Latham v. Hodges
| Decision Date | 30 June 1852 |
| Citation | 13 Ired. 267,35 N.C. 267 |
| Court | North Carolina Supreme Court |
| Parties | THOMAS LATHAM AND D. B. PERRY, v. FRANCIS AND JOHN HODGES. |
An appeal was taken to the Supreme Court, and a final judgment there rendered. A writ of error, coram nobis, upon the ground that one of the parties died before the trial in the Supreme Court, cannot be allowed in that Court.
Error for matter of fact lies only in the Court, in which the record and judgment are, and not to reverse the judgment of another Court, and, especially, of a higher one.
Appeal from the Superior Court of Law of Pitt County, at the Fall Term, 1851, his Honor Judge CALDWELL presiding.
This is an application to the Superior Court of Pitt for a writ of error coram nobis, for error in fact on the following case: A paper writing was propounded in the County Court, as the will of Martin Woolard, by Hodges, as executor, and was contested by Ransom Woolard, and there was sentence for the will. Ransom Woolard took the cause to the Superior Court by certiorari, and gave a bond for that purpose, in which Latham and Perry, the present applicants, were his sureties. In March 1848, the issue was again found for the will, and sentence pronounced accordingly. Then judgment was rendered against Latham and Perry on their bond for the costs, and they appealed to the Supreme Court, where the judgment against them was affirmed, and upon execution the costs were levied. They then made the present application, upon the ground that Ransom Woolard died before the term of the Superior Court, at which the trial took place, and in September 1851 his Honor allowed the application, and the other side appealed.
Rodman, for the plaintiffs .
Biggs and Donnell, for the defendants .
The parties cannot get at their object in the present mode of proceeding. If they could have entitled themselves to the writ of error, for the alleged error of fact, in the Superior Court, it was only while the judgment against them was the power of that Court. Instead of pursuing that course, however, they appealed to this Court, upon the matter of law, so that the judgment, finally rendered against them, was the judgment of this Court, and not that of the Superior Court. Hence this writ cannot be sustained; as error for matter of fact lies only in the Court, in which the record and judgment are, and not to reverse the judgment of another Court, and, especially, of a higher one.
Judgment reversed, and motion...
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Dantzic v. State
...From which no appeal was taken. Although not cited in Taylor and Daniels, we take notice of the decision of this Court in Latham v. Hodges, 35 N.C. 267 (1852). It was there held that the superior court could not reverse a judgment against the sureties on the caveator's cost bond, which judg......
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State v. Merritt, 661
...can only be granted in the court where the judgment was rendered,' State v. Daniels, 231 N.C. 17, 25, 56 S.E.2d 2, 7; accord, Latham v. Hodges, 35 N.C. 267; 18 Am.Jur.2d, Coram Nobis and Allied Statutory Remedies § 4 (1965), although under the common law of England it would lie in the king'......
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Dantzic v. State, 7029SC550
...Carolina. The statement in the Taylor and Daniels cases are consistent with, though perhaps expansive of, the doctrine set out in Latham v. Hodges, 35 N.C. 267, where the Court held that a writ of error Coram nobis will not lie in the superior court After an appeal to the Supreme Court and ......
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Boyd v. Smyth
...the defendant waived his right to a writ of error coram nobis. Partlow v. State (Ind. Sup.) 141 N. E. 513, 30 A. L. R. 1414;Latham v. Hodges, 35 N. C. 267; Lambell v. Pretty John, 1 Strange, 690 (93 Eng. Reprint, 786); Hillman v. Chester, 12 Heisk. (Tenn.) 34. Again, it is fundamental that ......