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b. The Notice of the Application. Usually notice of the application for the writ is required to be given to the party to be affected thereby: Mears v. Garretson, 2 G. Greene, 316; Maher v. Comstock, 1 How. Pr. 175; Ferris v. Douglass, 20 Wend. 626; Comstock v. Van Schoonhoven, 3 How. Pr. 258; Hicks v. Haywood, 4 Heisk. 598; though in one state it is said that such notice is required only when the writ is intended to operate as a supersedeas: Combs v. Carter, 1 Dana, 178.

c. Pleadings in Opposition to the Writ. If the affidavit or peti. tion does not aisclose an error of fact sufficient to warrant the issuing of the writ, it has been said that no pleading in opposition thereto is necessary or proper, but if a demurrer be interposed, it may be regarded as mere surplusage: Landsdale v. Findley, Hardin, 158. Doubtless, if the affidavit or petition on the part of the applicant does not disclose any error of fact, the writ ought not to issue merely because no response is made thereto. In truth, however, the practice at the common law appears to have been to issue the writ, or to give an order directing such issuing, and no responsive pleading was entertained until a later date, and then the plea, if the statements of the plaintiff in error were regarded as insufficient to justify the issuing of the writ, was in the nature of, and at least had the same effect as a demurrer. “The writ being granted, the plaintiff in error makes a formal assignment of errors, in the nature of a declaration, stating the errors of fact relied upon; and to this assignment the defendant may plead or demur. The common plea in error is, in nulla est erratum, which admits the fact to be as alleged, and insists that in law it is not error, and the matter of law arising upon this plea or upon demarrer is, of course, referred to the judgment of the court. If the defendant would deny the truth of the error in fact assigned, he must traverse the same by plea and take issue thereon; or, if the case requires it, he may plead specially any matter in confession and avoidance, as a release of errors, the statute of limitations, etc., to which the plaintiff in error may reply or demur as may seem proper”': Crawford v. Williams, 1 Swan, 342; Goodwin V. Sanders, 9 Yerg. 91.

Among the defenses available in opposition to the writ is one that the application has not been made in time, either on the ground that some statute of limitations has become operative, or that the time allowed by some rule of court has expired. If the defense of the statute exists, it must be pleaded: Eubank v. Rall, 4 Leigh, 508. In some of the states there is no statute limiting the time within which the writ may be sought: State v. Calhoun, 50 Kan, 523, 34 Am. St. Rep. 141, 32 Pac. 38; Dobbs v. State, 62 Kan. 108, 61 Pac. 408; and

appears that limitations of time for prosecuting writs of error are unapplicable to writs coram nobis: Strode v. Stafford Justices, i Bruck. 162, Fed. Cas. No. 13,537. In Tennessee the writ must not

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issue unless applied for within a year after the rendition of the judgment: Elliott v. McNairy, 1 Baxt. 342.

d. The Trial and the Issues which may be Presented and Contesteđ Thereon.—The issues presented must be tried and determined as are like issues in other cases. Issues of law relating to the sufficiency of the alleged errors of fact to entitle the applicant to relief are, of course, heard and determined by the court like other issues of law and without receiving evidence. Where there is any issue of fact, it must be tried: Adler v. State, 35 Ark. 517, 37 Am. Rep. 48; Landers. v. State, 85 lnd. 318, 44 Am. Rep. 29; Cook v. Conway, 9 Dana, 454; and if the parties demand, by a jury: Fellows v. Griffin, 9 Smedes & M. 362. Where, as is commonly the case, writs of coram nobis do not issue, but motions are entertained as substitutes therefor, the usual practice is to determine issues of fact in the same manner as like issues are determined when arising on other motions, namely, by the court on affidavits and without a jury: Consolidated etc. Co. r. Oeltjen, 189 Ill. 85, 59 N. E. 600. The issues which may properly present themselves for trial do not involve or permit a re-examination or retrial of any issue of law or fact which was expressly or impliedly presented for decision by the court before rendering the judgment from which relief is sought. Doubtless the complaint on which the judgment is based will not be considered for the purpose of determining its legal sufficiency, and the pleadings will not be looked into for the purpose of considering the nature of the cause of action or of defense and of withholding relief if found not to be equitable or meritorious: Higbio v. Comstock, 1 Denio, 652. The record of the case in which the judgment was pronounced cannot be contradicted; the errors assigned must be consistent with it. Hence, the trial cannot involve the hearing of evidence to show that the statements. of such record are false: Holford v. Alexander, 12 Ala. 280, 46 Am. Dec. 253; Williams v. Edwards, 12 Ired. 118. This rule applies when an attempt is made to attack a sheriff's return of the service of a writ of notice: Shoffet v. Menifee, 4 Dana, 150; Bolling v. Anderson, 1 Tenn. Ch. 127. The whole matter at issue involved in the original trial is not opened for a new trial, but only the questions. presented relating to alleged errors of fact: Breckinridge v. Coleman, 7 B. Mon. 331. Conflicting evidence will not be heard relating to the existence of the cause of action or of the ground of prosecution upon which the judgment in a civil action or a criminal proceeding was founded: Dobbs v. State, 63 Kan. 321, 65 Pac. 658; Memphis etc. Inst. v. Hargan, 9 Heisk. 496. Hence, relief from a conviction cannot be procured by a writ coram nobis on the ground that proof can be made that another person committed the crime: Howard v.. State, 58 Ark. 229, 24 S. W. 8; or that the prosecuting witness has since the trial admitted that his testimony was materially false: State v. Superior Court, 15 Wash. 339, 46 Pac, 399, or that the accused has since his trial and conviction discovered new evilence establish

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ing his innocence: Howard v. State, 58 Ark. 229, 24 S. W. 8; Dobbs 5. State, 63 Kan. 321, 65 Pac. 658; Bingham v. Brewer, 4 Sneed, 432.

e. The Judgment.—The judgment which follows the trial “is that the judgment complained of be affirmed or recalled, according as it may be for the defendant or the plaintiff; and if for the latter, then the suit is placed in the same situation as it was before the judgment was entered: Holford v. Alexander, 12 Ala. 280, 46 Am. Dec. 253; Fellows v. Griflin, 9 Smedes & M, 362; Camp v. Bennett, 16 Wend. 48.

VI. In What Case a Writ may and may not Properly Issue. d. Because of Errors of Law.—What we have already said indicates that a proceeding by writ of error coram nobis is not of the same character or for the same purpose as an appeal or writ of error prosecuted to an appellate judicial tribunal for the purpose of reviewing the proceedings of a subordinate court. Where the remedy by appeal or writ of error exists, it should be resorted to, and if such resort is not sought, relief cannot be had by writ of coram nobis. Nor is the rule otherwise though no appeal or writ of error is allowable from the judgment complained of, provided the ground on which the applicant seeks relief is a mere error of law which would have been a proper matter for review had a writ of error or appeal been allowable. llence, the writ coram nobis cannot be successfully prosecuted to obtain relief on the ground that the court, in some ruling or decision, committed an error of law to the prejudice of the applicant and without which such ruling or decision would not have been made, nor is it material whether such supposed error appears on the face of the record or from an inspection of the judgment: Hawkins v. Bowie, 9 Gill & J. 428; Patterson v. Arnold, 4 Cold. 364; Upton v. Phillips, 11 Heisk. 215; Richardson v. Jones, 12 Gratt. 53; United Plummer, 3 Cliff, 28, Fed. Cas. No. 16,056.

b. Error of Facto 1. General Rule.-The exclusion of errors of law from the causes on account of which a writ coram nobis may issue leaves as the only ground of such a writ errors of fact: Maple v. Havenhill, 37 Ill. App. 311; McKinney. v. Western etc. Co., 4 Clarke, 420; Hawkins v. Bowie, 9 Gill & J. 428; Brindendolph v. Zeller, 3 Md. 325; Fellows V. Griffin, 9 Smedes & M. 562; Higbie v. Comstock, 1 Denio, 652; Patterson v, Arnold, 4 Cold. 364. The use of the expression, errors of fact, in connection with this writ is too well calculated to produce the impression that its office may be the correction of errors in conclusions drawn by the jury, or the court sitting as such, from evidence adduced at the trial. But the proceeding is not for the pure pose of revising a decision made by the court or jury upon evidence produced or facts conceded to exist, but to prevent the carrying into effect of a judgment or the enforcement of process rendered or issued without considering, and in ignorance of, some fact which, if known,

Am. St. Rep., Vol. 97-24


States v.

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would have prevented the rendering of the judgment or the issuing of the process. If the alleged error of fact is one which appears on the face of the record, relief, if obtainable, must be sought by appeal or writ of error, and hence cannot be secured by prosecuting a writ coram nobis: Le Bourgeoise v. McNamara, 10 Mo. Ap. 116; Upton v. Phillips, 11 Heisk, 215.

2. Errors of Fact Relating to the Death or Disability of a Party.-If by the rules obtaining in a state, it is improper to proceed after the death of a party: Neilson v. Holmes, Walk. 261; Teller v. Wetherell, 6 Mich. 46; Calloway v. Nifong, 1 Mo. 223; Dugan v. Scott, 57 Mo. App. 663; Dows v. Harper, 6 Ohio, 518, 27 Am. Dec. 270; or against an infant without the appointment of a guardian: Powell v. Gott, 13 Mo. 458, 53 Am. Dec. 153; Kemp v. Cook, 18 Md. 130, 79 Am. Dec. 681; or against a married woman without joining her husband: Latshaw v. McNees, 50 Mo. 381; and the fact of the death, infancy, or coverture does not appear by the record, a proceeding by writ of error coram nobis is proper for the purpose of calling the attention of the court to the irregularity and obtaining relief from the judgment which has resulted from it. In Withrow v. Smithson, 37 W. Va. 757, 17 S. E. 316, it was decided that a judgment against a person insane at the time of its rendition could not be avoided by a writ of coram nobis, or a motion in lieu of it, and hence that relief from such a judgment must be sought by a suit in equity. The reasoning of the court appears to us to be entirely inadequate.

3. Errors of Fact Through which a Party has Failed to Prosecute or Defend an Action.- Where a judgment is suffered by a party without his fault or inexcusable negligence, the practice now generally prevailing is to obtain relief by motion to vacate the judgment, and in many of the states statutes have been enacted specifically appointing the time when, and the circumstances under which, the application for relief may be made and granted: Freeman on Judgments, c. 7. Such relief was formerly obtained by a writ of error coram nobis, and in some of the states this writ is still available for this purpose, and in others, while the proceeding is by motion, it is regarded as of the same nature as the proceeding by writ coram nobis, and is controlled by the same rules. Hence, a judgment may be vacated by this writ when its entry was due to the neglect of the clerk to file the defendant's answer: Jones v. Pearce, 12 Heisk. 281; or of the plaintiff's attorney in not keeping his promise to file the defendant's plea: Tucker v. James, 12 Heisk. 533; or a judgment was entered by default after the cause had been continued to the next term and the plaintiff had therefore left the courtroom: Crouch v. Mullinix, 1 Heisk. 478. Generally, it may be said that the proceeding by this writ is proper whenever the failure to prosecute an action or make a defense thereto was not due to the negligence of the party seeking relief: Crawiorà v. Williams, 1 Swan, 341; Dinsmore v. Boyd,

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* Lea, 689; McLemore v. Durivage, 92 Tenn. 482, 22 S. W. 207, 23 where he was prevented by duress from making his defense: Sanders V. State, 85 Ind. 318, 44 Am. Rep. 29; State v. Calhoun, 50 Kan, 523, 34 Am. St. Rep. 141, 52 Pac. 38; or the judgment was obtained against him without service of process: State v. Heinrich, 14 Mo. App. 146; Merritt v. Parks, 6 Humph. 332.

4. Errors of Fact in Criminal Proceedings.- Proceeding by writ of error coram nobis, in so far as it survives in the United States, is of far greator importance in criminal prosecutions than in civil actions, and may be resorted to for the purpose of calling the attention of the court to any matter of fact not involving the retrial of the merits of the action or of the guilt or innocence of the accused, to which such attention cannot be called by any other proceeding, as that the person, though sane at the time of the alleged offense was committed, was insane at the time of his trial, if the term at which the judgment was entered had closed and it was not within the power of the court to set aside the judgment of conviction on motion: Adler v. State, 35 Ark. 517, 37 Am. Rep. 48. In Indiana and Kansas a conviction may be set aside by writ of error coram nobis when based on the plea of guilty, if it appears that the plea was forced from the accused by well-founded fear of mob violence: Sanders v. State, 85 Ind. 318, 44 Am. Rep. 29; Wheeler v. State, 158 Ind. 687, 63 N. E. 975; State v. Calhoun, 50 Kan, 523, 34 Am. St. Rep. 141, 32 Pac. 38. In Missouri it was held, at an early date, that if a slave was sentenced to the penitentiary as if he were a free person, the fact of his being a slave not being disclosed to the court, such fact miay be made available and his release from confinement procured by his master by writ coram nobis: Ex parte Toney, 11 Mo. 661. Later in the same state, it was determined that when a person under the age of eighteen years was sentenced to the penitentiary without his age being disclosed, the statute requiring his imprisonment in the county jail only, such sentence might be vacated by writ coram nobis: Ex parte Gray, 77 Mo. 160. Where the statute of the state provides for the granting of a new trial or other methods of correcting errors in criminal prosecutions, the writ of error coram nobis may supplement, but may not supersede, any of such methods. Hence the writ is not available in any case where the party had a remedy by appeal or motion for a new trial: Asbell v. State, 62 Kan. 209, 61 Pac. 690; Dobbs v. State, 63 Kan. 321, 65 Pac, 658. Nor does a party become entitled to the writ on showing that he was unable, within the statutory limits of time, to prepare his record upon appeal: Collins v. State (principal case), 66 Kan, 251, ante, p. 361, 71 Pac. 251; or that he has discovered new evidence material to his defense: Howard v. State, 58 Ark. 229, 24 S. W. 8; Dobby v. State, 63 Kan. 321, 65 Pac. 658; Bigham v. Brewer, 4 Sneed, 432.

5. Errors of Fact in the Issuing of Process. There is said to be no doubt that a writ of execution may be quashed by a proceeding

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