dissenting.
I dissent altogether from the reasoning and conclusion of my associates. In this state the writ of error in civil, cases has been abolished. But the right to be heard in such cases in the court of last resort is preserved by the constitution. The procedure is statutory. In actions in equity the cause is removed from the district court to this court by filing here a duly certified transcript of the record. Nothing further is required. Whether the action be legal or equitable, the defeated litigant may, after final judgment, transfer the controversy from the district court to this court by filing here a certified copy of the record and procuring the issuance and service, or written waiver, of the statutory process. When this court has obtained jurisdiction either by appeal or error proceeding, it has authority to make a final disposition of the cause by rendering such judgment as the court below should have rendered. The proceedings in this court in the exercise of jurisdiction acquired under the provisions of title 16, Gode of Civil Procedure, are, as we said in Webster v. City of Hastings, 56 Neb. 245, quite analogous to those in ordinary actions. But certainly the analogy does not *136prove that this statutory proceeding for the correction of errors is essentially and for all purposes a new suit. The statute (section 584, Code of Civil Procedure) describes it as a proceeding; that is, a further step in the litigation. Even the writ of error, which was an original writ, and indispensable to the jurisdiction of the appellate court, was said in Nations v. Johnson, 24 How. (U. S.) 195, 205, 16 L. ed. 628, to be “rather a continuation of the original litigation than the commencement of a new action.” The effect of the proceeding in error’is to bring the record of the case into this court for re-examination — to change the forum.
If the legislature had seen fit to do so, notice of any kind might, as in cases of appeal, have been dispensed with altogether, without infringing any constitutional right of the defendant in error. But notice has not been dispensed with. The statute prescribes the conditions upon which a defeated suitor may be heard in this court. If these conditions have been fulfilled in this case, jurisdiction has attached and the order dismissing the proceeding is wrong. The statute provides (section 584, Code of Civil Procedure) that a summons in error shall be issued and served on the defendant in error or his “attorney of record in the original case,” or else (section 585, Code of Civil Procedure) that there shall be a waiver in writing of the issuance and service of the summons by “the defendant in error, or his attorney.” I can come to no other conclusion, after carefully considering the matter, than that the attorney Avho is authorized to accept service is the attorney upon Avhom the statute authorizes service to be made; that is, “the attorney of record in the original case.”. Service upon such attorney is good service whether the defendant in eiTor be living or dead (Link v. Reeves, 63 Neb. 424); and by parity of reasoning a waiver in writing by. such attorney is a good waiver under section 585, Code of Civil Procedure, whether the defendant in error be living or dead. In other words, jurisdiction of the cause is obtained when those things have been done *137which the law requires to be done in order to transfer the litigation from the district court to this court. In Link v. Reeves a summons in error served upon the attorney of a dead man was held to be good service. The court said: “Robertson being the attorney of record of Preston Reeves in the original case, the service of summons upon him conferred jurisdiction, though Mr. Reeves was then dead.”
The written waiver authorized by section 585 was manifestly intended as a substitute for, and the legal equivalent of, the service provided for by section 584. The legislative thought was that whoever may be served ought to have authority to waive service. The writer of the majority opinion is surely mistaken in assuming that the legislature may have authorized waiver of service by an attorney other than the attorney of record in the original case. To permit one not subject to service to waive service would be illogical, and, so far as I know, without precedent in judicial procedure. The suggestion has been made that a proceeding against a dead man is a nullity. But Link v. Reeves is an authority to.the contrary, and there are many others. Hohenthal v. Turnure, 50 Tex. 1; Black v. Hill, 29 Ohio St. 86; Cox v. Whitfield, 18 Ala. 738; Beard v. Hall, 79 N. Car. 506. It would hardly be claimed that the right of a party to remove a case from an inferior court to the district court by appeal would be lost or impaired by the death of his adversary. A party against Whom judgment has been rendered before a justice of the peace or in the county court transfers the cause to the district court by giving a good bond and filing a transcript within the time limited by the statute. The death of the other party after judgment and before the bond is given and the transcript filed does not prevent the jurisdiction of the district court from attaching. In such cases, as in the case we are considering, the law prescribes the conditions upon which a change of forum may be had; and there are no other conditions. The legislature saw no necessity for a revivor, and so it was not made a condition *138either expressly or by implication. When the prescribed conditions have been performed, the transfer of the controversy from the inferior court to the superior court is effected, and the appellate tribunal should then, if the appellee or defendant in error be dead, direct a substitution of parties and proceed to judgment. The giving of the bond in such case is a proceeding; so is the- filing of the transcript; and yet, notwithstanding the death of the party who recovered the judgment, they are valid and effective steps in the progress of the case.
In the majority opinion it is sought to distinguish this case from Link v. Reeves by pointing out that in the latter case the petition in error and transcript had been filed and the summons issued before the death of Reeves. How is this actually or possibly material? The action had been pending in the district court, and, as a matter of course, it remained there until this court acquired jurisdiction. When did this court acquire jurisdiction? When the summons in error was served, and not before. The service of the process was as essential to a transfer of the litigation as was the filing of the petition in error and transcript. Each step in the proceeding was necessary; each was vain and useless without the other. When Reeves died this court was not possessed of the action, and it had no more authority to hear and determine than it had in this case when Seeley died. Ex parte Munford, 57 Mo. 603. In each case the purpose of the unsuccessful party to remove the litigation to this court was unexecuted when the defendant in error died. In each case the action was still pending in the district court and was not pending here. The fact that the pleading and transcript had been filed with the clerk of this court in one case and not in the other is, it seems to me, without legal significance. In each case the effort to transfer the controversy from the district court to this court during the life of the defendant in error was abortive, and it was no less abortive in one case than in the other.
It is conceded that an appeal will remove a case to this *139court without proceeding in the district court to bring in the legal representatives of a party who died after final judgment. The reason is said to be that the law in relation to appeals contemplates a trial de novo, and does not require assignment of errors. This can hardly be regarded, if true, as a convincing or even a persuasive reason. The inference does not follow from the premises. But in truth there is, accurately speaking, no trial de novo in appeal cases, and there is, necessarily, in such cases an assignment of errors. In both appeal and error cases the judgment of the district court stands until there has been a re-examination of the record. There is then an affirmance, a reversal or a modification. Both methods of review are prescribed by the statute, and the difference between them is formal, rather than substantial. Why the legislature should require a revivor in the district court if one method is pursued and not if the other is followed is beyond comprehension; it is one of those difficult problems Avhich Lord Dundreary would characterize as “a thing no fellow can find out.” Suppose there is a revivor in the district court after judgment, what good purpose can it serve? Why is it necessary or desirable that the representative of the deceased litigant be made a party in the district court if the litigation in that court is ended? There seems to be no reason for it, absolutely none, whether the action be legal or equitable. Reason and utility suggest that the order of revivor be made in the court in which the 1'itigation is to be continued, and not in the court in which the controversy has been brought to a conclusion. The first section of the Code of Civil Procedure requires that “its provisions and all proceedings under it shall be liberally construed Avith a view to promote its object and assist the parties in obtaining justice.” The decision dismissing the proceeding in error is, it seems to me, made in utter disregard of this legislative injunction. The plain words of the statute are disregarded in order to give effect to a judicial theory which obstructs justice in this case and has no tendency to promote it in any casa