fully taken from him. It scarcely lies in the mouth of a wrongdoer, when sued in a subsequent action, to say that the plaintiff did not take all of the relief to which he was entitled in the former case. At common law an action in replevin tested only the right of possession of the replevied property at the time of the commencement of the action, and provided 75 no method whereby the defendant might have judgment for the value of his property in case the adjudged return thereof could not be had, but left the successful defendant to another action in another form to procure such relief. "In our action of replevin the judgment is in the alternative. This was not so in a common-law action of replevin": Wilson v. Fuller, 9 Kan. 176, 191. But under our statute, as is the case under most statutes of replevin, an additional or cumulative remedy to that found in the common law has been provided, and now the defendant may have judgment not only for his costs and for a return of his wrongfully detained property, but, if he choose, also in the alternative, for the value of such property. This is a new remedy given him, and it is well established that in such cases the one on whom such new remedy is conferred may elect which course he will pursue. He need not avail himself of the new unless he chooses so to do, and, if he does not, he is not estopped from pursuing the old: 7 Ency. of Pl. & Pr. 373. Section 184 of the code provides that in case the replevied property has been delivered to the plaintiff and he failed to prosecute his action to final judgment, the defendant may proceed to inquire into the right of property and right of possession. In the case of Manning v. Manning, 26 Kan. 98, the plaintiff, having so obtained the property, dismissed the action, but the defendant did not exercise the right given under this and the following section of having the right of property and its value determined; yet this court there ruled: "While the defendant in a replevin action has a right, notwithstanding dismissal by the plaintiff, to an inquiry and adjudication in that action of his claims to and interest in the property replevied, and in case he avails himself of this right can collect no 76 more from the sureties on plaintiff's bond than is awarded by such adjudication, yet this is not his only remedy, for after a voluntary dismissal by the plaintiff he may commence an independent action on the bond, and recover therein all his damages sustained by the taking of the property, including therein, if the title be in him, the value of such property." The court stated in the body of the opinion that while the defendant, after the dismissal by the plaintiff, had a right to insist upon a trial and judgment in his favor, notwithstanding the dismissal, and in such trial his rights would be determined, yet, if he did not seek such trial and judgment in that action he would not be precluded from seeking his remedy against the attaching plaintiff. In Bank v. Morse, 60 Kan. 526, 57 Pac. 115, it was held that, as against a bondsman in a replevin action, where the suit had been tried out and judgment rendered in favor of the defendant for his costs only, an action on the bond could not be maintained, because the condition therein was that the plaintiff should duly prosecute the action, pay all costs and damages assessed against him, and return the property if a return should be adjudged. This, however, in no sense is a holding that an action could not be maintained against the wrongdoer himself. The view that he may maintain such action is sustained by section 1159 of Cobbey on Replevin, second edition; Schley v. Hale, 1 Tex. App. Civ. Cas., sec. 391; Moore v. Gammel, 13 Tex. 120; and we think the trial court was correct in so holding. The judgment will be affirmed. All the justices concurring. When Replerin or claim and delivery is sustainable is the subject of a monographic note to Sinnott v. Feiock, 80 Am. St. Rep. 741767. That a judgment in replevin may be in the alternative, see Marks v. Willis, 56 Or. 1, 78 Am. St. Rep. 752, 58 Pac. 526; Hall v. Law etc. Trust Co., 22 Wash. 305, 79 Âm. St. Rep. 935, 60 Pac. 643. 1 DAN COLLINS v. STATE. [66 Kan. 201, 71 Pac. 251.] A WRIT OF ERROR CORAM NOBIS is Never Granted to relieve from consequences arising after the judgment. The unvarying test of the right to the writ is mistake or lack of knowledge of facts inhering in the judgment itself. (p. 361.) A WRIT OF ERROR CORAM NOBIS Cannot be Employed to obtain relief from the misfortune of being unable to prosecute an appeal for the correction of errors of law. Hence, it cannot be granted on the ground that the defendant was prevented from appealing his case because of his inability to make up a record embodying his exceptions within the time allowed by law. (p. 362.) Hayden & Hayden and Welch & Welch, for the plaintiff in error. Galen Nichols, county attorney, for the state. 202 DOSTER, C. J. This was a proceeding in error coram nobis, begun in the district court, to vacate a judgment of conviction of John H. Collins of the crime of murder, and to secure for him a retrial. The court below denied the writ, and from its order of denial this proceeding in error has been instituted. The sole ground upon which a claim of right to the writ is based is that Collins was prevented from appealing his case to this court because of his inability to make up a record embodying his exceptions to the rulings of the court trying him, and showing the errors committed against him, within the time allowed by law for perfecting and filing such record. That, however grievous the hardship, does not constitute a reason for the issuance of the writ of error coram nobis. That writ lies only to correct the record of the trial itself in matters of fact existing at the time of the pronouncement of the judgment, in respect of which the court was unadvised, but had it been advised the judgment would not have been pronounced. The unvarying test of the writ coram nobis is mistake or lack of knowledge of facts inhering in the judgment itself. It has never been granted to relieve from consequences arising subsequently to the judgment. In State v. Calhoun, 50 Kan. 523, 34 Am. St. Rep. 141, 32 Pac. 38, it was allowed in order to relieve from the consequences of a plea of guilty made through duress of fears induced by threats of mob violence. In Asbell v. State, 62 Kan. 209, 61 Pac. 690, it was denied for the reason that the facts on which the application was predicated were known during the progress of the trial, or were available on motion for new trial, or, if not known in 203 time for use on motion for new trial, would be merely cumulative upon facts which were known at that time. In that case it was held: "The office of the writ of error coram nobis is to bring to the attention of the court, for correction, an error of fact-one not appearing on the face of the record, unknown to the court or the party affected, and which, if known in season, would have prevented the rendition of the judgment challenged." In Dobbs v. State, 63 Kan. 321, 65 Pac. 658, the writ was denied as a means of relief from prejudicial matters occurring before and on the trial, such as inability to learn and present facts entitling the party to a change of venue, ignorance or unfaithful conduct of his attorney, etc. The court, among other things, said: "The application for a writ of error coram nobis must show that, if the facts upon which the error is predicated had been presented to the trial court, the judgment complained of could not have been entered." All the decisions are to the effect that the writ lies only to correct errors of fact, in ignorance or disregard of which the judgment was pronounced, to relieve from which no other remedy exists. None of the courts has used it to relieve from the misfortune of being unable to prosecute an appeal for the correction of errors of law. We cannot allow it to be used for such purpose. We cannot invent forms of procedure to relieve unfortunate suitors. The judgment of the court below will be affirmed. All the justices concurring. WRITS OF ERROR CORAM NOBIS AND WRITS OF ERROR I. Difference Between Writs of Error, Writs of Error Coram II. Writs of Error Coram Vobis, Authority of the Courts of this III. Whether Writs of Right. IV. At Whose Instance and Against Whom the Writ may Issue. Questions of Practice. V. c. Pleadings in Opposition to the Writ. d. The Trial of the Issues Which may be Presented and Contested Thereon. e. The Judgment. VI. In What Cases a Writ may and may not Properly Issue. a. Because of Errors of Law. b. Error of Fact. 1. 2. General Rule. Errors of Fact Relating to the Death or Disability of a Party. 3. Errors of Fact Through Which a Party has Failed 4. Errors of Fact in Criminal Proceedings. VII. Negligence or Laches as a Bar to the Writ. VIII. Obsoletism of the Writ. I. Difference Between Writs of Error, Writs of Error Coram Nobis, and Writs of Error Coram Vobis. "Writs of error coram nobis and coram vobis have frequently been treated as identical. The object sought by such writ is the same; but the method of seeking it is different. The former writ issued out of the court where the error was alleged to have occurred, and was returnable before the same court. It recited that 'because in the record and proceedings, and also in the rendition of the judgment of a plea in our court before us, it is said a manifest error hath happened'; and it then directed the judges to inspect the *record and proceedings which before us now remain, and to do what of right ought to be done to correct that error.' The latter writ was made returnable before some superior tribunal, and required the record and proceedings to be certified to such tribunal for its revisory action": Freeman on Judgments, sec. 94; Camp v. Bennett, 16 Wend. 48. "There appears to be much confusion and great want of discrimination in the books as to the distinctive features and appropriate offices of a writ of error, a writ of error coram nobis, and a writ of error coram vobis. When the object of the writ is to remove a judgment from an inferior into a superior court for review, and the correction of errors of law or fact, it is called a writ of error onlynothing more. But when the object of the writ is to correct an error of fact in the same court that rendered judgment, it is called a writ of error coram nobis, if it be in the king's bench, and a writ of error coram vobis if it be in the common pleas. The writs coram. nobis and coram vobis differ from a writ of error in two particulars: 1. They contain no certiorari clause, for there is no record to be certified; 2. They have no return day, as they are in the nature of a commission only to the court to correct error. They lie for errors. of fact, and for errors in the process, or through the default of the clerk. They do not lie when the error is in the judgment of the court itself, and not in the process. The writ is called a writ of error coram nobis in the king's bench, because the record and proceedings are stated in the writ to remain before us (coram nobis); that is, in the king's bench. The king, by a fiction of law, is supposed to be present in person in that court. In the common |