Second Ward Bank v. Upman
14 Wis. 596
Wis.
1861
Check Treatment

By the Court,

Dixoít, O. J.

Tbe authorities cited show that tbe writ of error coram nobis still exists in many of tbe states, but whether it does in this we need not now determine. Conceding that it does, we are of opinion that tbe defendants are bound by the decision upon tbe previous motion to set aside tbe judgment upon tbe same grounds now urged in support of tbe writ. It cannot be denied that for a long time past tbe same ends have been attained by motion, and that this practice has in great measure superseded tbe use of tbe writ Tbe practice by motion is so familiar and undisputed in ’ this state, that a reference to authorities is hardly necessary. Blackie vs. Griswold, 10 Wis., 293, and Reid vs. Case [ante, p. 429], are cases where it has received tbe sanction of this court “ In practice,” say tbe supreme court of tbe United States, in Pickett's Heirs vs. Legerwood, 7 Peters, 147, “tbe same end is now generally obtained by motion, sustained, if tbe case require it, by affidavit; and it is observable that so far has the latter mode superseded tbe former in British practice, that Blackstone does not even notice this writ among bis remedies. It seems it is still in frequent use -in some of tbe states; and upon points of fact to which the remedy extends, it might perhaps be beneficially resorted to as a means of submitting a litigated fact to tbe decision of a jury; an end which under tbe mode of proceeding by motion might otherwise require a feighed issue, or impose upon a judge tbe alternative of deciding a controverted point upon affidavit, or opening a judgment, perhaps to tbe material -prejudice of the plaintiff, in order to let in a plea But in general, and in tbe practice of most of tbe states, this remedy is nearly exploded, or at least superseded by that of amending on motion.” There can be no doubt, therefore, that tbe county court could either have set tbe judgment aside upon tbe motion absolutely, or have opened it upon condition, as that it should stand as se*600curity to abide tbe final result, and let in tbe defendants to answer and establish by tbe verdict of a jury tbe facts upon which they relied to defeat it. Tbe refusal to do so is a bar to this proceeding. For it cannot be successfully maintained that a party who has two or more remedies open to him for the same cause of action, or complaint, and who has resorted to one of them, prosecuted it to a final bearing and there been defeated, may then turn around and pursue another, as if no proceedings had already been taken. There would be no reason or justice in such a doctrine, and it is opposed by the authorities. See the case of Simpson vs. Hart, cited in Pierce vs. Kneeland, 9 Wis., 33, which will be found fully in point and directly the other way. We have at present two modes by which the judgments of the circuit and county courts in actions at law may be reviewed in this court, — a writ of error and an appeal. If a party to such judgment should prosecute one of these to final hearing and decision here, we think the learned counsel for the appellants would not insist that he could afterwards bring up the same judgment by the other. The two cases seem to us to be precisely analogous. And they appear to bear no practical resemblance to the case put, of the indictment, where the party may first move to quash, and then demur, and finally move in arrest of judgment, and on each succeeding occasion urge the same objections. By the course of practice, the motion to quash, the demurrer and the motion in arrest, are regarded in the law as so many distinct steps, which may be successively taken in the action, and each of which is designed to accomplish a different purpose, and not as concurrent remedies for the accomplishment of the same purpose.

The position that the rights of the defendant Henry Tip-man are saved by the order overruling the motion, is not sustained by the record. The motion was denied without prejudice to his right to move to set aside the judgment as to himself.

Order affirmed.