Tyler v. Morris
| Citation | 20 N.C. 625 |
| Parties | BENJAMIN TYLER v. CHARLES B. MORRIS. |
| Decision Date | 31 December 1839 |
| Court | United States State Supreme Court of North Carolina |
1. A writ of error coram nobis is not a writ of wright. Before it is allowed there must be an affidavit of some error in fact, by which, in case the fact to be assigned for error is true, the plaintiff's right of action will be destroyed; and it is a matter of discretion with the court before which the application is made whether upon the affidavits to grant the writ or not, which cannot be revised by this Court upon an appeal.
2. The court, upon an application for a writ of error coram nobis does not decide the fact assigned for error definitively.
3. If the writ be granted, the other party, when brought in, may plead and take issue upon the fact, which must be tried by a jury, and not by the court.
4. A writ of error coram nobis is not in itself a supersedeas; it is so or not according to circumstances, and therefore execution cannot be sued out after the allowance of a writ of error without the leave of the court, and whether the supersedeas shall issue after the allowance of such writ must depend on circumstances to be adjudged of by the court.
THE defendant Morris made a motion in the Superior Court of law for the county of NEW HANOVER, on the last circuit, before his Honor, Judge Toomer, for a writ of error coram nobis, to reverse a judgment obtained in the said court by the plaintiff Tyler against him for error
in fact, viz.: that Tyler was dead at the time the judgment was rendered; and also for a supersedeas to the execution issued thereon. The attorney who obtained the judgment for Tyler was in court and resisted the motion, denying that Tyler was dead. His Honor refused the motion, giving as a reason that it did not appear to the courtfrom the affidavits that Tyler was dead. From this decision the defendant appealed.
DANIEL, J., after stating the case as above, proceeded as follows: A writ of error coram nobis is not a writ of right. Before it is allowed there must be an affidavit of some error in fact; by which, in case the fact to be assigned for error is true, the plaintiff's right of action will be destroyed. Birch v. Triste, 8 East, 415. The court, in this case, was of the opinion that the affidavits did not lay a sufficient foundation to authorize it to grant the writ. This opinion of the court was one of discretion upon the facts disclosed in the affidavits. As the affidavits did disclose probable grounds that...
To continue reading
Request your trial
-
Lamb v. State
... ... Anderson, 1 Tenn. Ch. 127; 2 R. C. L ... 307; Sanders v. State, 85 Ind. 318, 44 Am. Rep. 29, ... 4 Crim. Law Mag. 359, text 373; Tyler v. Morris, 20 ... N.C. 625, 34 Am. Dec. 395; 23 Cyc. 883 et seq; Robinson's ... Forms, 338; 7 Ency. Forms, p. 741; 18 L. R. A. 838, notes ... ...
-
State v. Huffman
...lies from the refusal of the trial court to allow a writ of error coram nobis, and cited two cases in support, to wit, Tyler v. Morris, 20 N.C. 625, 34 Am.Dec. 395, and Wood's Ex'r v. Colwell, 34 Pa. 92. But this court ignored that issue, assumed that it had jurisdiction of the appeal, and ......
-
Dantzic v. State
...had the fact in the first instance been brought to its notice.' Accord, 18 Am.Jur.2d Coram Nobis, etc., § 2 at 452 (1965); Tyler v. Morris, 20 N.C. 625 (1839); Williams v. Edwards, 34 N.C. 118 As succinctly stated in the first headnote in Roughton v. Brown, supra: 'A writ of error Coram nob......
-
Cramer v. Illinois Commercial Men's Ass'n
...error coram nobis is not a final judgment, and cannot be reviewed upon writ of error or appeal by an appellate tribunal. Tyler v. Morris, 20 N. C. 625, 34 Am. Dec. 395;Wood v. Colwell, 34 Pa. 92. But a writ of error lies from the final judgment of the court reversing, upon error coram nobis......