Definition
The defendant in error is the party against whom a writ of error is brought — that is, the party who won in the court below and who must now defend that judgment on appeal. In the traditional writ of error procedure, the losing party in the trial court (the plaintiff in error) initiated appellate review by suing out a writ of error; the prevailing party below then became the defendant in error, tasked with sustaining the judgment already rendered in their favor.
The term is a technical designation tied specifically to the writ of error as the mechanism of appellate review. It does not describe the party who was a defendant at trial. A plaintiff who prevailed in the trial court could become the defendant in error if the losing defendant sought review by writ of error.
Common Confusion
Defendant in error is frequently misread as referring to the party who was the defendant at the trial level. The confusion is understandable: the word "defendant" carries its ordinary trial-court meaning for most readers. But the designation flips based on who won below, not on who was originally sued. A plaintiff who succeeded at trial becomes the defendant in error when the losing defendant appeals by writ of error. Similarly, the plaintiff in error — the party initiating appellate review — was often the defendant at trial. Researchers encountering these terms in historical records must resist mapping them onto modern appellant/appellee terminology without first confirming the procedural posture of the case below.
Why It Matters in Research
This term is an artifact of a superseded appellate procedure. The writ of error as the primary mechanism of appellate review was largely displaced in federal practice by the modern appeal under the Judiciary Act of 1891 and subsequent procedural reforms. State courts followed at varying paces. As a result, defendant in error appears with high frequency in American case law and legal literature through the early twentieth century and then drops away sharply. Researchers working with pre-1940 materials — federal or state — will encounter the term constantly in case captions, briefs, and judicial opinions.
The critical navigational trap: case captions in older reporters list parties as "plaintiff in error" and "defendant in error," and those designations tell you who lost and who won below, not who originally brought suit. Misreading the caption can invert your understanding of the procedural history of a case entirely. When synthesizing doctrine across historical and modern sources, be alert to the transition point in each jurisdiction where "plaintiff in error / defendant in error" gives way to "appellant / appellee."
The term also surfaces in treatises and form books from the nineteenth century as part of standardized writ of error practice, where the procedural steps, the parties' designations, and their respective obligations are described with precision. Understanding that the defendant in error was the party defending a judgment — not defending against a claim — is essential to reading those sources accurately.
Historical Dictionary Support
Both Bouvier and Rapalje & Lawrence define the term consistently and briefly: the defendant in error is the party against whom a writ of error is sued out. There is no divergence between the two sources on substance. Bouvier emphasizes that the term is the "distinctive" designation — signaling that it carries technical meaning specific to writ of error procedure and should not be read as a generic reference to defendants. Rapalje & Lawrence offer the same core definition and append related headings (defendants' costs, what the term includes in various contexts) with reporter citations, useful for researchers tracing how courts treated parties' rights and obligations in writ of error proceedings.
What neither source addresses, because it was not yet a concern at the time of compilation, is the eventual displacement of the writ of error by the modern appeal and the consequent disappearance of the term from living legal usage. Historical dictionaries treat the term as current and operative; researchers must supply the context that it is now historical.
Encyclopedia Cross-Reference
The Law Mind Criminal Law Encyclopedia, criminal_230: Standards of Review on Appeal (De Novo, Abuse of Discretion, Plain Error) — for the appellate review framework within which writ of error procedure operated and into which it eventually dissolved.
The Law Mind Criminal Law Encyclopedia, criminal_231: Harmless Error and Structural Error — for the doctrine of error on appeal, the conceptual territory most closely associated with writ of error proceedings.