The question is, whether after an appeal has been perfected, and owing to the neglect of appellant, has been dismissed, he can afterwards prosecute a writ of error to review the same alleged errors.
Section three hundred and thirty-three of the Practice Act is in these words:
" A judgment or order in a civil action, except when expressly made final by this act, may be reviewed as presented by this title, and not otherwise."
There is nothing in the Constitution preventing the Legislature from limiting the mode of review as they might think proper. (Const., Art. VI., Sec. 4.)
It is difficult to perceive how, in any case, a writ of error will lie, without directly infringing this statute.
The section above quoted, and the forty-fifth rule of the Supreme Court can only be reconciled by considering the writ of error and appeal as identical. If so, when a party has lost his right to appeal, he has forfeited his right to a writ of error.
The object of rule fourth of this Court, was to enforce diligence upon those parties who were protracting litigation by removing a cause to this Court.
This object would be totally defeated if this writ can be sustained. If a party can first appeal, thus causing a delay till the next term of this Court, put the respondent to the trouble of procuring a certificate, and moving this Court for a dismissal, (in all which proceeding the appellant does not become charge-able with one cent of costs,) and afterwards commence proceedings anew by a writ of error, to procure a review of the same alleged errors, then the rule referred to is worse than nugatory. It furnishes a convenient instrument to an obstinate litigant with which to increase the trouble and expense of his adversary.
After the dismissal of the appeal, the party has still the right to move thatit be reinstated, and the Court will grant the motion if he can show himself not in fault.
In this case, the dismissal was ordered in the first week of the April term. Had the dismissal been in any way unjust to appellants, he had full opportunity to have shown the fact to this Court, and secured the reinstatement of the case.
Rule forty-eight of this Court, it is believed, precludes a party from escaping the consequence of his negligence on an appeal by resorting to a writ of error, which is to be governed by the same rules.
No cases precisely in point can be found, but those below cited establish this.
When a statutory remedy is given to a party dissatisfied with the judgment of an inferior Court, the common law remedy is taken away, except in cases when, without any negligence, the party is not able to avail himself of the statutory remedy. (Savage v. Gulliver , 4 Mass. 177; Jarvis v. Blanchard , 6 Mass. 4; Cook v. Hoyt , 13 Ill. 144; White v. Ferye, 2 Gil. 65.)
The case presents stronger objections to the allowance of the writ than any above, in this, that our statute expressly denies the writ, and also, that the rules of this Court gave tothe appellant the opportunity of excusing his delay and having the appeal reinstated.
JUDGES: Burnett, J., after stating the facts, delivered the opinion of the Court. Terry, C. J., concurring.
OPINION
BURNETT, Judge
The appellate power of the Supreme Court is given by the fourth section of the sixth article of the Constitution, which expressly empowers this Court to issue all writs and process necessary to the exercise of its appellate jurisdiction. The Legislature, therefore, can pass no Act impairing the exercise of this appellate power.
But while the Legislature cannot substantially impair the right of appeal, it is certainly competent to regulate the mere mode in which this right must be asserted. The Constitution only empowers this Court to issue such writs and process as may be necessary to the exercise of its appellate jurisdiction; if this appellate jurisdiction can be exercised without this process, then it cannot be necessary, and should not be issued.
In the case of Savage v. Gulliver , 4 Mass. 177, it was said that " the statute, in giving an appeal, has, in our opinion, taken away by a reasonable implication, the remedy by error, unless in cases where the aggrieved party, without laches on his part, could not avail himself of an appeal." (See also, 6 Mass. 4; 2 Gil. 65; 13 Ill. 144.)
But the construction of our Practice Act is not left to rest upon reasonable implication. The ninth title of the Act relates exclusively to appeals, and the three hundred and thirty-third section provides that " a judgment or order in a civil action, except when expressly made final by the Act, may be reviewed as prescribed by this title, and not otherwise."
This provision is plain and positive, that a judgment or order, may be received as prescribed by that title, and not otherwise. If, therefore, an appeal be given by that title in a particular case, the judgment or order can only be reviewed in the manner therein prescribed. In reference to cases where no appeal is given, this negative provision, " not otherwise," need not apply.
Our conclusion is that in all cases where an appeal is given by the statute, that remedy is exclusive and must be pursued, and that a writ of error will only lie in cases where no appeal is given by the Act. If, from any excusable cause, the party has been prevented from prosecuting his appeal, his remedy is by motion to reinstate the case. And if he has been prevented from making this motion at the same term of the Court at which the appeal was dismissed, he may, upon a proper showing, and after due notice to the respondent, make the motion at a subsequent term. The rules of this Court are always under its control, and their application may be enlarged in special cases.
Motion sustained.