6 Mich. 46 | Mich. | 1858
The defendant’s motion is to quash the assignment off errors, and to dismiss the writ of error.
The error assigned is one of fact, viz., the death off John P. Wetherell before the suit was brought.
The motion is placed on several different grounds:
1st. A want of jurisdiction, in this court, of errors off fact;
2d. That errors of fact are cognizable only in the court.
3d. That errors of fact can not be assigned on the writ of error in this case, which is a writ for errors of law, and not for errors of fact.
In support of the first ground, it is urged this court is a court of appellate jurisdiction, and therefore can not, on a writ of error, hear and determine any question that was not before the court below, and could not have been heard and determined by it. And we have been referred to adjudications in the state of New York on the jurisdiction of the late Court of Errors of that state, and to the English Exchequer Chamber, and House of Lords, in which it is said errors of fact can not be assigned on a writ of error. There would be much force in the argument if this court was an appellate court only. It has original, as well as appellate, jurisdiction given to it by the Constitution. Section three of article six is in these words: “The Supreme Court shall have a general superintending control over all inferior courts, and shall have power to issue writs of error, habeas corpus, mandamus, quo warranto, procedendo, and other original and remedial writs, and to hear and determine the same. In all other cases it shall have appellate jurisdiction only.”
It was further said on the argument, that the Legislature had made no provision for the trial in this court of issues of fact, except in cases of informations in the nature of a quo warranto, and that the court has no means of trying an issue of fact in error. The jurisdiction of writs of error is plenary as given by the Constitution; it extends to all errors — to errors of fact as well as of - law — and stands in need of no legislative action to make it operative. The Legislature may regulate the proceedings and practice of the coxu’t, but this is in no way essential to the exercise of the power. In the absence of legislation, the Constitution, in giving the power unconditionally, impliedly
This was before the statute for the trial of issues of fact in cases of information, referred to, was passed. In 6 Wend. 32'?, the Court of Errors of the state of New York, refused to permit an assignment of errors in fact, on the ground of want of jurisdiction; and it is put on that ground in 10 Wend. 51, where the Chancellor says the plaintiff should have brought a writ coram vobis in the Supreme Court. A want of jurisdiction, we presume, *8 the true reason why errors of fact can not be assigned in the Exchequer Chamber or House of Lords, and not the one sometimes to be found in the books, viz. that they can not try an issue of fact. A release of errors may be pleaded in either of these courts, and there must be some way of trying it when the truth of the plea is put in issue.
2d. As to the jurisdiction of the circuit court. The Constitution and statutes defining and limiting its jurisdiction do not give it power in any case to issue a writ of error, and without this power, a writ of error coram vobis, issued by that court, would be void. — 20 Johns. 22; 14 Ibid. 422. And if it had the power, it would not oust this court of its jurisdiction.
3d. The next objection is that errors of fact can not be assigned on the writ of error in this case, because, it is said, the writ is one for errors of law, and not for errors of fact. This objection goes on the ground that errors of fact can not be assigned on the common writ
There appears to be much confusion and great want of discrimination in the books, as to the distinctive features and appropriate offices of a writ of error, a writ of error coram nobis, and a writ of error coram vobis. When the object of the writ is to remove a judgment from an inferior into a superior court, for review, and the correction of errors of law-or fact, it is called a writ of error only —nothing more. But when the object of the writ is to correct an error’ of fact in the same court that rendered the judgment, it is called a writ of error coram nobis If it be in the King’s Bench, and a writ of error coram vobis if it be in the Common Pleas.
A writ of error is an original writ, and hi England Issues out of the Court of Chancery, and runs in the name of the king. With us, it issues from this court, and under our present judicial organization can issue from no other. It is “in the nature, as well of a certiorari to remove a record from an inferior into a superior court, as of a commission to the judges of the superior court to examine the re
Other objections were urged on the argument; as the uncertainty of the assignment of errors; that it does not conclude with a verification; that it prays the judgment may be reversed; and-the like. Whether any or all of them he well or ill taken, it is not necessary for us now to decide, as they relate to the pleading, and not to the jurisdiction of the court, and are no ground for quashing the assignment of errors, or dismissing the writ.
Defendant’s motion must be denied. Plaintiff having made a cross motion for leave to amend, ten days are given Mm to withdraw his assignment, and file and serve a new assignment of errors on defendant’s attorney. All subsequent pleadings to be filed under the rules of court. Neither party to have costs.