OPINION OF THE COURT.

This cause is here on writ of error. A motion was filed by defendant in error to dismiss the writ on the ground that the same had been issued by the clerk of this Court without the direction of this Court or a Justice thereof. Thereupon plaintiff in error filed a motion to enter nunc pro tunc as of the date of the issuance of the writ of error an order approving, allowing and confirming its issuance.

1 In Farmers Development Co. v. Raj^ado Land & Irrigation Co., 134 Pac. 216, we had this matter before us. A discussion and decision of it was entirely unnecessary to a decision of that case, the plaintiff in error having failed for want of a cost bond, as pointed out in the opinion.

For the purpose of settling the practice, however, we did discuss this matter in that case, and held that section 3, of article VI, of the Constitution, repealed, pro tanto, section 3 of chapter 57, Laws of 1907, regulating-the issuance of writs of error. This holding was correct, and we do not desire, now, to depart from it in any particular. The holding.was that such writs must be issued by “direction of the Court or any Justice thereof.”

The further question is presented in this case, not mentioned or argued in that case, viz': What amounts to a “direction” by the Court or any Justice thereof?”

2

It is to be remembered that for years, under the Territorial regime, it had been the uniform practice provided by law, for the clerk to issue these writs upon the filing •of a praecipe for the same by the interested parties. Upon the advent of Statehood and the formation of this Court, we appointed the clerk of the former Territorial Court to be the clerk of this Court. It then and there become our ■duty to instruct the clerk that writs of error hereafter could be issued only by “direction” of the Court, or a Justice thereof. This we failed, formally, to do. In accordance with his former custom and practice, he proceeded to issue these writs, when applied for and we have proceeded to hear and determine causes in large numbers brought before us in this manner. While no former orders had been made allowing the writs, each member of the Court has had personal knowledge of this course of conduct. Each member has, from time to time, been actually present and known personally of the issuance of some of these writs, and has acquiesced in and consented to the act, as well as the general course of practice. Under such circumstances, we hold that such writs have been issued by “direction” of the Court, or some Justice thereof, Avithin the meaning of the Constitution. To hold otherwise is to put form above substance, to convert the failure of duty on the part of the Court itself into a trap for the unwary litigant, and to unsettle large and important interests heretofore determined by the Court.

Of course, a Court speaks only in one Avay, viz: through its orders and judgments. For the sake of formality and regularity, therefore, an order will be entered, allowing the writ of error in this case, nunc pro iunc, as to the date of the issuance of the same, and the motion to dismiss the writ of error will be denied, and it is so ordered'.

Three other cases, viz: Rio Puerco Irrigation Co. v. H. A. Jastro, Nos. 1546 and 1547, and Stephen Canavan v. Kate Canavan, No. 1562, are in the same condition, and the same order will be entered in each of them.