Opinion on motion to dismiss, by
Lewis, Chief Justice.The bill in this cause was filed sometime in the fall of 1872.
The decree was rendered August 19th, 1873.
During the time of the proceedings in the District court to decree, the code of 1869, as amended in 1871, was in force.
Section 2, of code of 1869, abolishes all distinctions between law and equity, and declares that there shall be but one form of action, to be called a civil action.
Section 432 declares that every final judgment of district court, in a civil action, may be re-examined; upon a writ of error, in the Supreme court, for error of law. * * The writ shall be taken within three months after final judgment: Provided, That if the party entitled to the writ shall be absent from the Territory, and shall not be served with process, personally, * * the writ may be made returnable at next term, after removal of disability.
Under the provisions, therefore, of the code of 1869;* all actions to enforce private rights were called civil.actions-, and final judgments, in all civil actions, were to be re-examined in this court by writ of error.
The term, civil actions, under that code, included actions at law and suits in equity, and all proceedings in civil actions were to be conducted in accordánce with the provisions of the code; appellate as well as original.
In 1871 a radical change was made, in our code'of 1869; Section 2 was amended, so as to read thus: “All common law forms of action- are hereby abolished, but the distinction between actions at law, and suits in chancery shall bé preserved, and pleadings and proceedings in actions at law shall be as prescribed in this act, and pleadings and proceedings in suits in chancery shall be as prescribed by laws of the United States,, and by the rules prescribed by the Supreme court of the United. States, for courts of. equity of the United States.”
*492Now this declaration, that the pleadings and proceedings in actions at law shall be as prescribed by this act, of course refers to code of 1869, as amended in 1871, which is, in terms, an act to regulate the practice and proceedings in civil actions, and, in the absence of the latter part of the section, this code would also regulate the practice in suits in equity.
But the declaration is plain and positive, not only that the distinction between actions at law and suits in chancery shall be preserved, but in addition, it is declared, that the pleadings and proceedings in suits in chancery shall be as prescribed by the laws of the United States, and the rules of the United States .Supreme court for courts of equity of the United States.
'The legislature, by this amendment of Section 2, adopted the laws of the United States and rules for equity courts of the United States, as the sole and only law, in [pleadings and proceedings, in equity, in this Territory; and the provisions of the code were applicable only to such civil actions as were actions at lam, save, and except, Sections 68, 64, and 65, were made applicable to suits in equity, in so far as said sections do not conflict with said rules.
And power was conferred upon the Supreme court, by proviso to Section 291, to prescribe the manner of taking appeals from decrees of the District court to the Supreme court of the territory. ' '
This was so held by this court in Shockley vs. Brown, et al., December term, 1872. With this ruling we are satisfied.
Under the laws in force, therefore, at the .time of the decree, in this cause, the defendant had the right of his appeal to this court, at any time, within two years from date of decree, that being the time fixed, by the laws of the United States, for an appeal from the Circuit to Supreme court of the United States. Revised Statutes United States, Section 1008.
The writ of error, provided by the code of 1869, as amended in 1871, Section 432, was applicable to civil actions at law.
The Supreme court of this Territory made rules, regulating the manner of such appeal; whether the party was bound to *493pursue the mode pointed out by the rules of this court, or the laws of the United States, which were adopted by our legislative assembly, is wholly immaterial, for, in any event, he, at once, after decree, acquired the right of having his case reexamined in'this court.
But a short time after such decree, the legislature of this Territory repealed the law giving to him his right of appeal under the law as enacted in 1871, and by statutes of 1873, code, Section 2, it was declared that there -shall be but one form of action in this Territory of enforcement of private rights, which shall be called a civil action. That civil actions be commenced by complaint and summons (Code, Section 59.) That all forms of pleadings, heretofore existing in civil actions, be abolished, and hereafter the forms and rules for determining the sufficiency of pleadings be determined by the code, (Code, Section 70), and finally final judgments of the District courts, in all civil actions must be by writ of error. Code, Section 430.
How the repeal of the code of 1869, as amended in 1871, took away from the plaintiff in error his right to have his case re-examined in this court, unless it be saved by Section 697-699, code of 1873.
Section 697 provides that in actions already commenced, the pleadings had to form issues, the manner of procuring testimony, the examination of the parties, the time and rendition of judgment, and all proceedings shall conform to this act as far as practicable; and by Section 699, the rights acquired under existing laws shall not be affected.
It has been held by this court that a writ of error is not a new action, but the continuation of the same action, which is but transferred to the Supreme court for review. Manning & Hawk vs. Montgomery, December term, 1873.
Bor the purpose of appeal, the action is practically pending in the court below, until the time for appeal has expired.
It is an action there commenced, and upon which final judgment has been rendered in the District court; but there pending for the purpose of an appeal to this court.
*494It is not declared by Section 697 that in all cases commenced in District court and not there determined by that court, that the proceedings shall conform to the code of 1873, but all actions commenced, the proceedings to trial and judgment, and all proceedings; these will of course include proceedings after, as well as before judgment, and among many proceedings after judgment is that of bringing the cause to this court for re-examination.
The Organic Act, section 9, provides that writs of error and appeals shall be allowed in all cases as prescribed by law, and the legislature no doubt intended to provide for all cases.
It is not reasonable to hold that the object and purpose of Section 697-699 were to save all actions pending, including actions wherein judgment had been rendered in the District court, and the time for taking an appeal had not expired.
Is it not perfectly practicable to make the appellate proceedings conform to the code of 1873?
We think that the intention of the legislature is expressed in these Sections 697-699, to so apply the remedy.
But it is insisted on the one hand that such ruling will make the law retrospective, and on the other, that such change of remedy will, to some extent, deprive the plaintiff in error of the full benefit of his appeal on the hearing in this court.
It is well settled that courts will give laws retrospective operation when it is plain that the legislature so intended them, and this is a principle, says Sedgwick, which, though lost sight of in many cases, has been steadily adhered to. Sedg. Stat. Law, 190.
And further it is competent for the legislature to pass acts retrospective in their character, notwithstanding their operation may be to affect pending suits, and to give a party rights he did not before possess, or to modify cm existing remedy. Ibid, 201.
The effect of requiring chancery causes to be brought to this court by error, instead of appeal, was to modify the remedy existing at the time of the passage of the code of 1873.
*495This code has been confirmed by act of congress so far as it authorizes a uniform mode of practice at law and in equity.
The plaintiff in error, we think, has the right to bring his case to this court for review in accordance with the provisions -of code of 1873.
It is apparent, from theiS papers on file in the cause, the affidavit for publication, order of publication, and other papers, that plaintiff in error was, when suit commenced, decree rendered and writ of error sued out, a non resident of this territory.
We are of opinion that the disability specified in Section 430 of the code, was removed when he filed his precipe in the District court for a writ of error. It is fully apparent that he was, at no time, personally served with process, nor had he appeared in the action.
That a writ of error will lie from a judgment by default, we entertain no doubt. This court exercised such jurisdiction, in the case of Manning & Hawk vs. Montgomery, and reversed a judgment by default, rendered in the court below.
As to the point made that the writ is prosecuted in the name of one person, defendant only, our statute gives to any person, aggrieved, the right to prosecute the writ, if he be a party, or privy to the judgment (Code, Section 44), and if it shall appear that any other person should be made a party to the writ of error, this court can require such person to be made a party, and direct the manner of notice to bring him in. Code, Section 442.
The motion to dismiss must be denied.