delivered the opinion of the court.
In a proceeding commenced in March, 1849, Smith, the husband, obtained a decree against his wife, divorcing her from the bonds of matrimony, without service of process upon his wife, and without her appearance in the cause. In this petition, she is alleged to be a non-resident, and publication was made against her as such. This, as a proceeding instituted before the present code of practice went into effect, was a proceeding in •chancery. The act concerning divorces provides: “That the Circuit Court, sitting as a court of chancery, shall have jurisdiction in all cases of divorce and alimony or maintenance, and the like process and proceedings shall be had in said causes as are had in other causes on the equity side of the court.” (R. C. 1845, p. 426.) The act regulating practice in chancery, (art. 6, secs. 1, 2, 3 and 4, R. C. 1845, p. 851,) provides that, when a decree has been rendered in a chancery cause against a defendant who has not been summoned and has not appeared, such final decree may be set aside, if the defendant shall appear, and by bill of review, verified by affidavit, show cause for setting it aside as against equity. The time for filing such a bill of review is limited to one year after the service of notice of the decree upon the defendant, or to five years after the date of the decree, where notice is not given. The bill of review is required either to show that there is no equity in the original bill, or to contain such denials or allegations as amount to a defence upon the merits. When such bill, is filed within the time, and containing the requisite denials or allegations, the decree is set aside, the defendant in the original cause answers the original bill, and the case proceeds as other cases.
*168The wife, in the present case, filed her bill within the time limited by the statute, denying all the material allegations in her husband’s original bill, and Paying that the decree rendered against her be set aside and that she be permitted to answer. The Circuit Court set aside the decree, and gave the leave to answer. The answer was filed, showing, on her part, ground for divorce and praying for a divorce. The husband refused to proceed with the cause. The court heard the cause, dismissed the bill of the husband, and decreed a divorce in favor of the wife, with alimony. From this decree he has appealed.
1. As nothing appears before this court by any exception taken to any proceeding, we act only upon the questions arising upon the record proper. The statute which governs the case is clearly that which applies in all chancery cases under the code of 1845, and the review is to be applied for within the time and in the manner in that act provided. The section which requires the petition or bill of review to show that there is no equity in the original bill, or to contain'such denials or allegations as amount to a defence upon the merits, substantially prescribes the statements of the bill upon which the de« cree is to be set aside, and the defendant in the original cause permitted to answer. We have no accasion to examine the nature and objects of, and the modes of proceeding upon a bill of review in the general chancery practice. The statute 'allows a decree to be obtained against a defendant who has never been summoned, and has never appeared in the suit, and then provides a mode in which such defendant may be admitted to defend himself against the suit, even after a decree is rendered. It appears in the record that the husband, after obtaining the decree of divorce, was married to another woman, and this is urged as a reason against setting aside the decree. It is not perceived how the wrong done to the second wife should be any reason for denying the first an opportunity of vindicating herself against the charges of adultery and drunkenness charged in the original bill. Nor do we feel at liberty to indulge feel*169ings, or carry out any views of policy, against what we regard as the obvious meaning of the statute. We have nothing now to say about the effect of the proceeding in this case upon the second marriage or its issue, if there be any, because such matters have no connection with the questions before us.
We cannot consider the question, whether the wife made a proper affidavit to her answer to authorize a decree of divorce in her favor, because there was no exception to it taken in the court below.
There are no other questions in the case of any The decree is affirmed,
with the concurrence of Judge Ryland.