Marinda v. Dowlin ( 1855 )

Thurman, C. J.

"Under the practice act of 1831, a judgment could be reviewed on a writ of error sued out within five years after its rendition. But this act was repealed by section 606 of the code, with no other saving than of actions, suits, or writs, pending when the code took effect, and by section 530, writs of error in civil cases are expressly abolished. See Code, sections 530, 602, 606, and 610. By section 515 a petition in error is given, and by section 602 it is declared that “ the provisions of this code shall apply after a judgment, order or decree heretofore or hereafter rendered, to the proceedings to enforce, vacate, modify or reverse it, except as provided in section five hundred and thirty-three.” Section 533 relates to chancery proceedings only. One of the provisions above referred to is found in section 523 which declares that “ no proceeding for reversing, vacating, or modifying judgments or final orders shall be commenced unless within three years after the rendition of the judgment, or making of the final order complained of; or, in case the person entitled to such proceeding be an infant, a married woman, or person of unsound mind, or imprisoned, within three years as aforesaid, exclusive of the time of such disability.” The language of these sections is too explicit to leave room for doubt, and a court can not do otherwise than follow its natural import. It is plain, that except in a case of disability as aforesaid, a petition in error can not be sustained unless filed within three years after the rendition of the judgment sought to be reversed, whether it was rendered before or after the code took effect. In coming to this conclusion we have not overlooked the savings in sections 6 and 8, but they do not touch *the present question. A right to institute a proceeding in error is rather a right of appeal than a right of action, and it was perfectly competent for the legislature to curtail it as they have done.

The leave given to file this petition was improvident and must be rescinded and the cause be stricken from the docket.