*13[Filed January 30, 1888. ]
On application to rehear motion to dismiss appeal.
Per CuriamIn Bay v. Holland, we held that a judgment or deci’ee was binding and conclusive on parties and privies until annulled or reversed. That is the theory of law as it prevailed, and ’was practiced in the common-law courts. “ Every judgment/7 said Black, C. J., “ must be conclusive until reversed. Such is the character1, nature, and essence of all judgments. If it be not conclusive it is no judgment. Necessarily, then, a judgment is the final determination of an action or the end of the trial, and is binding and conclusive on the parties until annulled. Nor can it be avoided, annulled, or reversed, except by the commencement of a new proceeding, requiring the service of papers to give jurisdiction to another and separate tribunal invested with appellate powers, not for the purpose of retrying the case, but for the purpose of ascertaining if the court which tried the case committed error. And if error be found, it does not retain the case for trial, but reverses the judgment and remands the cause for a new trial, except in suits in equity, and then to examine the evidence for the purpose of ascertaining if the' findings and the conclusions of law drawn therefrom be correct. It does not undertake to try the case further than to re-examine it in the exercise of the revisory power vested by the Constitution in this court. It says in effect to the trial court, you erred or did not err, as the case may be, in the trial of this cause, and your judgment must be reversed or affirmed, as the case may be. This shows, as we think, that the proceeding here is distinct—a step in the progress to final determination—but a new proceeding to ascertain if during the progress of the trial, or in the proceedings from the beginning to the final termination thereof in the judgment, an error was committed by the court.
It examines the record to fin'd out if the judgment or final determination of the cause be correct, and in no other sense does it render judgments. It reverses, affirms, or modifies them. If, then, a judgment is the final determination of a cause, the process to correct supposed errors therein must be in the nature *14of a new action, and the statute invoked in relation to substitution can have no application to it. It is nothing more than the common-law rule, which did not require that the party suing out the writ of error, or as we say, bringing the appeal, to continue his attorneys of record; but may employ whom he pleases, and is a matter of his own concern, and in which the courts nor the opposing party did not have any interest. But it is said that an action or suit is to be deemed pending by section 514 of the Code until finally determined on appeal, or until the time for appealing shall have expired, and that this construction is inconsistent with it, or as counsel claim, shows that it is a continuation of the trial until finally determined on appeal, or until the time for appeal had passed. If this be true, it cannot be conclusive to bind the parties until reversed, and must overrule. (Day v. Holland, 15 Or. 464.) What, then, does that section mean? Simply this: That an action shall be deemed pending until finally determined on appeal, or until the time for appealing should have expired for all incidental or ancilliary purposes, as it did at common law, namely: To sue out execution to entire satisfaction of the judgment, serve notice on the attorneys as they appear of record, etc. For all of these purposes, and possibly some others, the action will be deemed pending. In Holland v. Day, we held that this section did not declare a new rule of law, but that was simply declaratory of the rule as it existed at common law, to which we must look for its construction.
In many instances the Code formulates substantive principles of the common law, of which those sections relating to evidence and procedure may be cited as examples. This being so, there is no rule or law requiring the appellant to retain his attorneys of record, to serve papers or to argue his case in this court. All any party is- bound to do is to look at the record, if he wants to serve a paper, to serve it on the attorney of record. If the attorney’s relations to the cause has ceased, he must send the papers to his client, for they will bind him, and he cannot, as in 6 How. Pr., come into court and try to show-no service because he was no longer attorney for the party. The court will not allow that. But here the reason of the rule ceases. It only has *15relation to the person on whom, service is made, and not to the person giving the notice. What possible difference can it make to the respondents so they get the notice.
The object of the rule was to direct parties to the record, and whoever appeared there as the attorney of the party may properly be served with notice. In Day v. Holland, supra, the ground of Judge Lord’s dissent was the construction given a like section of the California Code by the Supreme Court of that State, although his opinion indicates that he regarded the section as a statutory declaration of the principle as it existed at the common law, and in the absence of the decisions to which he referred, he would have applied that construction to it which would have been in conformity to what is here said.
"We think he gave too much importance to those decisions, especially where they are not harmonious, and that if he had followed his own construction of what he conceived to be the true meaning of the section, he would have reached this conclusion in that case. As we think that case is good law we shall overrule the application to rehear the motion.