Corry v. Buddendorff

54 So. 84 | Miss. | 1910

McLain, C.

Appellant filed a petition in the circuit court of Harrison county for a writ of error coram nobis, which, upon hearing, was dismissed by the court, and judgment rendered against appellee, from which action of the court appellant appeals to this court.

This cause originally began in a justice of the peace court of Harrison county, by Buddendorff filing suit against Corry on open account. On May 3d, 1909, judgment was rendered in favor of Corry, and on the.6th day of May following Buddendorff appealed to the circuit court, which convened on May 17th following. On the third week of said term, Buddendorff obtained judgment against Corry for the amount sued for in the justice court; Corry not appearing in person or by counsel. In July following, after court had adjourned, Corry filed a petition for writ of error coram nobis, which writ wa§ issued on that day. At the November term of circuit court, upon motion of Buddendorff to dismiss the petition of Corry, filed in said cause, for writ of error coram nobis, the petition was dismissed by the court, and judgment rendered in favor of Buddendorff.

The petition alleges, among other things, that, subsequent to the rendition of the judgment in the justice of the peace court, Corry, through an agent, made inquiry of the justice of the peace if an appeal had been taken, and was informed that no appeal had been asked for, and, relying upon this information, he gave the matter no further attention. The record does not clearly show whether or not this inquiry was made before or after the appeal was taken. But this is, in our opinion, immaterial. The petition shows that Corry was in ignorance of the appeal. But this alone will not disturb the judgment rendered in the circuit court.

Upon an appeal from the judgment of a justice of the peace to the circuit court, it is unnecessary to give notice •of the appeal to the adverse party. “The bond having been given by plaintiff for appeal to the circuit court from the justice of the peace, and the certified copy of the record, with the original papers and process and original appeal bond, being sent up to the circuit court, the .case stood for trial de novo, without new process to the appellee'in that court. None was necessary, because no statute requires it. The case did not stand as a new action, requiring ‘due process of law.’ It was, by the appeal, still a pending action, requiring no process additional to that before the justice of the peace. The judgment by default in the circuit court was proper.” Rowe v. Cannon, 84 Miss. 101, 36 South. 146.

The writ of error coram nobis has become obsolete in many of the states, and it is rarely resorted to in our own, being superseded by the more speedy remedy by motion. But we find either is permissible under our practice. Miss, & Tenn. Railway Co. v. W. H. Wynne, 42 Miss. 315. It is a well known principle of law that the writ of error coram nobis is intended to correct a mistake in fact, not error of law. “This is a writ which lies in the same court which rendered a judgment,' and brings its own judgment before it for review and reversal or modification, on account of some error of fact, not of law, affecting the validity and regularity of thé proceedings, and which was not brought into the issue.” 23 Cyc., p. 883.

But the error iu fact, which will render a judgment erroneous, must he sucia as would have prevented the rendition of such judgment, if the fact had appeared on the former trial. “The writ of error coram nobis is not intended to authorize any court to review and revise its opinions, but only to enable it to recall some adjudication, made while some facts existed which, if before the court, would have prevented the rendition of the judgment, and which,-without any fault or negligence of the party, was not presented to the court.” Freeman on Judgments (3d. Ed.), 94. As, for example: “Where there is a vital jurisdictional defect not apparent on the face of the record, or on account of- the death of a party before judgment, or the infancy or insanity of defendant, such disability not having been brought to the notice of the court before judgment.” 23 Cyc., pp. 884, 885.

In the case of Miller v. Ewing, 8 Smedes & M. 431, our court, speaking through Judge Sharkey, said: “We admit then, that the jurisdiction of the court is a subject of inquiry, even in the judgments of our own courts; but how is the inquiry to be made ? That is the question. It is a question of evidence, and comes down to this: Will parol evidence be received in a court of law to contradict the record by proving a fact to be untrue which is affirmatively asserted to be true on the record? If so, then- any fact may be disproved — one as well as another. This would be making judgments but prima facie evidence — good until disproved. If a party may open and reverse a judgment, by denying that he appeared by attorney, he may also deny an appearance made in proper person. It would open the door to an inquiry as to the employment of an attorney, or as to the appearance of the party, to be decided by a jury, and judgments, instead of being the end, would often be the beginning, of litigation. A judgment, before it could be said to import verity on its face, would require the aid of a second judgment, establishing the jurisdiction of the court in the first.”

After a careful review of this case, we are of the opinion that the trial judge was correct in dismissing the petition for writ of error coram nobis. The reasons leading to such a conclusion are founded upon sound principles of law. Every lawsuit should have an end. The law has provided for the citizen plain and easy methods by which he can have, by the exercise of due diligence, his case legally tried, as well as all supposed or real errors committed during trial, both in law and fact, reviewed in the trial court, as well as in the supreme court. When these plain methods or remedies of the law are followed to final judgment, or through negligence or otherwise are waived, the litigation must cease. The above writ under these conditions, or under the facts of this case, cannot be invoked. It cannot be made the basis for inquiry into an alleged error of fact, when such fact might have been presented at the trial, or upon motion for a new trial. To hold otherwise, “judgments, instead of being the end, would often be the beginning, of litigation.”

We are of the opinion that the case should be affirmed.

Per Curiam. The above opinion is adopted as the opinion of the court, and, for the reasons therein indicated by the commissioner, the case is affirmed.