Opinion by
Jacobs, Chief Justice.In this cause a precipe was duly filed in the District court, within the three months next succeeding the term of the court in which the final judgment was rendered, and two errors were duly assigned therein, and due notice was served on the District Attorney. Upon that precipe and notice, the cause came into this court and is here for final review.
On the first day of the present term, the counsel for plaintiff in error, without leave — if leave was necessary — made an •assignment on the record, not only of the two errors assigned ■in the precipe, but also three other -specific assignments of error, •as well as one general assignment of all other manifest errors -existing in the record.
A motion is made to strike from the files of this court, ■this last mentioned assignment of errors. The question is, •ought this motion to be granted — and we are unanimously of the opinion that it ought to be.
If this was not a case of the deepest importance to this plaintiff in error, we would feel ourselves justified in closing this opinion, by the above announcement of what we deem the law to be, but as learned counsel for plaintiff in error have earnestly pressed, upon our attention their alleged right to make this new assignment of errors, we deem it not only justice to them, but to ourselves, that some of the reasons for this conclusion should be stated.
1. Our construction of the statute leads to no denial of justice, by the enforcement of a technical rule of law. The *437plaintiff in error should have a reasonable time from the date of the final judgment against him in the court below, in which to examine the record and assign his errors. That time is fixed by the statute, and is two years. We hold that this time is sufficiently liberal. If errors cannot be discovered and assigned within this time, it is presumable they do not exist. As some time must be fixed and always is fixed, after the lapse of which errors cannot be assigned, all the purposes of justice are promoted, if that time is sufficiently liberal for the purpose. We assume further as a manifest proposition, that the precipe is just as good a place for all the purposes of justice, for the assignment of errors as the files of this court. , There is no magic in the retention of the old common law privilege of assigning errors on the first day of the term. On the contrary, it is an obstruction of justice by promoting delay, or the hasty and unprepared discussion of the points involved. If the defendant in error cannot know upon what errors the plaintiff in error will rely, until the first day of the term, how is he to prepare to meet them at that term in an intelligent manner. He must either meet them then, or delay is the necessary consequence. How the code idea is, an open showing on both sides, so that there may be no delay — time for preparation and an intelligent trial. All o.f this, we hold to be accomplished by the construction given by us to the statute, and by our rules of eourt.
2. The ninth section of the organic act provides that “ writs of error, bills of exceptions, and appeals shall be allowed in all cases from the final decisions of the District courts to the Supreme court, under such regulations as may be prescribed by law.” Code 1863, page 34.
This undoubtedly means laws enacted by the Territorial Legislature. The mode or manner, including time and other essential circumstances, of taking a case from the District court to the Supreme court, by writ of error, is entirely statutory. Where is there any statute that allows or directs the assignment of errors on the first day of the term, or in any other place but the precipe? It is alleged that it can be found in section 325 of the criminal code of 1873. That provides it is true *438that the laws and usages of this territory relative to pleading and practice heretofore in force, in criminal cases, and nut inconsistent herewith, etc., are continued in force. An inspection of the records of this court shows that there has been no assignment of errors in criminal cases, on the first day of the terna, and on the records of this court for the past ten years; prior to that time there were such assignments — hence whatever might have been the legal foundation' of such a practice, it entirely fell into disuse, and at the time of the enactment of the code of 1873, there was no such practice and such a practice therefore, could not have been within the intention of the Legislature. The great idea of the code of 1873 was the assimilation of the form and mode of proceeding, not only in law and equity but also in criminal and civil law. Diversity was destroyed wherever one common, uniform mode of proceeding would sub-serve the purposes of justice. The code must be'read and interpreted with this idea always in mind. In accordance with this idea, full directions are given in regard to the mode of suing out a wi’it of error, and the mode and time of assigning errors, in the code of civil procedure and constant reference made to it in the code of criminal procedure; Writs of error shall be sued out and served in the same manner as notice in a civil action. Code, Section 298, page 247.
Now, how is this notice obtained in civil action? A precipe is filed with the clerk of the District court, where the final judgment is, which precipe must contain a particular description of the judgment, order or decision, and a particular description of the errors assigned, which precipe directs the clerk to issue a notice to the opposite party, and which notice is the substitute for the writ of error. Code, page 20, Section 432.
Now the above is the manner of suing out and serving notice in a civil action, and the statute says it shall be the same in a criminal action. No writ of error is issued in either, but it is deemed to be issued in both. Now the notice referred to in section 298 must, in the very nature of things, refer to and mean the notice spoken of in connection with the precipe, or it means nothing. There is no notice sued out and served in a civil action but this.
*439But the learned counsel for plaintiff in error contend that an actual writ of error is sued out in a criminal-ease. If this view is correct, he is not legally here and has no right to be assigning errors anywhere. But such a view is not only opposed "to a reasonable construction of the criminal statute, upon this subject, but to the uniform practice under that statute. The statute is not anew one; it has existed since A. D., 1863, at least. No writ of error has actually issued in a criminal case, or -at least, the learned counsel has shown none. Then if no writ of error actually issues, but a notice in lieu thereof, and if such notice can only be obtained by the filing of a precipe, the law 'tells us what that precipe must contain, a particular description of the judgment and the errors assigned therein, and these are the errors so assigned, which are to be heard and examined by "the Supreme court.
Again, Section 298 provides that the writ of error in a criminal action shall be served and returned, as in civil actions, blow how is a writ of errors served and returned in civil actions? Obviously by serving and returning a notice in the manner prescribed by the civil code.
Motion allowed.