52 P. 367 | Ariz. | 1898
This is an application for a writ of error coram nobis, brought to obtain a review of a judgment entered by this court on the 26th of February, 1897, affirming upon a short transcript a judgment of the district court of Coconino County in the case of B. N. Freeman, J. H. Hoskins,
The office of the ancient remedy of a writ of error coram nobis was to have a judgment corrected by an examination, by the court rendering it, into some question of fact affecting the validity and regularity of the proceedings, such as the death of one of the parties before verdict or judgment, or the infancy, insanity, or coverture of the defendant, and which was not made an issue and determined in the action. No error of a court in applying the law to the facts could be rectified by means of the writ, nor could any error of fact which was adjudicated in the action be reviewed. Kemp v. Cook, 18 Md. 130, 79 Am. Dec. 681. The writ has become obsolete, having been superseded by the modern practice of applying to ' the court by motion for the relief sought. Pickett v. Legerwood, 7 Pet. 144; Association v. Fassett, 102 Ill. 315. We are not disposed to encourage the digging into the moldering dust-heaps of the past for worn-out and discarded remedies, or to sanction in the future the practice of applying to this court in this manner for relief, which can more speedily and as efficaciously be had by the simple remedy of motion. We have, however, in the present instance, chosen to consider the application for the writ as though it was a motion to vacate the judgment, upon those facts which could have been reviewable under the writ of coram nobis.
The principal question presented is, in brief, whether the death of a defendant in an action brought under our claim and delivery statutes for the possession of personal property, occurring after judgment in the court below, and pending an ' appeal and prior to the affirmation of such judgment by this court, affects the regularity and validity of the latter judgment. Paragraph 946 of the Revised Statutes provides that “946 (sec. 298) If any party to the record, in any cause now pending in or hereafter taken to the supreme court, by appeal or writ of error, shall have died heretofore, or shall hereafter die, after the appeal or writ of error bond has been filed and approved, or after the writ of error has been served and
Another question is also sought to be presented for our review in this application, which we will briefly consider. The judgment of the court below was for the plaintiffs in the action, for the return of the property sued for, or that the defendant and his sureties upon his bond for the return of the property pay the assessed value of the property, at the election of the plaintiffs. The latter, under the statute, elected to taire the value of the property, and the judgment thereupon became one for money merely. The bond upon the appeal was both an appeal and a stay bond, and upon the affirmation of the judgment in this court judgment was rendered upon this bond for the amount of the judgment of the court below and the costs of this suit, against the defendants and the sureties upon the bond. Such a judgment is provided for by paragraph 950 of the Revised Statutes and conforms to the practice of this court. The contention that the remittitur was issued while a motion for rehearing was pending and undetermined is not borne out by the minutes of the court. The application for the writ will be dismissed, with costs.
Street, G. J., Davis, J., and Doan, J., concur.