*458ON MOTION FOE EEHEABING.
(Filed April 16, 1914.)
FRANKLIN, O. J.One who is familiar with the delightful comedies of Moliere cannot fail to remember his faculty to imbue in great degree farce and burlesque with the true spirit of refined comedy. In one instance he depicts with rare delicacy and humor the situation of two doctors; a Doctor Tant-mieux (so much the better), and a Doctor Tant-pis (so much the worse). Like unto a dialogue between hope on its feet and despair taking to its bed, these doctors were expected never to agree; nay, they never did nor could agree. The theater of this appeal presents a situation curious too, in that the appellant and the appellee cannot agree on anything or in any particular. They differ about the law, about the facts, on the opinion of this court in the instant case, on the language and effect of former decisions of this court, on the jurisdiction of this court, on the procedure governing its deliberations, and the scope and extent of, and the limitations upon, its power to review and pronounce judgment. The cause in its progress toward a final determination of the rights of the parties has had a varied career, and not without its vicissitudes, which have, perhaps, been more common to it than attends ordinarily the passage of litigation. The action was commenced in 1905, and its progress has been delineated in the principal opinion. It is sufficient here to state that the judgment of the trial court, in favor of the appellee, has, on appeal, and on a consideration by the appellate court of the law and the facts, been held both by the supreme court of the territory and the supreme court of this state to be erroneous. A rehearing of the case was asked in the supreme court of the territory and denied. On appeal to the supreme court of the United States, that court, ‘! considering the whole situation,” treated the ease upon the theory that the territorial supreme court committed reversible error in adopting the findings of fact made by the trial court, and in not certifying to the supreme court of the United States findings of fact proceeding from its own conscience as required by the federal statute.
*459From the judgment of this court the appellee has asked for a rehearing. The motion for rehearing was filed February 10, 1913, and on August 27,1913, an amended motion for a rehearing was filed which is inadvertently stated to have been done by leave of this court; but, as no objection has been made by appellant on that score, we shall in this instance consider the amended motion filed by leave granted. Under the rule an amended motion for rehearing may not be filed without leave of the court. The court has indulged counsel on both sides in the filing of many briefs on the one side in support of the motion and on the other side in objection to it; the last brief having been filed January 23, 1914. The briefs present a painstaking essay to spare no point which might affect the decision of the cause, and able and skillful efforts to enlighten the court in every possible way. As we have said, there is an absolute lack of harmony between the parties in every matter and in every particular of the matter. Nothing but a knitting up by the appellee and a raveling out by the appellant, and no progress is or will be discernible whatever unless we are capable of eliciting from the sea of things the fractions which are cardinal. Unless we are capable of doing this, the opinion will become one long drawn out. This task, for the sake of brevity, we must apply ourselves to, and all others omit.
The opinion of the supreme court of the state in this cause was filed on January 27, 1913, and in the amended motion for a rehearing filed by appellee more than six months thereafter a matter is for the first time suggested affecting the jurisdiction of both the territorial supreme court and this court on the appeal. It is asserted that the notice of appeal and the bond on appeal are insufficient to give this court jurisdiction of the appeal.
Paragraph 1493 of the Revised Statutes of Arizona of 1901 provides: An appeal may, in cases where an appeal is allowed, be taken during the term of the court at which the final judgment or order is rendered by appellant giving notice of appeal in open court, which shall be noted on the docket and entered of record, and by filing with the clerk an appeal bond or affidavit in lieu thereof, as hereinbefore provided, during the term or within twenty days after the expiration of the term.
Within the time prescribed by the statute, the appellant *460gave notice of appeal in open court, which was entered of record in language as follows: “Come now the defendants herein and except to the ruling of the court in rendering a judgment in favor of the plaintiff and in overruling their motion for a new trial herein, and give notice of appeal to the supreme court of the territory.” The bond on appeal describes the judgment and recites an appeal from the judgment, but does not recite an appeal from the order overruling the motion for a new trial. The language of the minute entry indicates beyond the peradventure of a doubt that it was the intention of the appellant to take an appeal from both the judgment and the order overruling the motion for a new trial. The notice recites the judgment and order and excepts to the ruling of the court, and gives notice of appeal to the supreme court of the territory. The ruling excepted to embraced both the judgment and order overruling the motion for a new trial.
Analyzing the notice hypercritically, we think it evident that the notice is a sufficient taking of the appeal from the judgment and the order.
In perfecting such appeal the bond did not recite the order overruling the motion for a new trial, but was limited to the judgment. The appeal is taken by giving the notice; it is perfected by giving the bond. Does the failure of the bond to recite the order overruling the motion for a new trial destroy the jurisdiction of this court on the appeal, or does it merely affect its jurisdiction? In other words, if this court has jurisdiction of the appeal, to what extent may the exercise of that jurisdiction go in its disposal? We must note this with some care, though strive to do it compendiously that reproach may not argue a deficiency of perception as to what the pronouncements of this court have been on this subject.
In the Revised Statutes of 1887, the chapter on appeals and writs of error provided for hut one appeal, to wit, an appeal from the judgment; only one writ of error, to wit, from the judgment. Paragraph 846 says: ‘ ‘ An appeal or writ of error may be taken to the supreme court from any final judgment of the district court rendered in civil cases.” The appellate’jurisdiction of the court was limited to final judgments.- But on appeal from a final judgment, the exercise of that jurisdiction was prescribed, the scope and power of its review indicated. The supreme court shall have jurisdic*461tion to review upon appeal, or other proceedings provided by law. This is the language of paragraph 593, Revised Statutes of 1887. The statute then proceeds to enumerate the particulars and indicates the extent of the exercise of its jurisdiction or scope of its power of review on appeal from the judgment, which by recital includes the power or jurisdiction to review an order granting or refusing a new trial, sustaining or overruling a demurrer, or affecting a substantial right in an action or proceeding. The appeal must be from the judgment, and no provision is made for direct appeal from the order, but if from the judgment, the power of review is extended to and embraced the order.
Let us carefully note the language used in the revision of 1901. The wording is significant. The first part of paragraph 1493, Revised Statutes of 1901, is identical with paragraph 846, Revised Statutes of 1887. Paragraph 1493, supra, reads: “An appeal or writ of error may be taken to the supreme court from any final judgment of the district court rendered in civil cases, and from any of the orders mentioned in section 1214, which the supreme court has jurisdiction to review.” The last part of the paragraph just quoted, which was added by the revision of 1901 to the statute of 1887, has a most important bearing in considering what was the purpose and intention of the legislature in thus ingrafting such language on that of the earlier statutory expression. That the language was used advisedly we are persuaded, and that its purpose is clear we are convinced.
Reconnoitering on the statute fields of 1887 and 1901, it does not require a glass to see that there is but one appeal, but one writ of error, contemplated and provided. Under the statutes of 1887 the appeal was from the judgment, and the extent of the court’s power to review on such appeal was provided by the statute. Under the statutes of 1901, there is an appeal from the judgment and from any of the orders mentioned in section 1214, which the supreme court has jurisdiction to review. The extent of the review permitted on such appeal is also indicated in the statute; but, unlike the statute of 1887, the statute of 1901 places the extent of our power to review largely within the control of the party appealing. The appeal is from the judgment and from any of the orders mentioned. Net from any of the orders mentioned without *462an appeal from the judgment, but from the judgment and any of the orders are the words of the law. The appeal may be taken directly from the judgment and any of the orders, but it may not be taken directly from any of the orders mentioned independently of the judgment. In other words, there is given the right of direct appeal from the final judgment and any of the orders mentioned, but not the right of direct appeal separately and apart and independent of an appeal from the judgment. The views expressed are emphasized by a scrutiny of the method prescribed for taking and perfecting the appeal under each of the statutes noticed. They are alike as two peas, the method when the appeal was from the final judgment only, and the method when the appeal was taken from the final judgment and any of the orders mentioned. The notice of appeal is the same, the cost bond is the same, the stay -bond is the same. No change made in taking and perfecting either the appeal or the writ of error. The important change, however, is that the revision of 1901 placed it largely within the control of the party appealing to fix the scope of the appeal; that is to say, the extent to which the court in a given case may exercise its jurisdiction to review. By taking and perfecting the appeal from the judgment only, our right of review was restricted to the judgment-roll and any intermediate order involving the merits and, necessarily, affecting the judgment. The appeal from the judgment only did not destroy the jurisdiction of this court, but only limited the exercise of its jurisdiction by confining the scope of its right of review. If the appeal was taken and perfected from the judgment and from the order overruling the motion for a new trial, the right of review to that extent was thereby enlarged, and so on as the' appeal from the judgment would embrace any other appealable order. In fine, the appellant could restrict us to a review of the judgment-roll, and the intermediate orders, and he could also enlarge the right of review as he extended the scope of his appeal to embrace not only the final judgment, but any other appealable order that the issues on his appeal might require to be reviewed. In no case has this court even hinted that the failure to appeal from the judgment and order denying the motion for a new trial destroyed the jurisdiction if the appeal was taken and perfected from the judgment only. In each of the following *463cases the appeal was taken and perfected from the judgment only: Arizona Eastern R. Co. v. Globe Hardware Co., 14 Ariz. 397, 129 Pac. 1104; Miami Copper Co. v. Strohl, 14 Ariz. 410. 130 Pac. 605; Van Dyke v. Cordova Copper Co., 14 Ariz. 499, 132 Pac. 94; Thomas v. Bartleson, 14 Ariz. 513, 131 Pac. 973. In these cases we held that the court had jurisdiction of the appeal, but that the exercise of that jurisdiction was restricted in the scope or extent of our power to review. Under the Revised Statutes of 1901, we have never taken jurisdiction of an appeal from an order independent of an appeal from the judgment, and we have never held that an appeal from the judgment only was fatal to the appeal. What is the situation of the instant case? The appellant gave notice of appeal from the judgment and from the order denying the motion for a new trial. The appeal was perfected, however, by giving a bond reciting an appeal from the judgment. Under the Laws of 1901, as construed by this court in the eases supra, the appellant by his method of perfecting the appeal restricted our right of review to the judgment-roll and such intermediate orders as involved the merits and necessarily affected the judgment.
But a change has come over the appellate procedure. Probably at the suggestion of this court in the case of Miami Copper Co. v. Strohl, supra, the legislative authority has yielded to the advice of this tribunal and has attempted a phrasing of the appellate procedure that will do away with the apparent technicalities that beset us in that case and limited the right <of review on the record as there presented.
On October 1, 1913, Senate Bill No. 108, entitled “An act to provide for the review of judgments and orders of superior courts of the state of Arizona, and the practice and procedure in the supreme court upon such review,” became the law. The act contained an unlimited and unqualified express repeal of all acts and parts of acts in conflict with its provisions. Section 6 of the act is as follows: “Upon appeal from a final judgment the court shall review all orders and rulings made by the court below, which are assigned as error, whether a motion for a new trial is made or not. If a motion for a new trial is made and denied, the court may, on appeal from the final judgment, review the action of the court below in denying the motion, though no appeal be taken from the order *464denying the motion for a new trial; provided, that on appeal from a final judgment the supreme court shall not consider the sufficiency of the evidence to sustain a verdict or judgment in an action tried before a jury unless a motion for a new trial shall have been made.” (Sec. 1231, Rev. Stats. 1913, Civil Code.)
The act is applicable to judgments of the district courts, for such judgments are now the judgments of the superior courts. Article 22, section 7, of the Constitution, reads: “The records, papers, and proceedings of said district court, and other property pertaining thereto, shall pass into the jurisdiction and possession of the superior court of such county”— the evident purpose of this provision being to establish the judgments rendered by the district court prior to statehood as the judgments of the superior court. A similar provision of the law was before the court in the case of Merchants’ Bank v. Braithwaite, 7 N. D. 358, 66 Am. St. Rep. 653, 75 N. W. 224. Chief Justice CORLISS said: “By this section the people speaking through their fundamental law, have, with the assent of Congress, vested jurisdiction over judgments of the territorial district courts, in the proper state district court, and the judgments were thereafter as much judgments of the state district court as though they had been rendered by such courts.”
Recognizing the far-reaching effect of an unconditional repeal, the legislature enacted a section (5560) which went into effect at the same time as Senate Bill No. 108. It reads: “No action or proceeding commenced before any repealing act takes effect and no right accrued is affected by the provisions of such act, but proceedings therein must conform to the requirements of the acts passed at the same session of the legislature so far as such last-mentioned acts are applicable.” This seems to be an emphatic expression of the legislative intent that the provisions of act No. 108 should govern this court in reviewing pending appeals. Such intent becomes more obvious when it is considered that the law was enacted at the suggestion of this court that the apparent technicalities in the. law should be expunged, to the end that this court might not be constrained to render decisions as the result of a restricted power of review. That the removal of such restrictions would enable it to proceed and render its decisions *465upon the merits of the causes presented, unencumbered with those considerations which probably appeared somewhat trifling, but which involved us in an obedience to the will of the law—in a recognition and application of the law as it is written. Having determined that there is but one appeal under the laws of 1901, and that the method of taking and perfecting such appeal affects the jurisdiction of this court—in other words, enlarges or circumscribes our power to hear and determine the case on the record as presented—the crux of the present motion for a rehearing lies in an answer to this question : Has the appellee a vested right in the method of taking and perfecting an appeal as it existed when the judgment at bar was given? An answer to this question is a solution of the problem presented.
In the ease of Pearsall v. Great Northern Ry., 161 U. S., at page 673, 16 Sup. Ct. Rep., at page 713, 40 L. Ed. 838, quoting Mr. Justice COOLEY, it is said: “Rights are vested, in contradistinction to being expectant or contingent. They are vested, when the right to enjoyment, present or prospective, has become the property of some particular person or persons as a present interest. They are expectant, when they depend upon the continued existence of the present condition of things until the happening of some future event. They are contingent, when they are only to come into existence on an event or condition which may not happen or be performed until some other event may prevent their vesting. ’ ’
A “vested right” is defined to be an immediate fixed right to present or future enjoyment, or where the interest does not depend on a period, or an event, that is uncertain. Clark v. McCreary, 20 Miss. (12 Smedes & M.) 353; Oriental Bank v. Freeze, 18 Me. 109, 36 Am. Dec. 701; Edworthy v. Iowa, 114 Iowa, 220, 86 N. W. 315; Gladney v. Sydnor, 172 Mo. 318, 95 Am. St. Rep. 517, 60 L. R. A. 880, 72 S. W. 554.
After this judgment was rendered, a motion for a new trial was made, giving the lower court opportunity to correct any error it may have made. The motion was overruled. At that time the right of appeal existed. An appeal was taken and perfected. By the method pursued in taking and perfecting the appeal, however, we were restricted in our review of the record. The appellee couid not have a vested right in the judgment while the right of appeal existed, and so long as *466the time for appeal had not expired. The appellee could never acquire a vested right in the judgment so long as it was subject to the decision and determination of the appellate court. On the appeal the judgment of the trial court was declared to be erroneous by the territorial supreme court and again by the supreme court of the state. Having determined that under the law there was but one appeal, to wit, an appeal from the judgment or an appeal from the judgment and order or orders, and an appeal having been taken and perfected from the judgment, but not including the order, thereby not destroying our jurisdiction, but restricting the scope of review, and the law now removing that restriction and broadening the scope of review to include the order, the right of the appellee to have that part of the controversy concerning the order foreclosed is in no sense a vested right. The legislature is not precluded from enacting a law to broaden the scope of our review upon the appeal to include the order. The appellee can have no vested right in a matter of procedure or in the method and mode by which a record on appeal is enlarged or restricted for presentation to the appellate court. Andrade v. Andrade, 14 Ariz. 379, 128 Pac. 813; Johnson v. Semple, 31 Iowa, 50; Sumner v. Miller, 64 N. C. 689; Blonde v. Menominee Bay Shore Lumber Co., 106 Wis. 540, 82 N. W. 553; De Cordova v. Galveston, 4 Tex. 470; Willard v. Harvey, 24 N. H. 344; Bank v. Miller, 145 Ala. 237, 40 South. 513; Buck v. Canty, 162 Cal. 226, 121 Pac. 924; Clark v. Railroad, 219 Mo. 524, 118 S. W. 40. The appellee can have no vested right in preventing the law-making power from changing the mode and method of review. “If a statute providing a remedy is repealed while proceedings are pending, such proceedings will be thereby determined, am less the legislature shall otherwise provide, and, if it be amended instead of repealed, the judgment pronounced in ■such proceedings must be according "to the law as it then stands.” Cooley’s Constitutional Limitations, 7th ed., p. 516.
In Cassard v. Tracy, 52 La. Ann. 835, 49 L. R. A. 272, 282, 27 South. 368, will be found a learned and exhaustive consideration of this matter. The court says in the opinion: •“The first question is as to the effect of a suspensive appeal ■upon the judgment appealed from. The Code of Practice declares that a judgment from which a suspensive appeal has *467been taken cannot be executed. Code Prac., art. 575. That same is not a final and definitive judgment. The very object ■of the appeal is to keep the controversy open, obtain a review ■of the law and evidence upon which same is predicated, and, if possible, to obtain a different decree in the appellate court. The effect of an appeal was very thoroughly considered in the case of Beaird v. Russ, 34 La. Ann. 315. A judgment which cannot be executed, and which may be reversed on appeal, cannot certainly possess any value as a piece of property, inasmuch as the title is defeasible and conditional. The very object of taking a suspensive appeal is to prevent the decree having any effect, and to prevent its execution. This being the case, it is not readily perceivable upon what ground the argument is predicated that a law enacted during the interim of the suspensive appeal would have the effect of impairing the right of the judgment creditor; the right being defeasible and conditional. . . . The plaintiff ’s right to the judgment necessarily depended upon its affirmance in the appellate court; for, if same should be reversed in the court of appeals, or by this court in reviewing the same, there would be no property in it at all. The right of property in a judgment of the district court, suspensively appealed from, would be necessarily extinguished by its reversal.”
It is only after existing remedies have been exhausted, and rights have become permanently vested, that interference with the mere remedy is prohibited. Smeaton v. Austin et al., 82 Wis. 76, 51 N. W. 1090; Lovell v. Davis, 52 Mo. App. 342; Vance et al. v. Rankin et al., 194 Ill. 625, 88 Am. St. Rep. 173, 62 N. E. 807; 1 Haynes on New Trial and Appeal, Rev. ed., sec. 9; 3 Cyc. 407.
By the later decisions of Oklahoma, notably the case of Independent Oil Co. v. Beacham, 31 Okl. 384, 120 Pac. 969, the supreme court of that state, having under consideration provisions of the Constitution similar to section 1 and section 2 of article 22 of the Constitution of Arizona, drew a distinction between rights existing at the time of statehood and not in suit and actions in suit pending at the time of statehood; that as to the latter the procedure involved was within the protection of the Constitution. In the case of Andrade, v. Andrade, supra, we had occasion to cite the Beacham case in support of the rule that ‘‘no person has a *468vested right in any particular mode of procedure, and if,, before the trial of the cause, a new law of procedure goes into effect, it governs, unless the statute provides otherwise.” We did not yield to the test applied in that case, which was. whether the suit was pending or not pending at the time of the admission of the state; hut following the quotation from that opinion, we did cite Cusic v. Douglas, 3 Kan. 123, 87 Am. Dec. 458, Kelly v. Larkin, 47 Cal. 58, and other cases where the new procedure was held applicable to pending eases as well as rights existing but not in suit. The construction given by the supreme court of Oklahoma was, perhaps, impelled by the unique situation of two territories, the Indian Territory and Oklahoma Territory, each with separate and distinct laws, and which separate territorial governments were molded into one sovereignty under statehood, a situation peculiar to that jurisdiction, but not existing here. In the Beacham case the Oklahoma court, departed from an earlier construction which included both existing rights and pending actions, and limited the protection of the constitutional provision to actions pending at the time of statehood, but denying its protection in matters of procedure to rights existing at statehood and not in suit. Pending cases, in all probability, in most instances had been disposed of, and had not the court departed from its earlier decisions there would have been fastened upon Oklahoma a dual system of procedure to plague the courts and litigants for many years to come with confusions and embarrassments in the administration of the law. Further than this, we do not read the Oklahoma decisions as denying to the legislature the' power to change the law of procedure governing actions pending. The broad general scheme of sections 1 and 2 of article 22 of our Constitution is to preserve rights, actions, contracts, claims, etc..,, that no abruptness might occur in the change from a territory to a state, that the administration of the law should proceed unaffected by any change in the form of government, that the change should in no wise affect existing rights; not that new laws may not be enacted affecting or regulating the remedy for the enforcement of those rights.
We think that Senate Bill No. 108, therefore, governs us in the scope of our review on appeals pending. The appellant had the right of appeal and exercised the right, and the *469•appellee had no vested right in having the mode of taking the •appeal, or the scope of our review on the appeal remain as it was when the judgment was rendered. The construction we have given is favorable to the remedy; it gives us the power to fully review the ease upon its merits and do justice as the law and the facts require. Such a construction denies the •appellee no right and should he given to the act.
We are satisfied the judgment of this court is correct, and it would be to no purpose to grant the rehearing and thereupon render the same judgment. ■ The desired end is accomplished by denying the motion and letting the judgment stand.
The motion for a rehearing is denied.
ROSS, J., concurs.