Heirs of Smith v. Rix

The opinion of the court was delivered by Redfield, J.

It is claimed, that the probate court had no jurisdiction of this petition, after such lapse of time. It is incident to every court of record to revise and correct its own proceedings. In those courts, where the proceedings are according to the course of the common law, the usual and appropriate resorts, are writ of error, audita querela, petitions for new trial, and, sometimes, motion merely. It was held in a case some years since in this court, in Orleans county, that an error in taxing a bill of cost could only be corrected by motion. It was decided on the present circuit, in Franklin county, that the mistake of the county court, in assessing damages, could not be corrected by an audita querela, but only on motion. This diode of correcting the misprisions of the clerks in this court and the county court is familiar with the profession. It is incident to all courts, and especially to those courts, whose proceedings are not according to the course of the common law. In courts of probate, this is' usually done upon petition and notice to the adverse party, as in the present case.

The lapse of time, it is contended here, should prevent the court from re-examining their former decree. There’is no statute' of limitations applicable to the subject. Twenty years have not elapsed, so as to prevent both parties from disputing or enforcing the judgment. Indeed, the petitionee is now attempting to enforce this erroneous decree. We think any time, short of twenty years, will not bar the court from correcting their orders, judgments or decrees, when the parties only are concerned. But, most undoubtedly, they should enter upon such re-examination with great caution, and only upon the most conclusive evidence.

As the appeal in this case brings the whole cause before this court, tobe determined upon its merits,as the supreme court of probate, the motion to dismiss being overruled, the case must be referred to commissioners to find the facts, unless they are conceded, The facts being agreed here, as in the' probate court, this court decreed the correction of those errors, and certified the decree to the probate court, to be there perfected and carried into effect.