On Petition for Rehearing.
Per Guriam:Counsel for appellants have filed a petition for a rehearing, and pray that the same maybe granted "to the end that the judgment to dismiss be so modified as to authorize the docketing of the within case as upon error.” The correctness of the ruling of this court that the appeal was not properly perfected, so as to confer jurisdiction to consider and determine the case upon its merits by the statutory method of appeal is not questioned. Indeed, counsel in their petition now seriously question the' appropriateness of- an appeal in this case at all. They say: "To our mind, if the attorney-general had contended that the defendants had no right to a review in this case upon its merits by appeal, for the reason that the Constitution of the State of Nevada limited the appellate jurisdiction of the supreme court in criminal cases amounting to a felony to only questions of law, his contention would have been sound, and the appeal should have been dismissed, as there is no statutory provision for a review of final judgments in cases of felony on their merits in the supreme‘court of the state, and the only remedy which a defendant could avail himself of would be the common-law writ of error!’
This is a position entirely new, and is not a little startling, in view of the practice that has prevailed in this state from its organization to the present time. Our Constitution pro*308vides that the supreme court shall have "appellate jurisdiction on questions of law alone in criminal cases” that the "right of trial by jury shall be secured to all and remain inviolate forever” and that "judges shall not charge juries in respect to matters of fact”; and this court has uniformly held that it will not determine regarding conflicting evidence and questions of fact on which a verdict is based. The statutory appeal from a judgment and from an order denying a motion for a new trial has, so far as we are aware, been considered ample to clothe this, court with power to review every question affecting a defendant’s rights, providing substantial compliance be had with the plain provisions of the statute. What more, if anything, could be accomplished by the common-law writ of error is not manifestly apparent.
There is neither a constitutional nor statutory provision specifically authorizing writs of error in this state, although the rules of this court contemplate that the writ may issue in appropriate cases. See Rules 18-22, inclusive (pages 14, 15 of this volume). The appellate courts of many states, where common-law practice largely prevails, review proceedings in the lower courts mainly by writs of error. In other jurisdictions, by constitutional or statutory provision, or both, it has been held, as in Colorado, that "the appeal is merely cumulative to the common-law process of writ of error. The statute which gives the former does not take away the latter. The party may in the first instance, as will be confessed, adopt either, at his pleasure.” (Freas v. Engelbrecht, 3 Colo. 381; 7 Ency. Pl. & Pr. 852, and note 2.) In other jurisdictions it has been held "that a writ of error does not lie where a party is entitled to an appeal, and that, too, although the statute giving the right of appeal does not expressly provide that such remedy shall be exclusive. In such case the right to a writ of error is considered abolished by implication. The reasons on which the rule is* founded are that the remedy by appeal is more simple, more prompt, less expensive, and less circuitous.” (Ency. Pl. & Pr., supra.) To this rule certain exceptions are noted in the text, like those referred to in certain criminal cases cited from the Supreme Court of Massachusetts.
*309In the case of Cooke et al., Petitioners, 15 Pick. (Mass.) 234, 239, cited in counsel’s petition, the court, after considering whether a writ of certiorari would lie in the case, said: "We think, therefore, a writ of error is the proper remedy in all these cases, unless the right has been taken away in the cases tried in the municipal court, from the judgments' of which the petitioners were entitled to appeal, which the attorney-general contends takes away the remedy by writ of error by reasonable implication, and in civil actions it has been so decided; the remedy by appeal .being considered the easier and more beneficial remedy. But in criminal cases, so far from the remedy by appeal being an easier and more beneficial.remedy for the convict, it not unfrequently happens that he is wholly unable to avail himself of that remedy, by reason of his inability to procure sureties to recognize with him for the appeal and abiding the order of the court thereon. To decide in such cases that the convict’s right to sue out a writ of error to reverse an erroneous judgment has been taken away by a reasonable implication would be a hard decision, and cannot be warranted by any of the reasons given for the decisions of the court in civil suits ”
Whether such an exception could be made under our practice is manifestly open to serious question, for in this state, while appellants in civil cases are required to furnish an undertaking on appeal, no undertaking whatever is required in criminal cases. The question, however, whether the defendants are entitled to have the judgments against them reviewed upon a writ of error — a question that is new to this court — cannot be determined upon this petition. Counsel for appellants correctly state the situation when they say: "There is a marked distinction between appeals and writs of error as remedies after final judgment. An appeal is a statutory right, and is the continuation of the original suit; while writs of error are new suits, and are the common-law writs of right.”
"It is a well-established principle of appellate procedure that a writ of error is an independent action in the nature and with the general characteristics of a new and original suit? (7 Ency. Pl & Pr. p. 823, and note 4.)
*310In Lessee of Taylor v. Boyd, 3 Ohio, 354, 17 Am. Dec. 603, the court said: "In the obvious nature and character of the proceeding, a writ of error is a new and original suit. Original process issues in it, and must be served to bring the adverse party into court. The relative character of the parties is changed, new pleadings are made up and a final judgment upon it, though it may operate upon the original cause, is nevertheless a termination of the new suit, or process in error. * * * We adhere to the doctrine that the writ of error is a new suit, and can only affect parties or strangers from the service of the citation;’ The foregoing from the Ohio court was quoted with approval in Widber v. Superior Court, 94 Cal. 430, 29 Pac. 870.
The right of the defendants to a writ or writs of error to review the judgments against them can only be determined upon appropriate proceedings for such writ, when all parties interested can be heard upon questions which such proceedings would involve. If, as contended by counsel for defendants, an appeal is merely cumulative to the remedy by writ of error, and such remedy exists independent of the remedy by appeal, there is nothing in the opinion on motion to dismiss the appeal which could be construed as concluding the defendants from availing themselves of the remedy by writ of error, if such remedy exists, as no such question was presented or determined.
The petition for a rehearing is denied.