(concurring separately).
A post-conviction suit instituted to assail the constitutional validity of the petitioner’s conviction is a collateral attack on the prior judgment. State ex rel. Ingram v. Henderson, 220 Tenn. 676, 423 S.W.2d 479; Bomar v. State ex rel. Stewart, 201 Tenn. 480, 300 S.W.2d 885.
In this State such a suit is a civil action. State ex rel. Austin v. Johnson, 218 Tenn. 433, 404 S.W.2d 244. Such is the law generally. Citing decisions by the United States Supreme Court, Federal Circuit Courts of Appeal and state courts of last resort, the rule is summarized as follows in 39 Am.Jur.2d, Habeas Corpus § 10:
“It is the prevailing view that habeas corpus is, in its nature, a civil rather than a criminal proceeding, even when it is sought in behalf of one charged with, or convicted of, crime. The proceeding is concerned only with the prisoner’s right to liberty, notwithstanding the particular act for which he is detained, and is separate from the legal proceeding under which the detention is sought to be justified.”
The same view is stated in 5 Wharton’s Criminal Law & Procedure (Anderson), Habeas Corpus § 2222, pp. 444-445.
Chapter 475 of the Acts of 1970, amending TCA § 27-111, is expressly applicable only to criminal cases, and does not change the character of post-conviction proceedings from civil to criminal. The plain result is, in my view, that this Court is wholly without authority to invoke Chapter 475 sua sponte to validate a late Bill of Exceptions in this civil case, even as this statute confers no authority on the Court of Appeals and the Supreme Court to do so in any civil case.
The law is settled and well known that a late Bill of Exceptions is a nullity and cannot be considered for any purpose on appeal. Thomas v. State, 206 Tenn. 633, 337 S.W.2d 1; Collier v. State, 202 Tenn. 689, 308 S.W.2d 427; DuBoise v. State, 200 Tenn. 93, 290 S.W.2d 646; Sims v. State, 1 Tenn.Cr.App. 623, 448 S.W.2d 93.
This is so because the requirements of TCA § 27-111 are jurisdictional, and the appellate court has no jurisdiction or power to consider a Bill of Exceptions filed after expiration of the time allowed therefor by statute. O’Brien v. State, 205 Tenn. 405, 326 S.W.2d 759.
Because a late Bill of Exceptions is a nullity and the appellate court has no jurisdiction to consider it, the court will notice such a defect on its own motion. Collier v. State, supra.
*665The law was also settled long ago in this State that in such situations the appellate court cannot review anything other than the technical record. Nelms v. State, 219 Tenn. 727, 413 S.W.2d 378; Thomas v. State, supra; State ex rel. Tines v. Bomar, 205 Tenn. 572, 329 S.W.2d 813; DuBoise v. State, supra; Jones v. Moore, 106 Tenn. 188, 61 S.W. 81; Pruitt v. Cantrell, 196 Tenn. (32 Beeler) 142, 264 S.W.2d 793.
State ex rel. Tines v. Bomar, supra, was a habeas corpus case in which the Bill of Exceptions reflecting the proceedings in the trial court, when the petition was heard and dismissed, was not filed within the statutory period. The Court held that “ . . . the purported bill of exceptions can not be considered by this Court,” and that the only thing before the Court was the technical record. Finding no error in the technical record, the Court affirmed the judgment of the trial court.
In my opinion our review of this case must be limited to the technical record. Finding no error therein, I would affirm the judgment of the trial court.