James v. Williams

44 Miss. 47 | Miss. | 1870

Tabbell, J.:

In the circuit court of Chickasaw county, at the- October term, 1869, in an action of replevin, John C. f-Iolloway, administrator de bonis non, of Nancy J. Martin, deceased, recovered a judgment against Samuel C. Williams, administrator of Samuel Williams, deceased, for the sum of two thousand dollars debt, and ninety dollars damages, besides costs, etc.

The defendant in the court below, brought writ of error to the high court of errors and appeals, wherein, at the April term thereof, 1866, the writ of error was dismissed, and the judgment of the circuit court affirmed.

The papers are marked: “ Submitted at the October term of the high court of errors and appeals, 1869, and again at special term, June 13,1870.”

There is no appearance on the part of Samuel 0. Williams, in this court, and the cause has been once dismissed for want of prosecution, The summons contained, substantially, the facts set forth in the petition, the judgment, the death of Holloway, etc., and these facts being sworn to, and the defendant neglecting to appear in answer to the citation, the allegations may be assumed to be true, for the purpose sought to be attained. There is no reference to a writ of error ooram nobis in the code, but it is a common law right. 1 How., 122, Archbold’s Pr. & PI.

In November, 1867, F. M. J ames applied, by sworn petition, for a writ of error coram nobis, stating, that, at the time of the rendition of the judgment in the high court of errors and appeals, on the 15th day of May, 1866, John 0. Holloway, administrator and plaintiff, was dead, and that since his death, the petitioner had been appointed administrator de bonis non of the estate of said Nancy J. Martin, deceased, in the place of said Holloway, deceased. The petition prayed that upon the return of the writ, the said judgment be set aside, ■and the cause revived i-n the name of petitioner, F. M. James, reference being had to the petition for a more complete statement. The writ was allowed, and citation ordered to be issued, by the clerk of the high court of errors and appeals, by Mr’ Justice Ellett, then one of the judges of that court, November 18th, 3 867. A summons was accordingly issued, served, and returned in due form. Summons issued November 22, 1867; served on Samuel 0. Williams, in person, December 14,1857 ; returned and filed with the clerk, December 23,1867.

The judgment, as in this case, may be recalled, and the cause revived, either by this writ, or by motion, the latter mode having been several times adopted and acted upon in this court. All the facts considered, the practice adopted by counsel, in this instance, is little else than, if not equivalent^ to a motion.

Let the judgment be recalled and held for naught, being absolutely void as against a dead manat the time of the rem dition thereof, and the cause revived and restored to the docket, in the name of F. M. James, administrator, etc., of Nancy J. Martin, deceased, and the former judgment affirméd.