specially concurring:
Should one yield to the doctrine of stare decisis when the law invoked thereunder is repugnant to one’s sense of fundamental law? In reluctantly deferring to the rule of precedents I would at once voice the narrow and restricted application a limitation of actions rule should have; I would make clear the straightened channel in which the rule may function. To this end I put myself on record as sanctioning the rule as operative in a most confined area.
Ernst v. Lamb, 73 Colo. 132, 213 Pac. 994, is authority for the proposition that the rule under discussion is a limitation of action affecting writs of error, and that iis procedural within the rule-making power of the court. *260That a law limiting the bringing of an action is not substantive, but “pertains to the remedy only,” is stated again in Industrial Commission v. Weaver, 81 Colo. 191, 254 Pac. 444.
Since a statute of limitations creates a right which is to be protected as any other right whenever asserted in an action, Bates v. Gregory, 89 Cal. 387, 26 Pac. 891, it is difficult to accede to the notion that such a law is procedural. The creation of rights is substantive. “The substantive law is that part which creates, defines, and regulates rights as opposed to adjective or remedial law, which prescribes the method of enforcing rights or obtaining redress for their invasion. Black’s Law Dictionary, under title ‘Substantive Law,’ p. 1132.” Mix v. Board of Commissioners, 18 Ida. 695, 112 Pac. 215, 32 L.R.A. N.S. 534.
Because it is in the nature of a statute of limitations, according to our decisions, I would have it subjected to all the infirmities of such a statute. The rule “is a personal privilege granted to the [defendant in error], which he may waive.” Foot v. Burr, 41 Colo. 192, 92 Pac. 236, 13 L.R.A. N.S. 1210. “The doctrine of equitable estoppel may in a proper case be invoked to prevent a party from relying upon [the rule of limitation].” C. W. Kettering Merc. Co. v. Fox, 77 Colo. 90, 234 Pac. 464.
And since we cannot create rights, there is no absolute right in the state, once it invokes the rule, that we order the case dismissed. Invocation of the rule requires this court to exercise a wise discretion in determining whether, under the circumstances, the rule should be applied.
There is another aspect of the matter that should be removed from the area of doubt. The rule does not in its application divest this court of jurisdiction upon the lapse of the time fixed for the filing of the writ of error. This court cannot by rule limit its jurisdiction. Neither can it by rule devise a loss of jurisdiction, for such be*261yond peradventure is the enactment of substantive, law by rule. The question of jurisdiction is substantive.