Crawford v. Williams

• Citation: 31 Tenn. 341
• Parties: CRAWFORD v. WILLIAMS.
• Decision Date: 31 December 1851
• Court: Supreme Court of Tennessee

31 Tenn. 341

CRAWFORD

v.WILLIAMS.

Supreme Court of Tennessee.

December Term, 1851.

The judgment in this case was rendered upon the facts, and in the manner so fully set forth in the opinion, at the August term, 1851, of the circuit court for Maury county, Dillahunty, judge, presiding.W. F. Cooper, for Crawford; S. D. Frierson, for Williams.

Totten, J., delivered the opinion of the court.

On the 9th May, 1850, in the circuit court of Maury, Charles D. Crawford recovered judgment against John Williams for $768.12, for freight on 346 bales of cotton, alleged to be due to him from the defendant.

On the 30th August, 1850, the defendant exhibited his petition before the judge of said court, and for the reasons therein stated prayed that the execution of said judgment be superseded, and for a writ of error coram nobis to revoke and annul the same. These writs were accordingly granted by the judge. At September term, 1851, the said Crawford, by attorney, moved the court to dismiss said petition; the motion being overruled, he thereupon pleaded “that the matters and things stated in said petition are untrue, and prays that the same be enquired of by the court.” Upon a trial thereof by the court it was adjudged that said former judgment be revoked and annulled, and that said cause be reinstated on the docket for trial de novo. From this judgment the said Crawford has appealed in error to this court.

The questions to be considered relate, first, to the manner of proceeding in error coram nobis; second, to the merits upon the facts as they appear in the present case.

It seems, from our own cases, to be a proper practice to state by petition the facts and grounds upon which the party seeks to obtain the writ of error coram nobis; and where a supersedeas is likewise desired to restrain execution of the judgment sought to be revoked, the petition, on that account, becomes a necessary practice.

The supersedeas may be granted on ex-parte application without notice; but it seems that the writ of error coram nobis is granted, on motion, before the court, of which motion notice must be given to the defendant in error, unless he, by appearing, waive it. Wynn v. Governor, 1 Yerg. 150;Goodwin v. Saunders, 9 Id. 91;Merritt v. Parks, 6 Humph. 332. The defendant in error must appear, or have notice to appear, because the writ of error coram nobis is in the nature of a new suit, to revoke and annul the judgment in the former suit.

The writ being granted, the plaintiff in error makes a formal assignment of errors, in the nature of a declaration, stating the errors in 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 demurrer is of course referred to the judgment of the court. 2 Tidd's Pr. 1173.

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. 2 Tidd's Pr. 1175; 2 Bac. Abr., title Error.

If the pleadings result in an issue of fact, it must, of course, be tried by a jury, as in other cases. The judgment, if for the plaintiff in error, is that the former judgment be recalled, revoked, and annulled; if for the defendant in error, that the same be affirmed. 2 Tidd's Pr. 1179.

Now, it will be seen from this brief statement that several manifest errors in practice were committed in the present case.

First, there was no assignment of errors in fact, and the defendant's plea traversing the facts stated in the petition is not to be regarded as forming any issue. Second, upon the assumption that there was an issue of fact, it was error to submit it to the judgment of the court, instead of the verdict of a jury. Third, the court having adjudged the case in favor of the plaintiff in error, and revoked and annulled the former judgment, it was error to order that said cause be reinstated on the docket for trial de novo; for the judgment upon error coram nobis is final, as relates to the former judgment and suit.

2. In the next place, as to the merits as they appear in the facts of the present case:

The said Williams, a citizen of New Orleans, was summoned in the former suit while on a visit in Maury county. He applied to M. S. Frierson, an attorney residing in Maury, and who had regularly attended to professional business for him for several years, to attend to that suit. He stated the case fully and in detail to the attorney, and the facts upon which he relied in defence. It appeared to the attorney, from this statement, that the plaintiff had no cause of action, and he replied “that he would see Maj. Polk, and if he concurs with me in opinion, we will dismiss the suit.” He afterwards spoke to the attorney about the propriety of transferring the suit from the state court to the circuit court of the United States, at Nashville. He left for New Orleans under the full impression that he had retained Mr. Frierson, and, having placed him in possession of his defence, that he would, as in former cases, give the case proper attention. Mr. Frierson, who was examined as a witness, gives it as his opinion, in view of the facts as they occurred, that said Williams left with the full impression that he had retained him as counsel in the case.

But the fact was Mr. F. was employed with Maj. Polk as counsel for the plaintiff...