Roughton v. . Brown , 53 N.C. 393 ( 1861 )

The petition was filed in the name of the husband and wife in the county court of Yadkin, upon due notice given, praying for a writ of error to reverse a judgment rendered against the petitioner Amelia and others at a former term of the said court, upon the ground that she was at the time of the rendition of such judgment a feme covert. The county court granted the prayer of the petition and ordered the writ of error to issue from which the defendant, in error, appealed to the Superior Court. It appeared in the Superior Court that said Amelia was a feme covert at the time the judgment was rendered; that she had joined her husband and others in the bond on which the judgment was taken, that execution had issued on such judgment, and that the (394) land of the said Amelia had been sold under it.

His Honor in the Superior Court, being of opinion against the petitioners, refused the writ asked for; from which the petitioners appealed to the Supreme Court. The reasons which induced the judge in the court below to reject the application for the writ of error coram nobis are not stated, but in this Court the objection to it is based upon two grounds:

First, that it ought to have been brought in the Superior Court and not in the county court; and,

Secondly, that all the defendants in the judgment ought to have been parties in the petition for the writ. In our opinion, neither ground of objection is tenable.

1. The distinction between an ordinary writ of error and a writ of errorcoram nobis is that the former is brought for a supposed error in law apparent upon the record, and takes the case to a higher tribunal, where the question is to be decided and the judgment, sentence, or decree is to be affirmed or reversed; while the latter is brought for an alleged error of fact, not appearing upon the record, and lies to the same court, in order that it may correct the error, which it is presumed would not have been committed had the fact in the first instance been brought to its notice. A writ of error of this kind will lie to any court of record, and as our county courts are courts of record we cannot conceive of a reason why one of them may not correct an error of fact in its judgment, upon a writ of error brought before itself. See 2 Tidd Practice, 1136, andLassiter v. Harper, 32 N.C. 392.

2. As to the second ground of objection, we are aware that an ordinary writ of error must be brought in the names of all the parties to the judgment, and if one or more of them be unwilling to join in (395) it there must be a summons and severance of such objecting party or parties; Walter v. Stokoe, 1 Ld. Raymond, 71; Carth., 8; Sharpe v.Jones, 7 N.C. 306. Without stopping to inquire whether this rule in relation to writs of error for matter of law may not be altered by an equitable construction of section 27, chapter 4, Rev. Code, which gives to one or more defendants the right to appeal, alone, from a judgment against him or them and others, we do not find any direct authority that the rule ever has been applied to writs of error coram nobis, and we do not perceive any reason why it should be so applied. The usual instances of error in fact requiring the intervention of this writ are those of judgments against infants and femes covert where the fact of such infancy or coverture does not appear on the record. In such cases it is manifest that the judgment, if otherwise proper, will be erroneous only as to them, and not as to the other defendants. Why, then, should the other defendants be parties to the writ, when they cannot have any interest in reversing the judgment? We cannot preceive [perceive] any necessity for it, and in our practice shall not require it. In the case of coverture the husband must be joined with the wife because she, as a general rule, cannot sue or prosecute any legal proceeding without him.

Our conclusion is that the order appealed from must be reversed in order that a procedendo may be issued to the county court.

PER CURIAM. Reversed.

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