Bridendolph v. Zellers' Executors

3 Md. 325 | Md. | 1852

Le Grand, C. J.,

delivered the opinion of this court.

This is a writ of error coram nobis. It appears from the record that in the year 1837, in Washington county court, there was entered a judgment by confession against the appellant “for $!-, damages and costs, the damages to be released on the payment of $610, with interest from-till paid,” & c. At a subsequent term a writ of scire facias was issued, in which the judgment of 1837 was recited as one for $610; to this writ there was no return, and a second writ issued, to which there was a return of nihil, whereupon the court entered judgment fiat for $610, with interest from the 12th day of April 1837, The defendant in the scire facias never appeared to the writ. In this state of case, on petition, the court for Washington county directed the issue of a writ of error corant, nobis, returnable before it. The plaintiff in error assigned as error, that the scire facias recited a judgment which had no existence.

Since the case of Hawkins vs. Bowie, 9 G. & J., 437, there ought to be no doubt in Maryland, that a writ of error coram nobis lies to .correct an error in fact, in the same court where the record is. If there be error in the process, or through default of the clerk, it shall be reversed in the same court, by writ of error sued thereon before the same judge.

We do not deem it important to inquire whether the error complained .of be one of law or of fact, for, in either event, the ruling of the court below must be sustained in this proceeding. If it be an error of law, then, confessedly, the writ coram nobis has no application, and if it be an error of fact, there is nothing to correct, for the scire facias sets out a perfect judgment; such an one as justified the judgmentjfci.

The judgment fiat appears to have been entered on the , return of one nihil, a clear case of irregularity, and expressly provided for by the sixth section of the act of November session 1787, chapter 9. The appellant had a clear right to move the court to strike out the judgment fiat, and, when his motion was granted, to appear to the suit and interpose the plea of nul tiel record, which would have brought before the court, directly, the existence of the judgment on which the scire facias was founded. This right has not as yet been lost to him.

We are of opinion that the appeal taken by the executors of Zellers was improperly taken, there being no final judgment from which an appeal would lie.

For the reasons we have given, we affirm the judgment of the court on the demurrer of appellees.

Judgment affirmed,