concurring:
I fully agree with my brother judges that the order appealed from in this case should be reversed; but the reasons upon which my opinion is founded are quite different from those stated in the opinion that has been delivered. In my opinion the pending cause, that is, the application for divorce, was a civil cause or suit within the meaning of section 1638 of the code, which declared that “the repeal by the preceding section of any statute, in whole or in part, shall not affect any act done or right accruing or accrued, or any suit or proceeding had or commenced in any civil cause before such repeal, but all rights and liabilities under the statutes or parts thereof so repealed shall continue and may be enforced in the same manner as if such repeal had not been made.” The pending proceeding for divorce, I think, was clearly within the saving by the section of the code. The nature of the suit or action for divorce is civil, and not criminal, and I think it is fully embraced by the definition of a civil suit or action, as given by the authorities. Weston v. Charleston, 2 Pet. 447; 2 Bish. Mar. and *453Div., Sec. 234. But if the pending proceeding at the time the code went into operation, from and after the first day of January, 1902, was not within the saving of section 1638 of the code, then I should be of opinion that the amendatory act of June 30, 1902, could have no application to this case, the decree of the court below having been passed on the 11th day of April, 1902, dismissing the bill for want of jurisdiction. In that view of the case, the decree was entirely right, and finally disposed of the case. There was no law at the time upon which the decree for divorce could be made for the cause alleged. The case, in that aspect of it, was, I think, clearly within the principle of the case of The Baltimore & P. Railway Co. v. Grant, 98 U. S. 398-403. It was not within the intent or purview of the -amendatory act of June 30, 1902, to open or vacate decrees that had made final disposition of the cause before the passage of the act; and, upon the assumption that the right to prosecute the proceeding h'ad not been saved by the section of the code referred to, there was no power or jurisdiction in this court to entertain an appeal within the time that an appeal could be taken from the decree.
I am of opinion, however, as already stated, that the proceeding was within the saving as provided by section 1638 of the code, and I therefore concur in the reversal of the decree appealed from.