Marble v. Vanhorn

Ellison, J. — This proceeding is founded on a motion in the nature of a writ of error coram nobis, whereby it is sought to set aside a judgment retaxing costs in a cause which had been tried. The motion was sustained and plaintiff appeals. It appears that the costs were retaxed in the original action on the ground, as alleged in the motion and shown on the trial thereof, that the subpoena umder which the witnesses (such being the cost in dispute) were summoned was issued in blank, and after-wards filled in. The truth and fact was that a proper order had been left with the clerk for the subpoenaing of these witnesses by name, and that the clerk issued a proper subpoena to the sheriff, duly filled up with the names of the witnesses and otherwise in proper form; that the sheriff served such subpoena on the witnesses, but thereafter lost.it. He thereupon got from the clerk a subpoena in blank in which he inserted the names of the witnesses and made his return of service. The action of the clerk and sheriff in getting out the blank subpoena was unknown to this plaintiff, and did not appear at the trial of the motion to retax costs. The blank subpoena was dated the tenth day of January, 1890, and the sheriff’s return thereon showed the true date of his service on the witnesses under the original subpoena, viz., January 7, 1890. The question is will the writ coram nobis lie in such a state of case? This writ, and the motion we have in this modern day, as a substitute for it, is addressed to the court itself where the record is and lies to correct some latent matter of fact unknown to the court, and which, if known, [364] would have prevented the 'judgment rendered. Its most frequent application is to a case where judgment has been rendered against a married woman a's though single, an infant as though of age, a dead man as though alive, etc. (Dugan v. Scott, 37 Mo. App. 663, and Pickett v. Legerwood, 7 Pet. 144, and authorities cited) or, where there has been error in the process or misprision of the clerk. The matter of fact must not have been known to the court, for, if it was known, and yet the court acted erroneously or illegally, it is an error of law in the court, and should in that proceeding be taken to a higher tribunal for reversal, instead of making application to the court itself. 1 Black on Judgments, sec. 300; 1 Freeman on Judgments, sec. 94; Milan v. Robertson, 47 Tex. 222; Hawkins v. Bowie, 9 Gill & J. 428. There is another important rule found in this branch of the law, viz.: That where the party complaining knew the fact, or might have known it, and failed to bring it to the attention of the court he cannot afterwards do so. Thus, “A man shall never assign that for error which he might have pleaded in abatement, for it shall be accounted his folly to neglect the time of taking that exception. As, if a feme covert bring an action in her own namq per attornatum, and the defendant plead in bar to the action, he shall never afterwards assign the coverture for error.” 3 Bacon’s Abridgments, Error, 375. And so, in keeping with what has been already said, if the matter be once passed upon as an issue, this motion cannot be invoked; for, if it could it would be apparent that there would be no end to litigation. McKindley v. Buck, 43 Ill. 488; 1 Freeman on Judgments, see. 94. An application of these principles to the facts of this case leads to a reversal of the judgment. The [365] matter here complained of was an improper retaxing of costs. The retaxing of the costs was founded upon a motion which set out as a fact that the witnesses h^,d attended under a subpoena which had been improperly issued in blank, and the blank.had been improperly filled in an unauthorized manner. The defendant here who was resisting that motion must have known the fact that he had ordered the clerk to issue a subpoena in proper form. An inquiry or examination would have found out then what was afterwards ascertained as to the facts surrounding the matter. The plaintiff here, we concede, did not in fact know of what the officers had done in relation to the blank subpoena, and we may assume or concede that, but for the false appearances brought about by the subpoena in blank, the result of the motion to retax would have been different. Yet this result is only like many others in litigation. It is not the office nor within the purview of a motion in the nature of a writ of error coram nobis to give a new trial merely because certain facts in the nature of evidence going to the merits of the case were undiscovered by a litigant in time for use at the original trial. Such evidently is not what is meant by latent matter of fact unknown to the court or party affected. The matter of fact which is meant in this connection is such a character of fact as would, if known, disable the court from rendering the judgment; as if, as before stated, the party was dead or a feme covert or a lunatic. It must not be understood that the function of a motion of this nature is to operate like a motion for a new trial. But the latent fact unknown to the court may consist in some matter of process or misprision or default of the clerk, and such counsel assert the act of ■the clerk in this case to be. The mere irregularity of [366] the process or the misprision of the clerk will not avail in this proceeding if it was known to the party affected, or if it was a matter involved in the litigation. Eor in the one case the party cannot afterwards complain, as if he was returned as being duly summoned when he was not, yet appears to the action. And in the other case the court has passed upon the question, and thus made of it an error of law. Now the very matter involved and in litigation on the original motion to retas the costs was the legality of the blank subpoena, and the fact th at there was in truth another proper subpoena was simply -unknown evidence going to the merits of the controversy on the facts. Richardson v. Jones, 12 Gratt. 53. Our opinion is that plaintiff cannot, within proper legal principles, obtain relief in'this proceeding, and we, therefore, reverse the judgment, without prejudice to plaintiff. All concur.