Latham v. Hodges

Full title: THOMAS LATHAM AND D. B. PERRY v. FRANCIS AND JOHN HODGES

Court: Supreme Court of North Carolina

Date published: Jun 1, 1852

35 N.C. 267 (N.C. 1852)

Opinion

(June Term, 1852.)

1. An appeal was taken to the Supreme Court, and a final judgment there rendered. A writ of error, coram nobis, upon the ground that one of the parties died before the trial in the Supreme Court, cannot be allowed in that court.

2. Error for matter of fact lies only in the court in which the record and judgment are, and not to reverse the judgment of another court, and especially of a higher one.

(268) APPEAL from Caldwell, J., at Fall Term, 1851, of PITT.

Rodman for plaintiffs.

Biggs and Donnell for defendants.

Application to the Superior Court of Pitt for a writ of error coram nobis, for error in fact on the following case: A paper-writing was propounded in the county court as the will of Martin Woolard, by Hodges as executor, and was contested by Ransom Woolard, and there was sentence for the will. Ransom Woolard took the cause to the Superior Court by certiorari, and gave a bond for that purpose, in which Latham and Perry, the present applicants, were his sureties. In March, 1848, the issue was again found for the will, and sentence pronounced accordingly. Then judgment was rendered against Latham and Perry on their bond for the costs, and they appealed to the Supreme Court, where the judgment against them was affirmed, and upon execution the costs were levied. They then made the present application, upon the ground that Ransom Woolard died before the term of the Superior Court at which the trial took place, and in September, 1851, his Honor allowed the application, and the other side appealed.

RUFFIN, C. J.

The parties cannot get at their object in the present mode of proceeding. If they could have entitled themselves to the writ of error for the alleged error of fact, in the Superior Court, it was only while the judgment against them was in the power of that court.

(269) Instead of pursuing that course, however, they appealed to this Court upon the matter of law, so that the judgment finally rendered against them was the judgment of this Court, and not that of the Superior Court. Hence this writ cannot be sustained, as error for matter of fact lies only in the court in which the record and judgment are, and not to reverse the judgment of another court, and especially of a higher one.

PER CURIAM. Judgment reversed, and motion disallowed.