Gardner v. Board of Commissioners , 1 Bur. 48 ( 1842 )

Irvin, J.

This cause came into this court on a bill of exceptions taken to the decision of the district court of Grant county at the September term for 1841.

Upon an examination-of the transcript of the record, it appears that, at the March term of said court for 1840, the said Gardner and WhitaTcer appeared in court, and entered- a judgment by confession, in an action of assumpsit, in favor of said board of commissioners, for $232 and the costs of suit; and at the said September term of said court, they filed a motion, for reasons therein stated, to amend the record of such judgment by inserting therein the true consideration of the judgment, which motion was overruled, and exceptions thereto taken.

The only point that presents itself for consideration in this court is, did the court err in overruling the motion % It is a principle, too well established now to be questioned, that generally, after the adjournment of the court for the term, its record can never afterward be touched by that court,; and if error has found its way into the proceedings, it must be corrected by another and a higher court. To this general principle there are some few exceptions, and they are mostly of statutory provisions. One of the exceptions is, the proceeding by writ of error cora/m nobis. This is a proceeding which lies in the same court where the cause is tried; whereas the writ to correct errors in the judgment of that court, cannot be brought before the same court, but its object is to remove the cause to a higher court. For it would be absurd to appeal to the same court from an error of its own judgment. But as the writ of error cor am nobis does not question the judgment of the court, but only alleges some defect in the execution of the process, or some clerical misprison or mistake, or some error in the proceedings arising from a fact not appearing on the face of them (as when a judgment is rendered against a party after his death), there is no absurdity in permitting it to be brought before the same court that tried the cause. Thus, if the court enters up a judgment as confirmed against the appearance bail, whereas in truth and in fact he had filed a recognizance of special baft, and had set the office judgment aside, which, however, the clerk omitted to enter in the record, this writ of error coram nobis (some times called a writ of error in fact) lies to correct the proceeding, and upon the fact appearing, the court proceeds to reverse the judgment against the appearance had up to the point where the error was committed, and placing the cause in the state in which it would have been, had the fact been properly entered on the record, sends it back for farther proceedings. 2 Wash. 130; 2 Rand. 174. The provisions of our statute of amendments do not extend to such a case as is made by the motion under consideration. Believing that the district court had no authority to interfere with the judgment of a previous term, in the manner asked for by the motion, weaffirm with costs, the decision overruling the motion.

Note.—But seo Hill v. Hoover, 5 Wig. 386: As to Matters upon which the mind of a court did act, or-is presumed from the record to have acted, in rendering a judgment, it is precluded from reviewing such judgment at a subsequent term. This rule, however, does not prevent the court, at a subsequent term, from setting aside its own judgment for errors, on which, at .common law, the same court would reverse it on a writ of error coram nobis; nor from setting aside a void judgment, or a judgment on cognovit; nor from correcting clerical errors or mistakes in matter of form, nor from re-instating a cause dismissed by mistake. The Etna Life Ins. Co v. McCormack, 20 Wis. 265.