Omtiiе 1st day of June, 1870, when this court was not in session, and without an order оf 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 tо quash the writ gnd strike the case from the docket) becausе, First, there is no law authorizing the clerk of this court to issue a writ of error. 'Second, Said writ was issued by the clerk of this court, June 1st, 1870, whеn the court was not in session, without an order of the court, and without authority of law.
Section 4, Art. VII, of the new Constitution, provides: “The Supreme Court shall have generai supervision and сontrol over all inferior courts of law and equity. It shall have power to issue writs of error, supersedeas, certiorari, habeas corpus, mandamus, quo warranto and other remedial writs, and to hear and determine the same. Trial judgmеnt, in the inferior courts, may be brought by writ- of error or by appeal, into the Supreme Court, in such manner as may be prescribed by law.”
Article 15, section 16, of the Constitution says : “All laws of the State, not in conflict with this Constitution, shall remain in full force until otherwise provided by the General Assembly or until they expire by their own limitаtion.”
Section 859 Chapter 1, of the Code of Practice provides: “The mode of bringing the judgment or final order of an infеrior court, to the Supreme Court for reversal or modifiсation, shall be by appeal, which shall be granted as а matter of right.”
We cannot 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 attempt, inasmuch as the Constitution has given this court the power to issue it, that рower would have been exercised in all propеr 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 rules 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writs of error, not being in conflict with any part of the Constitution, is in force, or so much оf it as has not been repealed by subsequent legislation. Some portion of this statute has been repealed, аs for instance, section 879 of the Civil Code says : “No written assignmеnt of error shall be necessary, but the judgment may be reversеd or modified for any error appearing in the recоrd, 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 stаtute is in force, section one of that law fully answers the sеcond proposition, as raised by the defendants in .error. It says : “Writs of error, upon any final judgment or decision, of any Cirсuit 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, by order of — ,- issue as any other writ or summons, subject to the regulations prescribed by law.
Motion to quash overruled.