Supreme Court of United States.
*146 Mr Loughborough, for the defendants in error.
The motion was opposed by Mr Wickliffe, for the plaintiffs in error.
*147 Mr Justice JOHNSON delivered the opinion of the Court.
This was a motion to quash the writ of error upon two grounds.
The first was because the record was not filed with the clerk of this court until the month of June 1832, whereas the writ of error was duly served, returnable to the January term 1832. It was contended that the case was out of court by lapse of time, and the filing at that late day could not reinstate it. But on this ground we are of opinion that the motion cannot be sustained; since the defendant in error might have availed himself of the benefit of the rule of court, which gave him the right to docket and dismiss the cause. This court decided in the case of Wood and Lide, that provided the service be before the return day of the writ, a return at a subsequent day will be sustained. 4 Cranch, 150, 2 Peters's Cond. Rep. 76.
The second ground is one which required more examination. The judgment below was rendered on a writ of error coram vobis, sued out in the same court, for the purpose of correcting an error committed at a previous term, and into which it was contended that the court had been surprised. We are not now called upon to decide on the merits of the cause below; nor whether it was a case proper for the application of that remedy. The motion here is to quash the writ of error, upon the ground that it is an exercise of jurisdiction in the court below which does not admit of revision in this tribunal: that it is but a different form or mode of exercising the power of the court of the first resort over its own acts, and is therefore subject to the same exceptions which have always been sustained in this court, against revising the interlocutory acts and orders of the inferior courts.
It cannot be questioned that the appropriate use of the writ of error coram vobis, is to enable a court to correct its own errors; those errors which precede the rendition of judgment. In practice the same end is now generally attained by motion; sustained, if the case require it, by affidavits; and it is observable, that so far has the latter mode superseded the former in the British practice, that Blackstone does not even notice this suit among his remedies. It seems, it is still in frequent use in some of the states; and upon points of fact to which the remedy *148 extends, it might, perhaps, be beneficially resorted to as the means of submitting a litigated fact to the decision of a jury; an end which, under the mode of proceeding by motion, might otherwise require a feigned issue, or impose upon a judge the alternative of deciding a controverted point upon affidavit, or opening a judgment, perhaps to the material prejudice of the plaintiff, in order to let in a plea.
But in general, and in the practice of most of the states, this remedy is nearly exploded, or at least superseded by that of amending on motion. The cases in which it is held to be the appropriate remedy will show that it will work no failure of justice, if we decide that it is not one of those remedies over which the supervising power of this court is given by law.
The cases for error coram vobis, are enumerated without any material variation in all the books of practice, and rest on the authority of the sages and fathers of the law. I will refer to the pages of Archbold for the following enumeration. (1st Vol. 234, 276, 277, 278, 279.) "Error in the process, or through default of the clerk; error in fact, as where the defendant being under age sued by attorney, in any other action but ejectment; that either plaintiff or defendant was a married woman at the commencement of the suit; or died before verdict or interlocutory judgment, and the like."
But all the books concur in quoting the language of Roll's Abridgement, p. 749, "that if the error be in the judgment itself, and not in the process, a writ of error does not lie in the same court, but must be brought in another and superior court."
The writ of error in this case was but a substitute for a motion to the court below, to correct an error of its own, in granting improvidently a motion for leave to amend. Many years had elapsed since entering a judgment in ejectment; the term declared on had long since expired; the terre tenant was changed; only one of the original defendants survived, and he had removed to a great distance from the premises recovered; on him alone notice of the motion was served; and the court, unaware of these facts, granted leave to amend the declaration in the original suit by extending the term more than twenty years, so as to enable the plaintiffs to sue out a writ of possession. This writ of error was sued out to enable the court *149 below to correct that error; they have ordered that it shall be corrected; and from that order to set aside their former order and quash the writ of possession, is the appeal now made to the reversing power of this court.
We think the case comes precisely within the rule laid down by this court in the case of Waldon v. Craig, 9 Wheat. 576; with this difference, that the latter was a case in which the court thought so favourably of the claim of the plaintiff in error, that they would have sustained the suit if it had been possible. The court there express themselves thus. "There is peculiar reason in this case, where the cause has been protracted, and the plaintiff kept out of possession beyond the term laid in the declaration, by the excessive delays practised by the opposite party. But the course of this court has not been in favour of the idea that a writ of error will lie to the opinion of a circuit court granting or refusing a motion like this. No judgment in the cause is brought up by the writ, but merely a decision on a collateral motion, which may be renewed."
In that case, as in this, the motion was to extend a term in ejectment, after judgment; but where the plaintiff's delay in proceeding with his writ of possession, was not attributable to his own laches. He had been arrested in his course by successive injunctions sued out by the defendants. This court did there recognize the case of delay by injunction as one in which, in that action, the court might exercise the power to enlarge the term even after judgment, and the particular case as one which merited that exercise of discretion; but dismissed the writ of error because it was a case proper for the exercise of that discretion, and not coming within the description of an error in the principal judgment.
On consideration of the motion made to dismiss this writ of error to the circuit court of the United States for the district of Kentucky, it is now here ordered and adjudged by this court, that this writ of error to the said circuit court be, and the same is hereby dismissed with costs.
