on petition eob beheaeing.
The brief of plaintiff in error, in support of the petition for a rehearing, contains a stricture of our action in dismissing the writ upon a question of practice which was not raised at the original hearing, and upon which counsel were not then heard. The pertinency and force of the adverse criticism are not unappreciated, and for this reason, as well as others, we have given counsel ample time to file briefs in which to embody the result of their investigation. This they have done, and while their efforts have not affected á change in our former conclusion, they have led to a modification of the original opinion.
In that opinion it was said, inter aha,-that a review was sought by plaintiff in error of an inseparable part of the decree, which, in and of itself, did not constitute such a decision as was the subject of examination in an appellate court; but upon further consideration we now assume, with plaintiff in error, that a review is sought of the entire decree as, entered below; hence that portion of the opinion pertaining to the inseparable part of the decree is withdrawn, and another opinion, modified in this and in some other particulars, is substituted therefor.
*472It is unquestionably true, as counsel contend, that at the common law a writ of error is a writ of right. That it is not so in this state has been decided in the case of People v. Richmond, 16 Colo. 274. If, however, it be conceded that with us it is a writ of right when the statute regulating the writ is complied with, it does not necessarily follow that the ■plaintiff in error is entitled in this proceeding to maintain it.
The case of Harding v. Larkin, 41 Ill. 413, is cited as authority for the proposition that, under the practice in this state, a plaintiff may prosecute a writ of error, although the defendant has appealed from the same judgment; and one of these proceedings does not affect the other, and both may progress at the same time. Brennan v. State Bank, 50 Pac. Rep. 1076, holds that the failure of an appellee in the court of appeals to assign cross-errors does not cut him off from a right to a subsequent writ of error.
In addition to these cases, cited by plaintiff in error, are the cases of Page et al. v. People ex rel., 99 Ill. 418 and Wickliffe v. Buckman, 12 B. Monroe, 424, 7 Enc. Pl. & Pr. 855, 856, holding that a statute similar to section 386 of Mills’ Code, giving to defendant in error, or appellee, the right to file cross-errors, was permissive only, and the right itself cumulative, and that the failure to exercise it does not take away the previously existing right to maintain a writ of error, after a determination of an appeal from, or writ of error to, the same judgment prosecuted by the other party. But this doctrine is by no means authority for the claim of plaintiff in error that it may prosecute this writ. The facts of this case do not call for a definite announcement by us of the consequences of a failure to assign cross-errors; for the record discloses that plaintiff in error seeks to have us examine and determine precisely the same questions that were decided by the court of appeals.
That this is so seems too plain for argument. For, by the decision of the court of appeals, the entire decree, including the part to which plaintiff in error now objects, was affirmed. The question whether the defendant should be absolutely *473enjoined from permitting any tailings whatever to be discharged into the stream, or whether its only duty was to take all reasonable precautions to impound the tailings, was a question presented under the former record, was then passed upon, and was necessarily involved in the affirmance. In other words, an affirmance of the decree in its entirety was an affirmance of all its parts.
In each of the cases cited the questions determined upon the first appeal, or writ of error, were entirely different from those raised on the second. In the Harding case it also appeared that in actions at law cross-errors might not be assigned. In the Page case the court says that if the question raised on the second writ of error was presented when the record was before the reviewing court under the first writ, it cannot be again considered. In the Brennan case our court of appeals says: “ Whatever has been decided by an appellate court on one writ of error cannot be re-examined on a subsequent writ brought in the same suit.” So that where it is ruled that a determination by an appellate court of an appeal, or writ of error, prosecuted by a defendant does not preclude the plaintiff from prosecuting a subsequent writ of error to the same judgment, this means that the questions presented under the second, or subsequent, writ must be different from those decided under the former proceeding. The same questions may not thus be reexamined. In the Brennan case particularly the court takes occasion to reiterate that the questions raised under the second writ were radically different from those decided under the former.
Where the first review is had, and the cause determined, in one appellate court, and the second writ of error is sued out from another appellate tribunal, the rule, of course, is the same as if both proceedings were in the same appellate court.
But counsel say that the fact that the court of appeals has affirmed this judgment is dehors the record, and, further, that this writ of error was sued out before the defendant *474perfected its appeal. Certainly, they are not entitled to complain, for they, themselves, called our attention to this decision, filed in this court their brief used in the court of appeals, and asked us to examine the record in that court. Upon this request we did so, and learned that precisely the same question was raised and decided by that court which we are here asked to re-examine in an independent proceeding-
•That this writ was sued out before the appeal was taken we deem immaterial. Counsel did not indicate, or suggest, to that court, so far as we are advised, that this writ was pending here, involving the same questions as the appeal there. Decision there was first had. The court had jurisdiction, and no review of its judgment was sought by plaintiff.
A moment’s reflection will show what a perversion of justice it would be, and how manifestly unfair to both courts, if plaintiff in error should now be permitted to have examined and decided questions upon tins writ which it permitted the court of appeals to decide without suggesting that, in an independent proceeding in the court of last resort, the same questions were pending. It should not be allowed to sit quietly by, and speculate upon the chance of obtaining a favorable decision in the court of appeals, and, after losing, have a second examination, in an entirely independent proceeding, of the same questions. The only way that this court has jurisdiction of the case, if at all, would be upon an appeal from the judgment of the court of appeals, or under a writ of error sued out to its judgment from this court.
The original opinion, as modified, is adhered to,- and the petition for rehearing is denied.
Rehearing denied„
Mr. Justice Gabbert not sitting.