
    Merritt vs. Parks.
    1. The statute of limitations is an admissible defence toa motion, and applies to the substance of the case and not to the form of the proceeding.
    2. Where a party obtained a judgment against a co-surety after the claim was barred by the statute, without notice, appearance or defence, a writ of error coram nobis is the proper remedy.
    On the 14th day of November, 1844, Merritt filed his petition in the circuit court of Williamson county, against A. Parks, administrator of Neely.
    This petition states that on the 25th day of March, 1843, a judgment was rendered in the circuit court of Williamson county, in favor of Parks, administrator of Neely, against petitioner for the sum of $424; that this judgment was rendered on motion without notice, and that petitioner had no knowledge of the existence of said judgment till long after its rendition; that said judgment was founded on a cause of action which was barred by the statute of limitations at the time the motion was made, and that such fact would appear by reference to a transcript of such judgment which was exhibited.
    The petition prayed for a writ of error coram nobis, returnable to the circuit court of Williamson county, and that upon the return of said writ, that the judgment be reversed for error of fact, and that he have a writ of execution to restore to him the money collected on said judgment.
    This petition was sworn to by the petitioner, and at the November term, 1843, a motion was made for a writ of error coram nobis, but the said Parker not being notified, the court ordered the case to stand continued, and that the defendant be notified by service of a copy of the motion.
    At the March term, 1844, the plaintiff filed his assignment of error alleging the cause of action was of more than six years standing before the motion was made for judgment.
    The defendant demurred to the assignment of error and plaintiff joined in demurrer.
    At the March term, 1845, the presiding Judge, Maney, on argument sustained the defendant’s demurrer, and dismissed the petition. The plaintiff appealed.
    
      
      D. Campbell, for plaintiff in error.
    1st. The first question in this case is, if a motion of one co-surety against another for judgment for money paid more than six years before the motion is made, be within the statute of limitations. That it is not within the express letter of the statute must be conceded; but that it is within the spirit and all the mischief of the statute must also be conceded. The motion is an action. 4 Yer. 198, and it will only lie in such cases as debt would lie in. It is, therefore, a mere action of debt without the writ and declaration. This court, it is conceded, has heretofore recognized and acted upon principles Which authorise it to hold such motion to be within the statute of limitations. Thus it said in Pike vs. Green, 1 Yer. 465, a,nd repeated the same in Phipps vs. Rich* mond, 1 Hum. 21, and again during the present term, in Sloan vs. Clark; speaking of the application of. the statute of limitations to suits before justices of the peace, the court say, “in this summary proceeding the substance is looked to as in courts of chancery, and the statute made to apply to the evidence.” This principle embraces the present case. The motion is in substance an action of debt, and the “application” of the statute to the “evidence” will render it a bar of the action. There is stronger reaspn for the application of this principle to “motions” in the circuit courts, than to proceedings, before magistrates, in as much as the amounts involved in the former description of eases will generally be much larger than those in the latter.
    This court held in Hinkle vs. Currin, 2 Hump. 137, that “a garnishee is entitled to defend himself by the statute of limitations.” Now, the proceeding against a garnishee is an action. “After the issuance of the summons,” says this court, in Clark vs. Williams, 2 Hump. 363, 364, “there is a cause pending between the original plaintiff and the garnishee.” The case of Hinkle vs. Currin, is therefore another instance of the application of the statute of limitations to these summary proceedings Upon the principle that the court looks to the “substance” and applies the statute to the “evidence.” Whdt solid reason can be suggested against the application of this principle to summary proceedings by motion? There can be none.
    2d. The second question is, if the .writ of error coram nobis be the proper remedy to reverse- a judgment rendered bn motion against a co-surety upon a claim which was barred by the statute of limitations, when the judgment was rendered. The office of that writ is to reverse a judgment for error in matter of fact. It usually lies in the court in which the judgment was rendered. The case usually put to illustrate the application of a writ of error coram nobis is that of a judgment rendered against a woman who is a feme covert as a feme sole, or of a judgment against an infant as of full age. The error in fact in this case is ad idem with these instances. It is that this claim was barred by the statute of limitations, when the judgment was rendered. The assignment of errors contains a statement of the facts which constitute'the bar, and that assignment is demurred to, which is admission of the truth of these facts. Goodwin et al. vs. Saunders and Reed, 9 Yer. 91. It is, therefore, conclusively admitted Upon the record, that the claim was barred by the statute, when the judgment 'was rendered — that is, it is conclusively admitted that the claim had accrued more than six years before the motion and the rendition of the judgment and the creditor was within the saving of the statute. Then, if the statute of limitations applied to the case, and if the facts alleged in the assignment of error be such as constitute error in fact, the original judgment is erroneous, and so is the judgment upon the writ of error, and this court should reverse the latter judgment, and revoke the former. That the mode adopted in this case is the proper one in which to proceed for the purpose of reversing a judgment of the same court for error in fact, is obvious from the case of Wynn vs. the Governor, 2 Yer. 149; see 2 Saunders. 101, 2 vol. Tidd’s Practice; 2 Bacon Abr. 484; 9 Viner. 540, 550.” An assignment of errors in the nature of a declaration, and is either of error in fact, or error in law. The former consists of matters of fact not appearing on the face of the record, which if true, prove the judgment to have been erroneous, as that the defendant in the original action being under age appeared by attorney, that a feme plaintiff or defendant was under coverture at the time of commencing the action, or that the plaintiff or defendant died before verdict or interlocutory judgment.” 2 Saund. 101-2.
    
      Marshall, for defendant.’
   Reese, J.

delivered the opinion of the court.

The defendant in error on motion, and without notice, appearance or defence, recovered a judgment against the plaintiff in error, in the circuit court for Williamson county, for money paid by his intestate as co-surety with the plaintiff in error. The plaintiff in error brought his writ of error coram nobis to reverse said judgment for error in fact, and the error assigned was that more than six years had intervened between the payment' of the money and the making of the motion, and that, therefore, the statute of limitations of six years barred the- claim upon which the motion was founded.

The question involved in the writ of error coram nobis was decided in the circuit court against the plaintiff in error, and he has brought the cause to this court.

It is held, 1 Yer. 455, and 1 Humph. 21, and during the present term, that in cases before the justices of the peace, the bar of the statute arises out of the evidence and must be applied according to truth and substance, and not according to the form of action, in the same manner as in courts of equity. The principle of these decisions applies with equal force to these, summary remedies by motion given by statute to courts at law. The motion is in substance and legal effect an action, but the form of the action is not specific or named in the statute of limitations. If the statute applies at all therefore, it cannot apply to the form of the action, but must arise out of the evidence and be applied to the substance of the case. To hold that it does not apply at all in cases where a common law action, if brought for the same thing, would be barred, or bill in chancery by analogy, would be to give an effect to these summary remedies beyond the purpose of their creation, and alike violative of the general policy of our laws and the principles of right. This being so, there is no difficulty in holding that the writ of error coram nobis is the proper remedy. It is the only remedy at law. If it do not exist, the party would be without any remedy. It has been used in similar cases by our practice heretofore.

We are of opinion, therefore, that the last judgment of the circuit court is erroneous, and must be reversed, and this court proceeding to give such judgment as the circuit court ought to have given, we reverse the first judgment.  