27 Ark.] OE THE STATE OF ARKANSAS: 59 TEEM, 1871.] 'Harrison v. Tratlee and wife. HARRISON v. TRADEX AND WIFE. CONSTITUTIONAL LAW —Writs of Error, Clerks Indy issue.—Chapter 124, Gould's Digest, regulating the issuance of Writs of Error, is not in conflict with the present Constitution, and so much thereof, as has not been repealed by subsequent legislation, is in force, and the clerk of this doUrt is authorized to is g ue such writs in vacation; as Well as in term time. ERROR TO PAILLIPS CIRCUIT COURT. liOTION TO QUASH WRIT OF ERROR. - , Watkins & Rose and Palinei & Sanders, for Plaintiff. English, Gantt & English, for Defendants. BENNETT, the" 1st day of Jime, 1870, ..vvhen this court was not in sessiOn, and Without an : order of court, the clerk issued a writ of " error to Phillips county , Circuit Court, upon which the transcript; in the " above entitled Cause, has 'been. returned. The defendants•have filed " a Motion to ' quash the writ and strike the case from the docket .; because, First, there is no law authorizing the clerk of 'this conrt iSsue , Ei writ of error. 'Second; Said Writ was issned by the : clerk of this coUrt, j-une ist, 1870, when' the court IvaS net in sesSion, Without aii order of the court, and 'without authority of law:' Section 4, • Ai : t: 17/1, of the new " COnstitution, provides : "The Supreme ' Court shall haie general supervision and centrol over all inferior courts of lai and equity. It shall have power to issue itriis of . erior, supersedeas, certierati, habe a ' s • corpts, Mandamus, quo warrhnto, and other remedial writs,* and to hear and determine s the same. Final- judgment, in the inferior courts, may be bre:ought ' by writ of " error or by appeal, into the Suprethe Court, in such manner as may be prescribed by law." • Artiele• 15; section 16, - of the Constitution say g : "All laws of the State, not in conflict with this Constitutien; hall remain in full force until . otherwise provided by the 'General Assembly or until they expire by their own 'limitation." Section 859 Chapler 1, of the . Code of Practice provides : "The mode of bringing the judgment or final order of an inferior •
00 CASES IN THE SUPREME COURT [27 Ark Harrison v. Tradee and wife [DECEMBER court, to the Supreme Court for reversal or modification, shall be by appeal, which . shall be granted as a matter of right." We cann.dt say that the Legislature, by the above enactment, intended to abolish the writ of error ; even if it had done so, it would have been a futile atternpt, inasmuch • as the Constitution has given this court the power to issue it, that power would have been exercised in all, 'protler cases ; and had the Legislature failed to provide a manner for reaching this court .by that writ, it could, and would have made its own rule's for the exercise of that power. But we are not left in that dileMma. As has been seen by the 15th Article, 16th section, "that all laws not conflicting with it are . in force." , The old statute, in Gould's Digest, regulating the issuance of writs of error, not being in conflict with any part of the Constitution, is in force, or So much of it as has not been repealed by subsequent legislation. Some portion of this statute has been repealed, as for instance, section 879 of the Civil Code says : "No written assignment of error shall be necessary, but the judgment may be reversed or modified for any error 'appearing in the record, to the prejudice of the appellant." This repeals section 26, of chapter 124, of Gould's Digest, and it is not necessary to make any written assignment of error, as was the practice under the old law. Having decided that the old stafute is in force, section one of that law fully answers the second proposition, as raised by the defendants in error. It says : "Writs of error, upon any final judgment or decision, of any Circuit Court, shall issue, of course, in all cases, out of the Supreme 'Court, in vacation, as well as term time," etc. Shall issue out of the Supreme Court, not by order of—, issue as any other writ or summons, subject to the regulations prescribed bY law. Motion to quasii overruled.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.