Summary
In Tyler v. Morris, 20 N.C. 625, defendant made a motion in the superior court for a writ of error coram nobis to reverse a judgment alleging that the plaintiff was dead at the time judgment was rendered. From the refusal of the trial judge to issue the writ, the defendant appealed to the Supreme Court which held that, although on the facts shown the writ could have been issued, it was within the discretion of the trial judge and not subject to review by the Supreme Court.
Summary of this case from Dantzic v. StateOpinion
December Term, 1838.
Writ of Error Coram Nobis.
1. A writ of error coram nobis is not a writ of wright. Before it is allowed there must be an affidavit of some error in fact, by which, in case the fact to be assigned for error is true, the plaintiff's right of action will be destroyed; and it is a matter of discretion with the court before which the application is made whether upon the affidavits to grant the writ or not, which cannot be revised by this Court upon an appeal.
2. The court, upon an application for a writ of error coram nobis does not decide the fact assigned for error definitively.
3. If the writ be granted, the other party, when brought in, may plead and take issue upon the fact, which must be tried by a jury, and not by the court.
4. A writ of error coram nobis is not in itself a supersedeas; it is so or not according to circumstances, and therefore execution cannot be sued out after the allowance of a writ of error without the leave of the court, and whether the supersedeas shall issue after the allowance of such writ must depend on circumstances to be adjudged of by the court.
THE defendant Morris made a motion in the Superior Court of law for the county of NEW HANOVER, on the last circuit, before his Honor, Judge Toomer, for a writ of error coram nobis, to reverse a judgment obtained in the said court by the plaintiff Tyler against him for error in fact, viz.: that Tyler was dead at the time the judgment was rendered; and also for a supersedeas to the execution issued thereon. The attorney who obtained the judgment for Tyler was in court and resisted the motion, denying that Tyler was dead. His Honor refused the motion, giving as a reason that it did not appear to the court (626) from the affidavits that Tyler was dead. From this decision the defendant appealed.
No counsel appeared for the defendant in this Court.
Badger for plaintiff.
A writ of error coram nobis is not a writ of right. Before it is allowed there must be an affidavit of some error in fact; by which, in case the fact to be assigned for error is true, the plaintiff's right of action will be destroyed. Birch v. Triste, 8 East, 415. The court, in this case, was of the opinion that the affidavits did not lay a sufficient foundation to authorize it to grant the writ. This opinion of the court was one of discretion upon the facts disclosed in the affidavits. As the affidavits did disclose probable grounds that Tyler was dead at the time the judgment was rendered, we think that the court might have allowed the writ of error, although it refused the supersedeas. For the question whether Tyler was dead or not at the time of the rendition of the judgment was not one for the court to decide definitively. If the writ had been granted upon the error assigned, the administrator of Tyler, when properly brought in, might have plead that Tyler was alive at the rendition of the judgment, and so have taken issue upon the fact assigned for error. This issue must have been tried by a jury and not by the court. 1 Archb. Prac. K. B., 276 to 281. A writ of error coram nobis is not a supersedeas in itself; it is or is not according to circumstances; and therefore execution cannot be sued out after the allowance of the writ of error without the leave of the court. I Archb. Prac., 277. And whether a supersedeas shall issue after the allowance of a writ of error, for error in fact, must depend on circumstances, to be adjudged of by the court. In this case the refusal of the Superior Court to grant the writ was founded in discretion arising upon the facts set forth in the affidavits. It has been repeatedly decided that the Supreme Court has not power to revise such a decision. The appeal, (627) therefore, must on this ground be dismissed.
PER CURIAM. Appeal dismissed.
Cited: Lynn v. Lowe, 88 N.C. 487.