Parkinson & Sevier v. Waldron, Thomas & Co. ( 1846 )

Mr. Justice Thaci-iek.

delivered the opinion of the court.

The record in this case shows that a writ of error coram nobis, was sued out to the circuit court of Claiborne county, upon an allegation of defects in a forthcoming bond, upon which an execution had issued. It also appears that, at the return term of this writ of error, a motion was made, and sustained, to quash the forthcoming bond, and the execution thereon. The forthcoming bond was forfeited at the November term, 1838, and the motion to quash the bond was made and sustained at the November term, 1842. By the repeated decisions of this court, the motion was made toó late, and could have been sustained only at the return term of the forthcoming bond. But if the motion in this case be considered merely as a mode of bringing up the merits of the case under the writ of error coram nobis, and not as an independent motion to quash the forthcoming bond, and upon investigation it should appear that the bond was absolutely void, the court below might, perhaps, in this mode of proceeding, have so declared it, and ordered it to be set aside as a nullity; but in case the bond were merely erroneous, and voidable only, as we are disposed at most to say of the forthcoming bond in this record, then the proceeding is unwarranted, and it was too late for the court to quash it. Williams v. Crutcher, 5 How. 71.

Judgment reversed.