Corry v. Buddendorff

1. Justice of the Peace. Appeal. Notice. Writ of error eoram nobis. ■ Judgment. Upon an appeal from the judgment of a justice of the peace to the circuit court, it is unnecessary to give notice of the appeal to the adverse party. 2. Same. Where a defendant after judgment in his favor in a justice of the peace court was informed by the justice of the peace that no appeal had been asked for and relying on this, in ignorance of such appeal, failed to make any defense in the circuit court, this did not entitle him to a writ of error coram nobis to review a judgment for plaintiff in the circuit court. 3. Writ of Error Coram Nobis. A writ of error coram nobis is intended to correct a mistake of fact not an error of law and such mistake of fact must be such as would have prevented the rendition of the judgment on the former trial, and the failure to present such fact must be without fault of the party asking such writ. ...

Appeal from the circuit court of Harrison county. Hon. W. H. Hardy, Judge. Petition by J. W. Corry for writ of error coram nobis to "review a judgment' in favor of B. J. Buddendorff. Prom a judgment dismissing the petition, petitioner appeals. The facts are fully stated in the opinion of the court. While it is true, this court has announced the rule to be that the law does not contemplate that any notice shall he given to the opposite party, by the party appealing from the judgment of a justice of the peace,- at the. same time, we desire to call this court’s attention to the fact that the point sought to he raised in this case is not that appellant is complaining that notice was not given him of the appeal from the judgment of the justice of the peace, by the appellee, Buddendorff, but that appellant complains of erroneous information which was conveyed to him by said justice of the peace, through his said agent Andrews, after appellant had made inquiry as to whether or not, an appeal had been taken, and that on account of said erroneous information, appellant was precluded from employing counsel, and from making his defense to said suit in the said circuit court of Harrison county, which he would have otherwise done. It will be noted, that the petition of appellant for said writ of coram nobis, recites that appellant did use diligence and make inquiry as to whether or not any appeal had been taken, but was misled in having been told that no appeal had been perfected from the judgment of said justice of the peace. The error assigned in this court, is the action of the circuit court in sustaining the motion of the appellee, Buddendorff, to dismiss the petition of appellant for said writ of coram nobis, and the further action of said circuit court in dissolving the supersedeas which had already been issued in said cause before said motion was heard. We think under the facts set up in the petition of appellant for the writ of coram nobis, that the court should have at least tried said petition on it's merits in order that an investigation of the facts alleged in said petition, might have been made, and in order that it might have been ascertained as to whether or not, said justice of the peace had wrongfully told appellant’s agent that no appeal had been taken, when in fact one had been taken. We understand the principles of law in matters of this kind to be: That where the party seeking relief by the writ, assigns as his ground for said relief an excusable mistake of fact, which facts do not appear on the record, and which shall be such that if known in season would have prevented the rendition of the judgment in question, then the writ of error coram nobis will lie, and the party applying’ for it is entitled to the relief thereunder, if the allegations of his petition setting up said facts are sustained. * Ency. P. & P., vol. 5, pages 27 and 28. We presume it will not he controverted that this remedy is still in force in this state, although no reference is made to it in the statute. James v. Williams, éé Miss. 47. There are hut few decisions of this state dealing with the writ of error ■coram nobis, and those that have been rendered are not in point with the case at bar; they having been decided on other questions than the one involved in this case. Sixth vol., American and English Ency. of Law (1st Ed.), at page 810. Definition of Writ of Error Goram Nobis. “In the trial of a cause, if matters exist which are not brought into issue, such as affect the validity and regularity of the proceeding itself, at common law, the writ of error coram nobis, was issued in order to gain justice. It is called coram nobis because the record and process upon which it is founded are stated in the writ to remain before us; that is, in the court in which the trial is; this writ always lies in the same court where the record is. Matters which affect the validity and regularity of the proceedings are such as the death of one of the parties at the beginning of the suit; the appearance of an infant in a personal action, by an attorney, and not by guardian; the marriage of a woman at the beginning of a suit when her husband is not joined with her.” This writ coram nobis does not lie to correct any error in the judgment of the court, nor to contradict or put in issue any fact already adjudicated. In Howard v. State, 24 S. W. 8, 58 Ark. 229, cited in 8th vol., Words and Phrases, at page 7536: “The writ of error coram nobis is now in little nse. In practice the same end is generally accomplished by motion. The office of the writ is to correct an error of fact in respect to a matter respecting the validity and regularity of the proceeding in the same court in which the judgment was rendered, and where the record is and the error assigned is not for any fault of the court; those errors which precede the judgment as error in the proceedings which are through the fault of the clerk; where an infant appears by attorney and not by guardian; where the defendant was insane at the time of the trial, or died before judgment.” In Freeman on Chancery, 94, that author says: “The writ of error coram nobis is not intended to authorize any court to review and revise its opinion; but only to enable it to recall some adjudication made while- such facts existed which, if before the court, would have prevented the rendition of the judgment, and which, without any fault or negligence of the party, was not presented to the court.” In Miller et al. v. Ewing et al., 8 Smed. & M. Miss. 421, The facts are about as follows: The suit was against the maker and endorsers of a promissory note, Miller and Cox being the second and third endorsers. Process was issued to Madison county for the maker and first endorser, and to Washington county for Miller and the last endorser, but was not returned. George E. Fall was the maker, and William H. Washington was the first endorser. To the declaration, a plea was filed by an attorney of the court, commencing in these words: “And the said defendants, Washington, Cox and Miller* come and defend,” etc., and the plaintiff obtained a verdict and judgment. An execution was levied on the property of Miller. Miller petitioned for a writ of error coram nobis and supersedeas, stating in his petition that he had never been served with process; that the attorney who filed the plea was not employed by him in that or any other case, and that he knew nothing of the suit or judgment until the execution was levied on his property. At the hearing of the motion the defendant in the court below proposed to make up an issue to try whether' “Ott” was their attorney and proposed to prove that the attorney was not employed by them; that he had no authority to appear in the suit; that such appearance was unknown to plaintiff in error and had never been approved; that the plea was filed at the request of plaintiff’s attorney in order that his client might get a judgment at that term against the maker of the note; that this was done under promise of Bwing and Cromy that the appearance and judgment should not operate prejudicially to the other defendants. The court refused to allow the issue and proof to be made. Chief Justice Sharkey in writing his opinion in this case says: ‘4 The apparent hardship in this case has induced us to examine into the question involved, with great care,” etc. We admit then that the jurisdiction of the court is a subject of inquiry, even in the judgments of our own courts; but how is the inquiry to be made? That is the question. It is a question of evidence, and comes down to this: Will parol evidence be received in a court of law to contradict the record by proving a fact to be untrue, which is affirmatively asserted to be true on the record? If so, then any fact may be disproved; one as well as another. This would be making judgments prima facie evidence ■ — -good until disproved. If a party may open and reverse a judgment, by denying that he appeared by attorney, he may also deny an appearance made in proper person. It would open the door to an inquiry as to the employment of an attorney, or as to the appearance of the party, to be decided by the jury, and judgments, instead of being the end, would often be the beginning of litigation. A judgment, before it could be said to import verity on its face, would require the aid of a second judgment establishing the jurisdiction of the court in the first. Cyc. 23, page 885. .Note. Requisites of application. “The application for the writ must show that, if the facts on which the error is predicated had been presented to the trial court the judgment complained of could not have been entered.” Dodds v. State, 63 Kan. 321. Cyc. 23, page 885, paragraph 29, grounds for application. “But the writ may issue where there is a vital jurisdictional defect not'apparent on the face of the record, or on account of the death of a party before judgment, or the infancy, insanity, or coverture of defendant, such disability not having been brought to the notice of the court before judgment, or where a default has been irregularly entered against a party not legally in default, or has been taken against him by fraud, accident, or mistake, without fault on his part.” We submit that if the record was as appellant states it in his brief, to be, it could avail him little under the ruling of this court in the case of Rowe v.-Gannon, 84 Miss., page 101, the court speaking through Calhoun, J., said: “The bond having been given by plaintiff for appeal to the circuit court from the justice of the peace, and the certified copy of the record, with the original papers and process and original appeal bond, being sent up to the circuit court, the case stood for trial de novo, without new process to the appellee in that court. None was necessary, because no statute requires it. The case did not stand as a new action, requiring due process of law. It was, by the appeal, still a pending action, requiring no process additional to that before the justice of the peace. The judgment by default in the circuit court was proper.” An appeal from a justice of the peace must be regu-. larly noticed for trial .in the time and manner prescribed by statute or rule of court. Cyc. 24, page 724. In the case of James v. Williams, 44 Miss., page 47, referred to by appellant in his brief, a judgment was obtained against a man who was dead at the time of the rendition thereof. The court, in that case, properly held that a writ of error coram nobis should be granted. The authorities, so far as we are able to find, universally hold the death of a party before judgment is grounds for the issuance of a writ of error coram nobis. Cyc. 23, page 884,, par. 2.