Higbie v. Comstock

By the Court, Beardsley, J. The defendant moves for the allowance of a writ, in the nature of a writ of error coram nobis, to revoke a judgment rendered against him by this court, for error in fact, to wit, that he, being an infant, appeared and defended by attorney and not by guardian. Such a writ does not issue of course but upon sufficient cause shewn. In Ferris v. Douglass, (20 Wend. 627,) Bronson, J. said, “ the writ can only be issued on motion to this court, and cause shown by affidavit. It must appear with reasonable certainty that there has been some error in fact before the writ will be allowed.” The case of Ribout v. Wheeler, (Sayer's R. 166,) is to the same effect. See also Smith v. Kingsley, (19 Wend. 620.) These cases clearly show that the writ is not demandable of right, and will not be allowed to issue unless cause is shown. It will not be allowed where the object is to harass a party by needless litigation and expense, or for the mere purpose of delay; but if error in fact is shown to exist it will in all cases be granted. We cannot, as I think, look at the cause of action upon which the judgment was recovered, and if we find that the party who. now asks an allowance of the writ acted with palpable dishonesty and bad faith, refuse its allowance on that ground. 1 find no authority which xvould justify such a course, [654] and none of this character was referred to by the counsel who opposed this motion. I am persuaded no writ of error has ev.er been refused on such a principle. It is shown that this defendant appeared and defended by attorney ; and if he was then an infant the judgment is erroneous, although in fact rendered after he arrived at full age. (Camp v. Bennett, 16 Wend. 48, and cases there referred to.) The affidavit to prove the infancy is very direct and positive, and is certainly sufficient for the present purpose. The counsel for the plaintiffs here, who are to be defendants in error, asks leave to plead as many pleas to the assignment of errors as they shall be advised are proper and necessary. That question will properly arise after error has been assigned, and on a motion to be made by the defendants in error. It is not therefore now considered. It is also suggested on behalf of the plaintiffs, that they may prefer to vacate the judgment in their favor rather than abide the result of a writ of error. I see no objection to this if they think proper to do so. The defendant will thus at once be relieved from the judgment, which is all he can hope for from a writ of error. The plaintiffs may, if they choose to do so, vacate their judgment within twenty days, in which case this motion will be denied without costs' to either party; but if the judgment is not vacated and notice thereof given within that time, a .writ of error may issue, and in that event costs are to abide the result. Ordered accordingly.