Reid's Adm'r v. Strider's Adm'r

• Decision Date: 14 May 1850
• Citation: 48 Va. 76
• Parties: REID'S adm'r v. STRIDER'S adm'r.
• Court: Virginia Supreme Court

48 Va. 76

REID'S adm'r v. STRIDER'S adm'r.

Supreme Court of Appeals of Virginia.

May 14, 1850

1. A writ of error coram vobis does not lie in the Supreme court of appeals.

2. Where a party to a cause pending in the Supreme court of appeals dies pending the appeal, it is not necessary to revive the cause in the name of his representative; but the case may be revived when it goes back to the Court below.

This was a motion upon notice by Hunter, administrator of Reid, to set aside a decree of this Court made at the April term 1845. The case is reported in 2 Grattan 34. The ground of the motion was, that before the case was argued or decided, the appellee Strider had died. It appeared that Strider died in March 1845; and that the cause was argued in April and decided in May of that year, without a revival of the suit against his administrator, or a suggestion of his death upon the record.

G. N Johnson for the motion.

The proceeding by notice, on motion, has in practice been substituted for a writ of error coram vobis. Eubank v. Ralls, 4 Leigh 308. But if the Court shall be of opinion that the proceeding should be by the writ, then this motion may be considered as an application for the writ.

On the merits. Strider and Reid's adm'r were the only parties to the appeal. Both were therefore necessary parties because at common law the death of either party abates the suit. 3 Bl. Com. 302; and this law is only so far modified by statute as to authorize a revival by scire facias; but not to authorize a Court to make a decree when there are no parties. The statutes which authorize a revival of a suit shew that the revival is necessary. Indeed, so necessary is it that there shall be the proper parties before the Court when the cause is decided, that if the Court has proceeded to decide the cause after the death of a party, this is an error of fact for which the common law gives the writ of error coram vobis. Bank of Alexandria v. Patton, 1 Rob. R. 499; May v. State Bank of North Carolina, 2 Rob. R. 56. And our act of 1819, Sess. Acts 1819-20, p. 24 gives this writ.

The counsel on the other side may attempt to distinguish between cases in the inferior Courts and cases in this Court. But our statute gives the writ to this Court as well as to the inferior Courts. And as there is no restriction upon it in the statute, the extent of its use must be determined by the common law.

This writ is used by the Court of King's bench, which is an appellate Court; and that Court uses it in cases of appeal. Why then should it not be used in this Court? The same evil exists here. Parties in this Court die as in other Courts. If it is said they are represented by counsel here, the same may be said of parties in other Courts. But there can be no counsel of a dead man; and his representative is entitled to choose his own counsel.

Although there is no decision of this Court sustaining the use of the writ here, yet there are opinions of the Judges in favour of it. Stanard's opinion in the Bank of Alexandria v. Patton, 1 Rob. R. 499; Baldwin's opinion in May v. State Bank of North Carolina, 2 Rob. R. 56. The practice in this Court is not to hear a cause where a death is suggested until it is revived. And if the revival is not necessary, why has the statute given the writ of error coram vobis?

It may be said that although the administrator of the deceased party may ask to set aside the decree, that the party who was alive at the hearing and was represented by counsel cannot. But we do not ask to set aside the decree as a matter of convenience but of law. And was it ever heard of that there could be a judgment which bound one party but did not bind the other. On this point, however, the authority is express and decisive. Bac. Abr. title Error, letter J. § 6. And in Daniel v. Robinson, 1 Wash. 154, it was held that where one party is dead, the other party may consider the cause not ready for a hearing until there has been a scire facias to revive it.

Cooke for Strider's adm'r.

We are willing to meet the case hypothetically as a petition for a writ of error coram vobis. This writ we say is inconsistent with the constitution of this Court. The fact that there is no precedent for it here, is conclusive against it. A writ in an inferior Court is intended not only to revive the case but to have it tried over again. The petitioner expects to be benefitted by the new trial on which he may introduce new evidence. But no new evidence can be introduced in this Court.

Look to the class of cases in which this Court refuses to alter a decree once made though erroneous on its face. Campbell v. Price, 3 Munf. 227; Towner v. Lane, 9 Leigh 262. In this last case there had been a vacation of but eight days, and yet this Court refused to alter the decree.

The counsel on the other side asks why may not this Court issue the writ as well as the Court of King's bench, which is a Court of appeals. It is not feasible for this Supreme court to modify its rules of practice to accord with the practice of the King's bench, which though an appellate is an inferior Court. It is dangerous to take up one point of practice and conform to it without considering the antecedents and succedents.

It is supposed by the counsel on the other side, that the act of 1819, Sess. Acts 1819-20, p. 24, gives this Court authority to use the writ of error coram vobis. The intent of that act was to facilitate the obtaining the writ where it was legally obtainable before. The draftsman of the act seems to have supposed that this Court might issue the writ. In that he was mistaken, and the act does not authorize it.

BALDWIN J.

The case presented for our consideration is briefly this: Reid, the owner of a negro boy, on which he had given a deed of trust, agreed with Strider to place him in his possession till the 1st of January 1834, when Reid was to refund the money secured by the trust deed, (which Strider undertook to discharge,) and take back the boy, or receive the balance he should then be worth at a fair valuation, and make a good title for him. Reid failed to perform the condition, and afterwards his administrator brought a suit in equity to redeem the slave, upon the allegation that the transaction was a mortgage; and it was so held by the Circuit court. Reid's administrator was therefore charged with the money advanced, with interest from the 1st of January 1834, and credited by the hires: and a small balance being found in his favour, Strider was decreed to pay it, and to deliver the slave. From this decree Strider appealed, and this Court, in May 1845, held the contract to be not a mortgage, but a conditional sale, and the sale not having been abrogated, by performance of the condition, that he became Strider's property, without accountability for hires. The decree of the Circuit court was therefore reversed, and Strider decreed to pay the balance of the value of the boy on the 1st of January 1834, after deducting the money advanced, with interest from that date. See Reid's adm'r v. Strider, 2 Gratt. 34. And now, nearly five years after the decree of this Court, a motion is made here, either to set it aside, or to award a writ of error coram vobis; on the ground that at the time of its rendition, Strider had died, to wit, in the month of March previously, and consequently, that the case was prematurely and irregularly heard, inasmuch as Strider's death ought to have been suggested, and the appeal revived against his representative.

I need not consider how far this Court may amend its judgments and decrees, at a subsequent term, by correcting clerical misprisions in the entries thereof, the question here being of a quite different nature. We are called upon not to amend, but to reverse, annul, or set aside the decree, in order that the appeal may be replaced upon our docket, and heard de novo upon its merits, after a revival thereof against Strider's representative; and this, too, upon the application of the adverse party, who might have had the death suggested, and process of revival issued, before the hearing was had in this Court.

It is not the province of this Court to exercise appellate jurisdiction over its own adjudications, and it has no process adapted to such a purpose. It has no power to award writs of error to its own judgments, or allow appeals from or bills of review to, its own decrees, for any error of law or of fact appearing upon the face of its records. Nor can it, for errors of fact not apparent upon its records, grant writs of error coram vobis, or entertain bills of review. It is the appellate forum in the last resort, for the revisal of...