On Petition for a Rehearing.
Elliott, J.In the petition for a rehearing filed by appellees, it is said that we overlooked their proposition that appeals from commissioners are to be tried de novo, and that it is, therefore, not material what errors are committed in the course of the proceedings before the commissioners. We did not overlook this proposition, but we did think, and do .still think, that it is without force in a case where the record shows, as it does here, that the proceedings had been fully closed by a final judgment, and that there was a subsequent attempt to resume jurisdiction without any right or authority whatever. Appellees illustrate their argument by supposing the case of a trial before a justice of the peace, and the wrongful refusal of a continuance. The supposed case is utterly unlike the real one. If appellees had supposed a case where the justice had rendered final judgment, and ten or twenty .days afterward had resumed jurisdiction and proceeded to re-try the case without the slightest authority for ,so doing, they would have presented a case much more closely resembling the present.
It is also urged that we did not notice the point that no exception was reserved upon the ruling on the motion to dismiss. We did certainly see in appellees’ brief, as well as in the record, the statement, “Come the parties and the court now overrules said motion to dismiss said petition and the subsequent proceedings thereon had before the board of commissioners of Allen county, to which ruling the plaintiffs except.” This we deemed a sufficient exception, for the motion *230itself was properly in the record certified from the commissioners’ court, as well as properly in the record of the circuit court; so, also, were the facts showing that the board had no jurisdiction to render the second judgment, which they did,, or to entertain the petition after they had fully adjudicated and closed the case by final judgment. We supposed that, when we had decided that the judgment of the commissioners was shown to be utterly void because of want of jurisdiction, it was not necessary for us to say that it did not require a bill of exceptions to. exhibit what was already in the record. We stated that the record affirmatively showed, that the board of commissioners had no jurisdiction, and took it for granted that in such a case it would not be supposed that a bill was necessary. If it had been necessary to examine any matters outside of those properly disclosed by the record, then, doubtless, a bill of exceptions would have been necessary, but here the facts were fully and affirmatively shown by the record, and a bill of exceptions-could not have supplied any additional material information. Where full information and all essential facts are shown in the record, no bill of exceptions is necessary ; or, as was said, in Young v. Martin, 8 Wal. 354, no bill of exceptions is necessary where the error alleged is apparent upon the face of the record. A question such as appellees’ motion presented might have been made at any time, even in the highest appellate court. Indeed, no formal motion was necessary ; a suggestion of want of jurisdiction would have been sufficient. Without even a suggestion, ex mero motu, a court will set-aside a. judgment rendered without jurisdiction. Hervey v. Edmunds, 68 N. C. 243; Cannan v. Reynolds, 5 Ellis & B. 301; Coleman’s Appeal, 75 Pa. St. 441; Crane v. Barry, 47 Ga. 476; The State, ex rel., v. The Whitewater, etc., Co., 8 Ind. 320. No express act of appellants could have estopped, them from asserting that the commissioners had no jurisdiction, and, even if there had been no motion to dismiss, there-*231would have been no waiver. Thatcher v. Powell, 6 Wheat. 119; Shriver’s Lessee v. Lynn, 2 How. 43; Folger v. Columbian Ins. Co., 99 Mass. 267; Watson v. Bodell, 14 M. & W. 57; In re College Street, 11 R. I. 472; Davis v. Davis, 36 Ind. 160.
Petition overruled.