Wike v. Lightner

The opinion of the court was delivered by Gibson, C. J. In substituting circuit courts for courts of Nisi Prius, to which a writ of error did not lie,, no alterations were intended but such as should be necessary to accomplish two things— .to enable the judge who tried the issue, to render judgment, and to restrict the lien of it to the county in which the record should be. Hence, an appeal- was particularly provided, and doubtless to preserve to the court in bank; the immeasurable advantages which, as a means of correction, the motion for a new trial affords in comparison with the writ of error; and hence it would be fair to imply the abrogation of the latter on the ground of intention. But this construction, which has been sustained by the Supreme Court of Massachusetts, on the basis of reason and good sense, is expressly-enjoined by our legislature, who have subsequently declared, that-remedies provided by act of assembly, shall be used in exclusion of remedies at the common law. How this happened to be thought inapplicable to civil- proceedings, would not be understood by any one who did not know with what reluctance the courts executed laws that were, at one time, supposed to be aimed at the profession. Its terms are broad and sweeping; and it,is part of an act which has entirely changed the forms of proceeding in debt, assumpsit and ejectment. Of its object, those who remember the temper of the .times, can best judge.- But whatever may have been the reluctance [291] of the courts then, we cannot refuse now, to execute the plain mandate of the legislature. There is no escape from'it here but by showing that there may be error, for which the appeal affords no remedy; and, were any such imaginable, We would be bound to allow the writ for its special correction. But an appeal may be taken in every case of. “ demurrer, special verdict, case stated* point reserved, motion in arrest of judgment, or for a new trial, or. to set aside a judgment,'discontinuance, or non prosand it is therefor© more extensively remedial than even the writ of error. As, then, it is adequate to all the purposes of redress, recourse is to be "had to it exclusively. ’ Tod, J., dissented. Writ of error quashed.