Williams v. Edwards
| Decision Date | 30 June 1851 |
| Court | North Carolina Supreme Court |
| Parties | JAMES WILLIAMS AND WIFE v. SUSAN C. EDWARDS. |
OPINION TEXT STARTS HERE
In a writ of error coram nobis, only such errors in fact can be assigned, as are consistent with the record before the Court, in which the case was tried.
Appeal from the Superior Court of Law of Greene County, at the Spring Term 1851, his Honor Judge CALDWELL presiding.
This was a motion in the Superior Court of Greene, for a writ of error, coram nobis, to reverse a judgment of that Court for error in fact. On affidavits, the case was this: Richard Edwards gave his bond to the plaintiff, and, after the obligor's death intestate, suit was brought thereon in the County Court against his administrator. He pleaded fully administered, and the plaintiff confessed the truth of the plea, and signed judgment for the debt; and then sued out a scire facias against Susan C. Edwards, as heir at law, to have execution against the real estate descended. The scire facias recited the former suit, and that the administrator pleaded fully administered and the confession of the plea by the plaintiff. The heir pleaded thereto, among other things, nul tiel record, on which issue was joined. After a trial in the County Court, the case went by appeal to the Superior Court. Through the inadvertence of the Clerk, as now suggested by the plaintiff, the transcript from the County Court did not set forth the above mentioned plea, nor the plaintiff's admission, that the administrator had fully administered; and on that ground the Court adjudged that there was no such record, and gave judgment for the costs against the plaintiff. The plaintiff further swears, that the original record in the County Court contains the matters so recited in the scire facias, that the debt is justly due, and that there are no personal assets to satisfy it.
The Court denied the motion, and the plaintiff appealed to this Court.
Rodman, for the plaintiff .
J. W. Bryan, for the defendant .
It is not to be considered whether there be error in law in the judgment; for, if there were such error, it could not be corrected by writ in the same Court. Moreover, the motion is founded exclusively on an alleged error in fact. A writ of that kind can be had only when allowed by the Court where the record is; and, if in such a case an appeal will lie to this Court, we must say, in our own opinion, it was right not to allow it in this instance. The only error which it is proposed to assign is in a matter of fact directly repugnant to the record. The party wishes now to show, that in truth there was such a record, in contradiction to the finding of the fact by the Court, that there was not such a record. An averment of fact against the record cannot be heard in a case of this kind more than in others; Bac....
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Reed v. Bright
...recital of the record itself, and is not an error of fact which can be reviewed upon writ of error coram nobis. In the case of Williams v. Edwards, 12 Ired. 118, C. J., for the North Carolina court, has elaborately discussed the question. Among many other things thereon, he said: "An averme......
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Dantzic v. State
...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 (1851). As succinctly stated in the first headnote in Roughton v. Brown, supra: 'A writ of error Coram nobis lies from any court of r......
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Hadley v. Bernero
...the record in a way to enable the upper court to pass on it. Black, Judgments, § 300; Howard v. State, 58 Ark. 229, 24 S. W. 8; Williams v. Edwards, 34 N. C. 118; Hawkins v. Bowie, 9 Gill & J. 428. So far as this record discloses, there was no affirmative finding by the circuit court that t......
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In Re Taylor.
...procedure in a case like the present. G.S. § 4-1; In re Taylor, 229 N.C. 297, 49 S.E. 2d 749; Roughton v. Brown, 53 N.C. 393; Williams v. Edwards, 34 N.C. 118; Lassiter v. Harper, 32 N.C. 392; Tyler v. Morris, 20 N.C. 625, 34 Am.Dec. 395. See Massie v. Hainey, 165 N.C. 174, 81 S.E. 135; Rob......