Hawkins ex rel. Mundell v. Bowie , 9 G. & J. 428 ( 1838 )

Spence, Judge,

delivered the opinion of the court.

A writ of error coram nobis, lies to correct an error in fact, in the same court where the record is; as if there be error in the process, or through default of the clerk, it shall be reversed in the same court, by writ of error sued thereon before the same justices. Sellon's Pra. 399.

But of an error in law, which is the default of the justices, the same court cannot reverse the judgment by writ of error; nor without a writ of error, but this error ought to be redressed in another court, before other justices, by writ of error. Fitzh. N. B. 49, 50.

It is our design, in reviewing this cause, to inquire, first, whether the errors assigned fall within that class, which may, according to the rules and principles of law, be revised and corrected by writ of error coram nobis; namely, whether they be errors of fact, for such errors only, can warrant the same court to reverse a judgment, because, error in fact, is not the error of the judges. Therefore, the reversing such judgment^ is not reversing their own judgment.

The first error assigned was, that before the impetration of the writ original in that cause, Thomas Hmvkins, the plains tiff in said suit named, was, and for a long time before, had been dead. The fact here assigned for error, was pleaded by the defendant and rejected by the county court, before the judgment; upon the ground, that being a plea in abatement, it was pleaded too late under the rules of the court; this appears by the statement of facts agreed to by the counsel in the cause.

We are of opinion that the death of Hawkins, the plaintiff, before the impetration of the writ, was matter proper to be pleaded in abatement. Death of plaintiff before suit, pleaded in abatement. 1 Chit. P. 86. All matters of abatement in and before the writ should be pleaded.

But whether the county court properly rejected this plea or not, can have no influence upon the conclusion, for if they correctly rejected this plea, their act could never form the ground of reversal; and if the court erroneously rejected the plea, it was an error of the court, and does not belong to that class, which may be corrected by writ of error coram nobis ; so that the first error assigned could in no aspect of the case, be a ground for reversal of the judgment in proceeding coram nobis.

The second error assigned by the plaintiff in error is, that at the time of making the bill obligatory, the said Thomas Hawkins, the person named in the writ original in this cause as plaintiff, was and always continued to be a slave. This plea also was rejected by the county court; on what ground, the record does not inform us; but whether the court were in error or not, cannot affect this decision. If it were error, it was error in law, and manifestly does not belong to the class of errors which may be corrected by proceeding in error coram nobis, and surely, if the court were right in rejecting this plea, it cannot be made properly a ground for reversing their judgment.

The only remaining question for our adjudication in this case is, whether the act of the county court brought before us on this appeal, is one from which an appeal will lie.

The court revoked, annulled, and set aside as entirely void, the judgment against Catharine Bowie, and restored her to all things which by reason of the judgment she had lost, and rendered judgment in favour of the said Catharine Bowie for her costs. Now, if reversing the original judgment and awarding costs to the plaintiff in error in this proceeding in error coram nobis, was not so far final as to fall within that class of judicial acts from which an appeal will lie to this court, we cannot see the reason, nor can we well conceive of any remedy the parties would have, if the county courts were to undertake to vacate and annul all the judgments on their records. We therefore reverse the judgment.

JUDGMENT REVERSED.