippley v. Mills, 9 Cal. 641.

In the case of Kelsey et al. v. Forsyth, 21 How. 85, it was held by the supreme court of the United States "that an agreement of parties cannot authorize this court to revise a judgment of an inferior court in any other mode of proceedings than that which the law prescribes." See also Mordecai v. Lindsay, 19 How. 200; Sampson v. Welsh, 24 How. 207. Among the papers transmitted to this court there is not a certified copy of any notice. notice. On the argument of this motion it was not even pretended that there ever was any notice in writing to be served on anybody. On the contrary we have a simple statement, signed by one of the counsel for the respondent, that "notice of appeal in the above entitled cause was waived by consent of counsel."

Such waiver, by any stipulations of the parties, is insufficient; for consent, though it. may waive error, cannot confer jurisdiction. Bonds v. Hickman, 29 Cal. 461.

This motion must prevail, though, under section 410, without prejudice to another appeal. And now, August 31, 1878, on consideration, it is ordered and adjudged that the appeal in this cause be dismissed at the appellants costs, without prejudice however, to another appeal.

(All the judges concurred.)

MARIANA K. CLEVENGER, Appellant, vs. THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Respondent.

Contract of insurance considered. A stipulation in a contract for life nsurance that no agent should be permitted to waive forfeitures, or alter or change the written contract, and that no alteration or change in such contract should be binding, unless in writing, signed by the president or secretary of the company, is valid and binding upon the insured, and the company will not be bound by any attempted change made by an agent.-[ED.

Appeal from the district court of Yankton county.
Gamble Bros., for appellant.

Oliver Shannon, for respondent.

BARNES, J. This is an appeal from the second district. First. The complaint charges that the defendant is a corporation created under the laws of the state of New York, and has for its agent Mark M. Palmer, at Yankton, Dakota.

Second. That on the twenty-second of August, 1873, it issued a life insurance policy to the plaintiff on the life of Shobal Clevenger.

Third. That plaintiff has regularly paid premiums on said policy at the rate of thirty dollars and five cents quarterly.

Fourth. That the defendant received and obtained said money from plaintiff from time to time, as per statement below, under false representations, promises and undertakings, in that the said defendant agreed, promised and undertook, and promised to refund and pay back to this plaintiff, whenever she desired to surrender said policy, the full amount of said payments, less a certain percentage thereof, as plaintiff understood not to exceed ten per cent.

Fifth. That plaintiff has offered to surrender said policy on payment to her of ninety cents on the dollar of the amount paid by her on said premium, which defendant refused, but offers and proposes to pay her forty-eight dollars and fortythree cents.

Sixth. From the statement accompanying the complaint it is claimed that from August 23, 1873, to August 23, 1877, the plaintiff paid in premiums the sum of five hundred dollars and eighty-five cents.

The plaintiff then credits the company for alleged dividends one hundred and twenty dollars, leaving of cash paid of premiums for the four years three hundred and ninety dollars and fifty-nine cents, or about ninety-seven dollars and fifty cents per year.