CHARLES C. WELDEN & others, pl'tffs in error, vs. THOMAS C. LEGATE, def't in error

CHARLES C. WELDEN & others, pl’tffs in error, vs. THOMAS C. LEGATE, def't in error. Error to Iowa county. A writ of error will not lie to reverse the decisions of the District Courts in chancery causes; the only remedy for the party aggrieved, is by appeal. A bill in chancery was filed by Legate against Walden and others in the Iowa District Court. The defendants were non-residents, and upon taking the ordinary rules, and publishing notice, the bill was taken pro confesso for want of an answer, and a final decree rendered in favor of Legate. The defendants below sued out a writ of error to reverse the decisions of the District Court; and at this term the defendant in error, by his counsel, moved the court to quash the writ, because no writ of error lies in chancery proceedings. Dunn, for def’t in error, and in support of the motion: Errors in chancery proceedings can only be corrected on appeal. The organic law provides for writs of error to judgments at law, and appeals in chancery causes. The statute of the Territory (see Stat, Wis, 275) allows an appeal, and regulates the man-nerof taking it. Where the statute provides a particular remedy^ and points out the mode of pursuing it, by necessary implication it prohibits any other, and where an appeal is provided for, the writ of error is prohibited. Eastman, contra: Decrees in chancery, when the whole case is spread upon the record, arc as much the subject of a writ of error as a judgment at law. The statute of the Territory is cumulative, and provides for superseding the decree, but it does not ertclude the writ of error,which is a common law remedy to correct the errors on the record. The object of the appeal is to remove the testimony in the cause into the Supreme Court, in ortjer that the merits of the case may be reviewed, and if the court below erred, either upon the facts or the law, that such error may be corrected. In some of the States, under similar statutes, the practice is to review chancery causes either on appeal or writ of error; 3 Binney, 27G. At Common law a writ of error would not lie upon a subpena in chancery, because the court of chancery is not a court of record; but wherever the proceedings are of record, as in tho potty bag office or in partition, error will lie; 9 Viner’s Ab. 474; Harrison’s Digest, -1006. Our courts of chancery are courts of record, and therefore a writ of error will lio to review their proceedings. The acts of Congress allow of appeals in chancery causes, to tho Supreme Court of the United States, and yet we find that court frequently reviewing cases brought up by writ of error. The same practice prevails, under similar laws, in Kentucky and Ohio. Thus it appears, that where the proceedings in chancery are spread upon the record, as with us, writs of error and appeals are concurrent remedies. Dunn, in reply: In all the cases referred to, where chancery causes have been brought up by writ of error, it has been by statutory authority. The acts of Congress sanctioned the practice of the Supreme Court, and the laws of Ohio and Kentucky authorize the concurrent remedies to be used. It is a well settled principle, that wherever a statute gives the right of appeal, a writ of error will not lie unless expressly authorized by the statute. Jarvis vs. Blanchard, 6 Mass. Rep. 4j Savage vs. Gulliver, 4 do. 174. [MAJORITY — Judge Lmrr] Judge Lmrr delivered the opinion of the Court, quashing the writ: . Tin's case carne up on error to the District Court of Iowa coun* ty, sitting as a court of chancery, and is here met by a motion on the part of the defendant in error, “ to quash the writ of error liere^ in1 and dismiss the proceedings from this court for the following reasons: 1. Wo writ of error lies in a chancery cause from the District Courts to tho Supreme Court of Wisconsin Territory, but an appeal alone lies.” In support and resistance of this motion, many authorities have been referred to. Is it truj, that a writ of error does not lie from this court to the District Courts in chancery causes? For, if that be true in law, then the writ was improvidently awarded, and would have to be quashed. By the 9th sec. of tho act establishing the Territorial government of Wisconsin, the judicial power of the Territory is “ vested in a supreme court, district courts, probate courts, and injustices of the peace.” “And the said supreme and district courts, respectively, shall possess chancery as weil as common law jurisdic*tion.” “And writs of error, bilis of exceptions, and appeals in chancery causes, shall be allowed in all causes, from the final decisions of tho said district coutts to the supreme court, under such regulations as may be prescribed by law, but in no case removed to the supreme court,shall a trial by jury be allowed in said court.” So far, therefore, as this act of Congress, commonly called the organic law (and which is to us as a constitution,) is concerned, it is very plain, that the mode provided for taking cases in chancery from tho District Courts to the Supreme Court, is by appeal, and in no other way. The Legislature of the Territory, as will be seen on page 295 of the Statutes of Wisconsin, sec. 101, has prescribed the regulations, as they were required by the organic law to do, in which it is provided, that “ when any person, being complainant or defendant, shall think himself aggrieved by ills decree or final order of a district court sitting as a court of chancery, such person may enter an appeal within thirty days to tho supreme court, from such decree or final order, on giving bond with good security, in such sumjas the judge of the district court shall order, conditioned to pay, satisfy and perform tho decree or final order of the supreme court, and all costs, in case die decree or final order of the district court shall be affirmed; and if the decree or final order of the district court shall be confirmed, the supreme court may award such dam»" ages against the appellant as they may think proper, not exceed1 ing twenty-five per cent, on the amount of the money, or othei? subject matter of such decree.” Thus it will be perceived, that the legislature, in prescribing the regulations for an appeal, have made them peculiar, differing altogether from the regulations prescribed for taking up by writ of error, its appropriate and undisputed subjects. Parsons, C. J. in 4 Mass. Rep. page 178, in disposing of a similar question, says, in speaking of an appeal, “ it is less expensive and more convenient than a writ of error, and further relief may be granted on an appeal than can be on a writ of error. On an appeal, the cause of error may be removed by amendment; mistakes in fact on the merits, maybe corrected; neither of which can be done on error; and at the same time, an erroneous judgment below may be amended by the court having appellate jurisdiction. The statute in giving an appeal, has, in our opinion, taken away, by reasonable implication, the remedy by error, unless in cases where the aggrieved party, without any laches on his part could not avail himself of an appeal. But if it appears on the record that the plaintiff in error might have appealed, the court will, ex officio, quash the writ; or the court will quash it on a plea of abatement, disclosing the plaintiff’s remedy by appeal. In this case, it appears on the record, that the plaintiff in error might have sought his remedy by an appeal to the common pleas, lie cannot come to this court per saltum, but he ought to have appealed, and if dissatisfied with the judgment of the common pleas, he might then have sued out his writ of error.” In the examination of the case at bar, it not only appears that the plaintiffs in error might have appealed by the provisions of the statute, but that they did pray an appeal from the District Court, which was granted to them, and why they abandoned that clear and undisputed remedy, for one so questionable, this court cannot even conjecture. Parsons, C. J. in 6 Mass. Rep. page 5, reiterates the same opinion. See also, 2 Wheat. Rep. 132. It would be difficult to conceive upon what ground, under the peculiar statutory provisions as contained in the organic law and the act of the legislature of the Territory, the idea of bringing the cause here on writ of error rested, unless it was supposed, that there was something in the very nature of a writ of error which bid defiance to, and rode down all legislative provisions; but in-astnuch as we cannot recognize in it any such quality, but on the contrary, declare it as fully a subject of legislation as appeal is, we must hold it equally liable to legislation. The statutes, as we have already 'seen, provide an appeal, and an appeal only, as the proper remedy for the party aggrieved, and to which we must hold the plaintiffs in error as the only proper remedy. It is therefore considered, that the writ of error was improvidently sued out, and that the same be quashed. Eastitaw, for plaintiffs in error. Duns, for defendant in error.