Billups v. Freeman, Civil No. 578

Civil No. 578 | Ariz. | Feb 23, 1898

SLOAN, J.

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, Jr., and F. M. Kimball, copartners under the firm name and style of the “Arizona Central Bank,” plaintiffs, against S. Goodman; defendant, and R. E. Daggs, intervener, and entering a judgment in this court against said defendant and his sureties upon his appeal bond, William M. Billups, R. E. Daggs, A. J. Daggs, and the London Company.

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" court="Md." date_filed="1861-12-16" href="https://app.midpage.ai/document/kemp-v-cook-7891477?utm_source=webapp" opinion_id="7891477">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 The writ has become obsolete, having been superseded by the modern practice of applying to ' the court by motion for the relief sought.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" court="SCOTUS" date_filed="1833-03-18" href="https://app.midpage.ai/document/martin-picketts-heirs-v-legerwood-85820?utm_source=webapp" opinion_id="85820">7 Pet. 144; Association v. Fassett, 102 Ill. 315" court="Ill." date_filed="1882-03-28" href="https://app.midpage.ai/document/life-assn-of-america-v-fassett-6961567?utm_source=webapp" opinion_id="6961567">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 before such cause has been decided by the supreme court, such cause shall not abate by such death, but the court shall proceed to adjudicate such cause, and render judgment therein as if all the parties thereto' were still living, and such judgment shall have the same force and effect as if rendered in the lifetime of all the parties thereto; provided, however, that this act shall not apply to any suit or action in which the cause of action does not survive in favor of or against the legal representatives of a deceased person.” Under the provisions of this section it becomes important, therefore, to determine whether an action in claim and delivery survives in favor of or against the legal representative of a deceased person. This question is answered in the affirmative by paragraph 1185 of the Revised Statutes, which reads as follows: “1185 (sec. 221). Actions for the recovery of any property, real or personal, or for the possession thereof, and all actions founded upon contracts, may be maintained by and against executors and administrators, in all cases in which the same might have been maintained by or against their respective' testators or intestates.”

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.