The writ of error in this case is certainly without precedent, and has not the slightest foundation either on principle or authority for its support.
Wood, at whose instance the writ of error was issued and in whose name it is prosecuted, was not a party to or the representative of either of the parties to the suit which he seeks to bring to this court by the writ. And so far as can be seen from the transcript of the record returned with the writ, he has no interest therein or privity with the parties thereto. It was decided by this court, as long ago as the case of Smith v. Gerlach, 2 Tex., 424, and has never been since questioned, “ that this writ can only issue at the instance of a party to the suit, or of one whose privity of estate, title, or interest appears from the record of the cause in the court below, or who may be the legal representative of such party.” The rule thus announced is, indeed, an elementary principle, which has come down to us from the earliest days of the common law. (Townsend v. Davis, 1 Kelly, 495; Clayton v. Beedle, 1 Barb., 11; Watson v. Willard, 9 Penn. St., 89; Green v. Watkins, 6 Wheat., 260; Tidd’s Prac., 1134, et seq.; 3 Bac. Abr., 330.)
If the facts alleged in the petition for the writ of error, upon which Wood relies to show his right to prosecute the writ, and to be relieved by the reversal of the judgment, entitle him to relief, most certainly he must seek his relief in a court of original jurisdiction. Kone of these facts are shown by the record, and none of them belong in any *543manner to it. They may be denied by the opposite parties. If so, they unquestionably would be entitled to a trial upon them before a jury. For this court to consider or pass upon the matters alleged in the petition would be in plain violation of the Constitution, by which, in respect to rights such as here presented, it is unquestionably restricted to “ appellate jurisdiction only.” (Const., Art. V, sec. 3.) Certainly by no rule of interpretation, however liberal, can the last clause of this section of the Constitution, giving to this court “ power to ascertain such matters of fact as may be necessary to the proper exercise of its jurisdiction,” be so tortured as to authorize it to take original jurisdiction and determine controverted matters of fact, upon which the rights of the parties and not the power or ability of the court to exercise its appellate jurisdiction may depend.
The motion to dismiss the writ of error is sustained.
Dismissed.