Bridendolph v. Zellers' Executors

There is no doubt but that in Maryland a writ of error cm-am nobis lies to correct an error in fact in the same court where the record is; if there be error in the process, or through default of the clerk, it will be reversed in the same court by writ of error sued thereon before the same judge. In a writ of error coram nobis to the county court to correct a judgment of fiat, the error assigned was that the scire facias recited a judgment which had no existence; the court sustained a demurrer to this assignment, and gave judgment for the defendant in error. Held: That whether this be an error of law or of fact, this ruling must be sustained, for if it be error of law the writ coram nobis does not apply, and if of fact there is nothing to correct, as the scire facias sets out. a perfect, judgment justifying the judgment fiat. The entry of fiat upon the return of one nihil is a clear case of imgularity and expressly provided for by the act of 1787, ch. 9, sec. 6; the defendant has a clear right to move the court to strike out the fiat, and when this motion is granted, appear and plead nul tiel record, which brings before the court directly the existence of the judgment on which the sci. fa. is founded. An appeal does not lie from an order overruling a motion to quash a writ of error coram nobis, it not being a final judgment from which an appeal properly lies.

Appeal from the circuit court for Washington county. On the 22nd of April 1851, Bridendolph, the plaintiff in error below, filed, in Washington county court, a petition to the judges thereof, stating that two writs of scire facias had issued out of said court against him, and judgment of fiat rendered thereon without his appearance, or opportunity of defence. That said sci. fas. recited a judgment, recovered by the defendants in error below, against him, at March term 1837 of said court, when in fact there was no such judgment, and that there was manifest error in the process, and that the same was issued through the mistake or default of the clerk, and prayed for a writ of error coram nobis, to correct the record of said judgment. The petition was verified by the affidavit of the attorney of the plaintiff, and thereupon the court, on 2nd of April 1851, ordered the writ to issue returnable on Saturday next, which was accordingly issued on the 5th of April 1851, by the clerk, directed to the judges of the same court, and recites, 1st, the judgment recovered in 1837, which is set out in full in the opinion of this court; 2nd, the writs of sci. fa., the first of which was issued on the 22nd of March 1849, and returnable to March term, but no return thereto was made, the second on the 20th of April 1849, and returnable to November term, which was returned nihil; 3rd, the judgmentjiai, See.; and directs the correction of the error in the usual form. .The plaintiff, at the same term, assigned for error, in substance, that the sci. fa. recited a judgment which had no existence. At the next term, the defendants moved to quash the writ, because: — 1. The court or judges had no authority to issue such writ. 2. It recites two judgments. 3. In the recitation of the judgments blanks are left. 4. It purports to be a writ of error coram, nolis, to correct all errors in the record, when by law no other writ will lie in the same court than the writ of error coram vobis for the correction of errors in judgments rendered by mistake. 5. It is returnable in the same court wherein the errors are supposed to have been committed, when by law it ought to have been made returnable to the Court of Appeals. The circuit court overruled the motion to quash, from which ruling the defendants in error prayed an appeal, which was granted. The plaintiff, upon leave, and to meet the view of the court that there could be only one assignment of error, amended his assignment, and assigned as error in fact, and in the process and proceedings, and by the default of the clerk and officers of the court, that writs of sci. fa. were issued, &c., (setting them out,) whereas there was in fact no such judgment, or any other judgment rendered against him at the suit of the plaintiffs; and judgment oi fiat was rendered in said case against him, when, in fact, there was no judgment, wherefore he prays that the judgment oi fiat may be vacated, reversed and set aside. To this assignment the defendants filed a special demurrer, for the following causes: — 1. That it is bad for duplicity, there being assigned more than one supposed fact as cause of error in the said judgment-. 2. That it is double, including more than one supposed fact, in one and the same assignment; and 3. That it is in other respects wholly insufficient for want of form, &c. The demurrer was sustained by the court, and judgment given for the defendants in error, from which the plaintiff in error appealed.