A writ of error is considered, generally, as a new action ; Gregg v. Bethea, 6 Porter (Ala.) 9. It does not vacate the judgment of the court below ; that continues in force until reversed ; Railway Co. v. Twombly, 100 U. S. 81, 25 L. Ed. 550. If such writ can ever be issued nunc pro tune after the lapse of time allowed by law for bringing suits in error, the default must be attributable solely to official delinquency ; Knight & Knight v. Towles, 32 Fla. 473, 14 South. 91.
If the common law is adopted in a state, the writ of error is introduced as part of that system ; Moore v. Harris, 1 Tex. 36 ; but it is said that it is not a new action, but a continuation of the same one transfer red to the appellate court for review ; Cor bett v. Territory, 1 Wash. T. 434 ; the allow ance of such a writ is a matter of judicial determination on consideration of the suffi ciency of the grounds for it stated in the pe tition and assignment of errors ; Simpson v. Bank, 129 Fed. 257, 63 C. C. A. 371; an ap peal is a matter of right ; Lockman v. Lang, 132 Fed. 1, 65 C. C. A. 621; Simpson 'v. Bank, 129 Fed. 257, 63 C. C. A. 371; where it was said, in reference to the rule requiring filing of an assignment of error, "no court or judge has any jurisdiction or power to condition allowance of an appeal upon his considera tion or determination of the question whether or not the applicant presents alleged errors, which form reasonable grounds for the re view of the decision below. That question is reserved for the consideration of the appel late court exclusively" ; and it was held that, notwithstanding the rule, the assign ment of errors need not be filed before an al lowance of appeal.
Where one court administers law and equi ty, an appeal and writ of error are some times taken in a case, because of doubt whether it is strictly legal or equitable. An appeal and writ of error to review the same adjudications is not only proper, but com mendable, where there is just reason to doubt which is the proper proceeding to give juris diction to the appellate court and that one will be dismissed which is ineffective, and the case will be reviewed according to the rules of the method applicable to it ; Lock man v. Lang, 132 Fed. 1, 65 C. C. A. 621; but some courts hold that the two remedies can not be pursued simultaneously, but that an appeal must be dismissed before a writ of error is taken ; State v. Thompson, 30 Mo. App. 503.
While the word appeal has a strict tech nical definition, it is frequently used as em bracing all kinds of proceedings for the re view of causes ; City of Rockford v. Comp ton, 115 Ill. App. 406 ; but in states adhering to common law forms an appeal will not lie from a judgment at law ; Files v. Brown, 124 Fed. 133, 59 C. C. A. 403 ; Roberts v. Ry. Co., 138 Fed. 711, 71 C. C. A. 127 ; Trabue v. Williams, 46 Fla. 228, 35 South. 872 ; Sw ings v. Hoffine, 67 Neb. 26, 93 N. W. 186 ; and in jurisdictions where the same courts administer both law and equity appeals and proceedings for review for errors of law are frequently governed by like rules ; Traders' Ins. Co. v. Carpenter, 85 Ind. 350. A writ of error is the proper method of reviewing a judgment of the supreme court of a territo ry in an action at law tried without a jury ; National Live Stock Bank of Chicago v.
Bank, 203 U. S. 296, 27 Sup. Ct. 79, 51 L.
Ed. 192.
Where a common law form of reviewing statutory proceedings does not exist or is not resorted to, the conditions and form of ap peal depend entirely upon statute and can not be changed or aided by judicial action ; People's Ice Co. v. The Excelsior, 43 Mich. 336, 5 N. W. 398. An appeal is a continuation of a suit, whereas a writ of error is consid ered a new action ; Macklin v. Allenberg, 100 Mo. 337, 13 S. W. 350 ; the right of ap peal in civil actions being unknown to the common law and of statutory origin, it is necessary that the requirements of the stat ute be strictly complied with to confer ju risdiction on the appellate courts ; Arkansas & 0. R. Co. v. Powell, 104 Mo. App. 362, 80 S. W. 336.
A writ of error is a writ of right which is grantable ex debito juatitice; Skipwith v. Hill, 2 Mass. 35. The right to an appeal or writ of error cannot be refused, how ever indifferent or baseless the demand on the merits may be ; People v. Knickerbocker, 114 539, 2 N. E. 507, 55 Am: Rep. 879; State v. Judge of Superior District Court, 28 La. Ann. 547 ; McCreary v. Rogers, 35 Ark. 298 ; Ridge ly v. Bennett, 13 Lea (Tenn.) 206. It is the constitutional right of every citizen to have his case reviewed in one form or another by a court of error ; 1 Bland. 5 ; but in another state it is said not to be a constitutional right but subject to legislative control ; Mes senger v. Teagan, 106 Mich. 654, 64 N. W. 499. A suit at law can be reviewed only on writ of error; Behn, M. & Co. v. Campbell, 205 U. S. 403, 27 Sup. Ct. 502, 51 L. Ed. 857; and an equity cause cannot be reviewed on writ of error; Files v. Brown, 124 Fed. 133, 59 C. C. A. 403; Nelson v. Lowndes County, .93 Fed. 538, 35 C. C. A. 419 ; Grooms v. Wood, 43 Fla. 50, 29 South. 445 ; Ex parte Sanford, 5 Ala. 562 ; Delaplaine v. City of Madison, 7 Wis. 407; Evans v. Hamlin, 164 Mass. 239, 41 N. E. 267 ; Hayes v. Fischer, 102 U. S. 121, 26 L. Ed. 95. But see contra, Woodard v. Glos, 113 III. App. 353; but the error of a chancellor in refusing to grant an appeal on dismissal of injunction bill should be corrected by writ of error ; Boyd v. Knox (Tenn.) 53 S. W. 972. A writ of error will not lie in a divorce case, an appeal is the only remedy; Miller v. Miller, 3 Binn. (Pa.) 80 ; Parmenter v. Parmenter, 3 Head (Tenn.) 225. But this does not apply to a decree for alimony, which is subject to revision by writ of error ; McBee v. McBee, 1 Heisk. (Tenn.) 558; an appeal and not a writ of error is the proper proceeding to review probate or ders ; Horner v. Goe, 54 Ill. 285 ; Peckham v. Hoag, 92 Mich. 423, 52 N. W. 734 ; Shay v. Henk, 49 Pa. 79 ; but a writ of error lies to revise probate proceedings which are strictly according to the course of the com mon law ; Fitzgerald v. Com., 5 Allen (Mass.) 509; or a proceeding for the probate of a will in which the parties have a right to a jury trial ; Ormsby v. Webb, 134 U. S. 47,10 Sup. Ct. 478, 33 L. Ed. 805 ; or where a case had been appealed from the probate court to a law court and the decree affirmed ; Brun son v. Burnett, 1 Chand. (Wis.) 9. A writ of error will lie in cases where an appeal is not allowed ; Ex parte Thistleton, 52 Cal. 220; Haines v. People, 97 III. 161; or if the ag grieved party cannot avail himself of an ap peal ; Valier v. Hart, 11 Mass. 300.