James v. WilliamsJames v. Williams
- Reporters:
- Before:
- Tabbell
In thе circuit court of Chickasaw county, at the- October term, 1869, in an action of replevin, John C. f-Iolloway, administrаtor de bonis non, of Nancy J. Martin, deceased, recoverеd a judgment against Samuel C. Williams, administrator of Samuel Williams, deceased, for the sum of two thousand dollars debt, and ninеty dollars damages, besides costs, etc.
The defendаnt in the court below, brought writ of error to the high court of еrrors and appeals, wherein, at the April term therеof, 1866, the writ of error was dismissed, and the judgment of the circuit court affirmed.
*50The papers are marked: “ Submitted at thе October term of the high court of errors and apрeals, 1869, and again at special term, June 13,1870.”
There is nо 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 deаth of Holloway, etc., and these facts being sworn to, аnd 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. Thеre 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.
*49In Novembеr, 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 Mаy, 1866, John 0. Holloway, administrator and plaintiff, was dead, and that since his death, the petitioner had been apрointed administrator de bonis non of the estate of said Nancy J. Martin, deceased, in the place of said Hollowаy, deceased. The petition prayed that upоn the return of the writ, the said judgment be set aside, ■and the cаuse revived i-n the name of petitioner, F. M. James, refеrence being had to the petition for a more сomplete statement. The writ was allowed, and citаtion ordered to be issued, by the clerk of the high court оf errors and appeals, *50by 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; servеd 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 adоpted and acted upon in this court. All the facts cоnsidered, 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 absоlutely void as against a dead manat the time of the rеm 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.