Holford v. Alexander , 12 Ala. 280 ( 1847 )

COLLIER, C. J.

It is argued for the plaintiff in error, that the order of the county court, recalling the judgment against the Planters and Mechanics Bank of Columbus, is not a final disposition of that suit, arid therefore the writ of error should be dismissed. This argument cannot be supported. True, the cause is directed to be reinstated on the docket, that it may be tried de novo, but this is the mere consequence of the revocation of the judgment, nnd if the judgment should not have been annulled, will become inoperative by a reversal of the order, and can interpose no obstacle to its revision.

• Tne judgment upon a writ of error coram vobis is, that the judgment complained of be affirmed or recalled, according as it may be for the defendant or the plaintiff; and if for the latter, then the suit is placed in the same situation as it was, when the judgment was rendered. An order to this effect in the definitive entry in the case made by the writ of error eannot make that interlocutory, which would be otherwise final. As it respects the judgment which is vacated, the action of the court, is conclusive as to its vitality.

It frequently happens, that judgments of justiees of the peace, incases of forcibly entry and detainer, & c., which are pmoved by certiorari to the circuit'court, are reversed, anda venire de novo awarded to the justice ; or that judgments of reversal are rendered on error from the county to the circuit court, in which the causes are remanded. In such cases, appeals or writs of error have frequently been prosecuted to this court, without awaiting the further action of the justice in the one instance, or the county court in the other. These, it seems to us, are parallel in principle, to the case at bar. From this view, we conclude that the cause is regularly brought here, and that the writ of error should not be dismissed.

It is said to be a general rule, “ that nothing can be assigned for error that contradicts the record ; for the records of the courts of justice being things of the greatest credit, cannot be questioned but by matters of equal notoriety with themselves; wherefore, though the matter assigned for error should be proved by witnesses of the best credit, yet the judges would not admit of it.” Under the influence of this rule, it has been held, that on a writ of error to reverse a fine, the plaintiff cannot assign that the conusor died before the teste of the dedimus, because that contradicted the record of the conu-sance taken by the commissioners; but the plaintiff may say that after the conusance taken, and before the certificate thereof returned, the conusor died, because this is consistent with the record. So, where the record of a judgment recites that it was rendered by a court at which a judge mentioned, eo nomine, presided, it cannot be assigned, (though in fact the court was held before his deputy, according to the ' King’s patent,) that, that judge was not there ; for such allegation is contrary to the record. Again : It has been decided, for the reason above stated, that it shall not be assigned for error the defendant filed his warrant to defend, by A. B., his attorney, and that it appears on the judgment he appeared and defended, by C. D., his attorney.” [2 Bac. Ab., title Error, letter K, 2. See also, 4 Dane’s Ab. ch. 127, art. 7, 6.]

In Wetmore v. Plant, 5 Conn. Rep. 541, it was said that nothing shall be assigned for error in fact, of which a party might have taken advantage in the court below, or which he should have pleaded in abatement; that the coverture of the plaintiff should be pleaded in abatement, and if the defendant pleads in bar, he shall not afterwards assign the co-verture for error. So a suit brought by a person in. his official character, after he has ceased to be an officer, can only be abated on plea; and if the objection is not thus taken, it cannot be insisted on after judgment, that nothing can be assigned for error that contradicts the record, as that the plaintiff was not the officer the declaration affirms him to be. So in Goodright v. Wright, 3 Johns. Rep. 437, it was decided, that if a defendant pleads infancy, and a verdict is found against him, he cannot assign for error, that he was an infant, and did not appear by guardian.

In the case at bar, it is alledged in the petition for a writ of error, that the Planters and Mechanics Bank of Columbus had ceased to be a corporation previous to the rendition of the judgment in favor of the plaintiff in error against it, and that certain persons, without any warrant or authority, appeared and pleaded as attorneys for that corporation. The petitioner assigned for error, that the corporation had ceased to exist previous to the rendition of the judgment complained of; and the defendant below, by way of plea to this assignment, averred that on the trial of his suit against the bank, the question, whether it existed as a corporation, was put in issue and determined in the affirmative ; thereupon the judgment was rendered in his favor, which he is ready to verify. This plea we have seen was stricken out on motion.

It has been supposed that the dissolution of the corporation, or the forfeiture of its franchises, has the same effect upon pending suits to which it is a party, as the death of a natural person. Assuming this to be so, and we must intend that the assignment of error affirms not only that the judgment was not in fact rendered, but the record was not in such a condition as authorized the clerk to perform the mere ministerial act of entering it, when the charter was annulled ; and the plea as a denial must be regarded as coextensive with the assignment. This is a clear legal conclusion, if'as it has been often decided that where a plaintiff or defendant dies after an order for judgment, or a verdict returned, the judgment may be perfected. In Farley v. Lea, 4 Dev. & B. 109, the testator died in term-time, before a judgment was signed ; it was held that it might be signed after his death, for it is to be considered a judgment of the first day of the term, at which day the testator was alive. So where the plaintiff, in trespass quare clausum fregit, died after verdict in his favor, and before judgment, the court will enter judgment, as of the term in which the verdict was returned. — [Goddard v. Bolster, 6 Greenl. Rep. 427.] And where the plaintiff died after a verdict in his favor; pending a motion in arrest of judgment, such judgment may be entered as of a term after-verdict, while plaintiff was living. [Griffith v. Ogle, 1 Binn. Rep. 172.] In Perry v. Wilson, 7 Mass. Rep. 393, the defendant died after the continuance of the cause for advisement by the court, and judgment was rendered as of the former term. And this court has often rendered judgment where a party dies after a cause has been submitted for its decision, as of a day of the term preceding his death. Let these citations, and this view of the law suffice to define the scope of the assignment and plea.

Upon a motion to quash a plea, the plaintiff is understood to admit it to be true, and deny its legal sufficiency aa an answer. Taking this to be nnquestionable, and the plea (if the petition does not,) shows that the assignment contradicts, the record, in affirming that when the verdict was returned, the Planters and Mechanics Bank of Columbus had no corporate existence. This is the fact which it alledges was put in issue by the pleadings, and on which a judgment was returned against the bank.

It is not allowable on a writ of error coram yobis. to. go behind this estoppel, and controvert the authority of the attorneys who represented the supposed corporation ; for whatever might be the result upon such an issue, it would not remove the difficulty. The record would remain unaltered, and conclude the plaintiff in error from asserting a fact which denies its verity. This conclusion seems to us so obvious a sequence from the record before us, and the authorities cited, that it requires no farther illustration.

It is laid down in the elementary books, that a writ of error can be brought by him only who was a party or privy to the record, or injured by the judgment, and who consequently will derive advantage from its reversal. Heirs, executors, administrators,reversioners, remaindermen, terre tenants, ora husband who marries after a judgment against his wife, and perhaps others, who are not parties to the proceeding sought to be revised, may join in the prosecution of a writ of error. [5 Dane’s Ab. ch. 137, art. 8 ; 1 Arch. Prac. 231; 2 Bac. Ab. tit, Error, B , Hill’s heirs v. Hill’s ex’rs, 6 Ala. Rep. 166 ; Yeiser v. Stevens, 1 Bibb’s Rep. 292; Grout v. Chamberlin, 4 Mass. Rep. 611; Finney v. Crawford, 2 Watts’ Rep. 294; Campbell v. Smith, 2 A. K. Marsh. Rep. 118; Bledsoe v. Wilson, 2 Dev. Rep. 314; Dougherty v. Compton, 3 Smedes and M. Rep. 100.] Is an assignee by deed, of one of the parties to a judgment, a privy within the meaning of the rule which allows one thus situated, to prosecute a writ of error ? The view taken of the last point considered, relieves us from the necessity of answering this question, and we have merely suggested it, and cited authorities as we had them at hand, for the sake of convenience, should it become necessary to examine the point in some future case. [See further as to the remedy by writ of error, coram vobis, in what cases it lies, the mode of proceeding, and judgment thereon — 1 Arch. Prac, 234, 276 to 281: 5 Dane’s Ab. chap. 137, art. 4, § 15; Ib. art. 7; 2 Bacon’s Ab. tit. Error, K. 2; Cook v. Conway, 3 Dana’s Rep. 454; Kennedy v. Pickering, Minor’s Rep. 137; Colson’s ex’rs v. Wade’s ex’rs, 1 Munf. Rep. 43; Dewitt v. Post, 11 Johns. Rep. 514; Arnold v. Sandford, 14 Johns. Rep. 417; Maynard v. Downer, 13 Wend. 575; Case v. Riberlin, 1 J. J. Marsh. Rep. 29.]

We have said that the defendant in error cannot have the redress he seeks by the remedy he has adopted. If the facts stated in his petition are true, it may be conceded the judgment cannot be enforced to the prejudice of his rights as as-signee ; but how it is to be arrested or vacated, we need not now inquire. We have but to add, that the judgment of the county court is reversed, and if the defendant in error desires it, the cause will be remanded.