
    Welsh et al. vs. Harman et al.
    
    A judgment was rendered against A. and others, in the county court: they presented a petition for, and obtained a certiorari, which, upon motion, was dismissed by the circuit court, and judgment rendered against the petitioners: It was held, that a writ of error coram nobis would not afterwards lie to correct the judgment of the county court.
    This was a judgment in the county court of Henderson, obtained by Harman and others vs. Marshall, the sheriff, and the other defendants, as his securities, for failing to return an execution which came into his hands as sheriff. The sheriff and his securities applied for, and obtained a cer-tiorari to take the cause to tire circuit court, stating in the petition an excuse for the non-return of the execution. ^ ^10 next c*rciat court) a motion was made to dismiss the certiorari, which was done for want of merits in the petition, and judgment rendered against the petitioner and his securities. After the dismission of the certiorari, and more than two years after the judgment was pronounced in the county court, the defendants prayed for, and obtained a writ of error, coram nobis, and petitioned for a certiorari, to bring up the record of the county court, which was granted, and having pleaded non est factum, to the bond of the sheriff, and issue having been taken, the jury found in favor of said plea, and the court pronounced judgment, revoking the county court judgment, for the errors in fact, upon which it was rendered. From this judgment, the plaintiffs in error prosecuted this appeal in error.
    
      Jl. Huntsman, for the plaintiffs in error.
    The plaintiffs insist,
    ' 1. That no writ of error, either coram nobis or otherwise, can be granted by the laws of Tennessee, after two years had expired from the date of the judgment sought to bo set aside or reversed, and before suing out said writ. The time of the rendition of the judgment in this case, was November, 1831. The petition for the writ in February, 1834. See Hay and Cobb’s 255.
    2. They insist, that a writ of error coram nobis cannot be issued from the circuit court, to bring from the county court any cause, and try errors of fact which happened m the county court. But it is peculiarly intended to enable the courts to correct the errors in fact in the same court where they happened. The case, in 1 Yerger, supports this point. 1 Hay. 59; Taylor’s Hep. 47; 2 Bacon’s Abridgement 484; 2 Strange 690; 949, 975; 9 Viner 540, 550; 1 Burrow 410.
    3. They insist, that the defendants ought to have taken a writ of error from the judgment originally rendered in the county court, in 1831, or had the writ of erfoi coram. nobis in the county court, in proper time to correct the judgment found upon errors of fact. But by taking a different course, they have waived any advantage they might have held, if it had been properly pursued/
    4. A certiorari will not lie, after the time of two years has elapsed from die rendition of the judgment in the county court. 4 Hay. 101, 145.
    
      *&. B. Bradford, for defendants in error.’
    The questions which the counsel for defendants in error will present, are,
    1. Will a writ of error coram nobis lie in this case. This point is settled in the case of Thomas Wynne and-others vs.' the Governor. 1 Yerger 149.
    It was determined in that case, that a jndgment taken in the circuit court against sureties, by motion, without previous notice, may, by the same court, be superseded after its rise; and, at a subsequent terra, the surety may assign errors in fact to be tried by a jury.
    2. Is die circuit, situated as this case is, the proper court in which to make the application for the writ of error coram, nobis.
    
    The cause was removed from the county court by die writ of certiorari and judgment was entered up against the defendants therein, upon the dismissal of the certiorari} under the acts of 1807, ch. 81, sec. 2, and 1817, ch. 119, authorizing final judgment to he entered in cases wherein ■ certioraris axe dismissed. By the action of the court, the cause was, to all intents and purposes, retained in it, the judgment below affirmed and merged in the one rendered in the circuit court.
    In England, if a writ of error is. once taken, the record is removed; and although it be afterwards .quashed, for any defect, yet the record continues in the court of error. 1 Lord Raymond 151, Walker vs. Stokoo; 1 Strange 606, CooPer vs- Ginger; 2 Lord Raymond 1403; 3 Tidd 1057; 2 Sanders 101, note 1. And upon all such ref cords, a writ of error coram nobis lies, as appears by th| above cited cases.
    But whether or not the whole case was brought up in the first instance, is not very material. The circuit court had the power to bring it up as it has done, and try it, being a court of general jurisdiction, having controlling power over all inferior courts. 14 Johnson’s Rep. 423, Arnold vs. Sandford. See, also, Carre vs. Barker, Cro. J. 250. Both of the foregoing authorities* prove, that a writ of error will lie, from a superior to an inferior court, to correct matters of fact. See, also, Lee vs. Turbeville, 2 Wash.' 163.
    3. Have the defendants in error lost their remedy in this case, by their laches?
    The first certiorari was taken by Marshall, the sheriff, and that was continued until October term, 1833, at which time it was dismissed, and judgment entered against him and defendants in error; execution issued, returnable to April term, 1834; and to supersede this judgment and execution, the securities regularly appear, and at the next term (April, 1834), move to assign errors in fact, and to plead the plea of non est factum. The writ of error coram nobis is par tictilarly applicable to this case. Here the defendants in error had no time or opportunity to plead their matter in discharge of the action, judgment having been entered without notice. 9 Viner 529.
    But suppose the circuit court could not have granted the writ of error coram nobis, upon the dismissal of the first certiorari, after entering the judgment of dismissal, still the certiorari granted at the April term, 1834, on the application of the securities (now defendants in error), brings up the cause from the county court, and their petition sets out facts sufficient to warrant the court in granting it. The reason given is,, that they had no knowledge of the fact of the bond being void, until shortly before that tíme. The pleadings and judgment in this case in the circuit court, prove, that it was an original cause which was tried in that court, brought up by ccitiorari from the county court; hence, in any event, die circuit court acted correctly, in the re-examination of this case.
    4. The statute of 1799, ch. 12 (1 Scott 642), limiting writs of error to two years, relates only to errors in law, upon the record, and never contemplated errors in fact; it uses the word “reverse,” which is only applicable to writs of error in law; revocatur, revoke or recall, is the technical expression used in annulling a judgment for error in fact. 2 Bacon 503; 11 John. Rep. 460; Dewitt vs. Post, 14 Do.'417.
    
      W. 'Stoddart, in reply.
    1. The defendants, by setting out the facts or merits properly in their petition, would have been allowed their defence on the first application. 5 Hay. Rep. 277, 226, 4 Hay. 241, 147.
    2. The court acted correctly in dismissing the first petition. See the case, Harman and.others vs. Hill and Henderson, at this term.
    3. The circuit court erred in allowing second petition. Petition for a second certiorari, should not be granted, except under extraordinary circumstances, and for very special reasons; and facts which might have been stated in the first application, will be excluded from consideration in the second application. 4 Haywood 241. The reason -'given for the second application, as stated in the petition, is, “because there was no copy of the bond on the record from the court below, and because said certiorari was dismissed on the petition. This is no -legal excuse for the parties, and evades, or fails answering the objection. The objection is, that defendants ought and should have stated their grounds in the first petition; and not having stated them, should have given a’legal excuse for their omission. excuse is given in the second petition, why the de-fence could not be made in the circuit court; but no excusé js g¡ven why tiie matter of defence was not set out and relied on in the first petition; and as it should have been there set out and relied on, to show the merits of defendants, their not doing so, and having no legal excuse for not doing so, makes the second certiorari void. 4 Haywood’s Reports 241, 147. There being no copy of the bond in the record of the court below, was a matter occurring after the first petition granted, and .could have had no influence on the defendants at the time they presented their petition.
    4. The writ of error coram nobis was improperly granted: 1. Because the certiorari., is a concurrent remedy in this instance, and the defendants having failed therein, cannot af-terwards resort to this remedy, any more than if a party brings assumpsit where debt will also lie, and failing to recover, should bring debt for the same cause. See 1 Co-myn’s Digest, Title Actions, 228. 2. Because the writ of error, coram nobis, is only to be resorted to “where a party has had no day in court.” ’Where the party is in court, or has it in his power to be there, he must then make his ■defence. “Nothing shall be assigned for error, which the party might have pleaded to the action, and had a proper time to do so. 9 Viner529, 541; 6 Comyn’s Digest, Title Pleader, 459. “He cannot assign for error, a thing which was his own default. Ib.
    The circuit court have the power to correct errors of fact in inferior courts, and in its own court, by writ of error coram nobis. 9 Viner 488; 14 John. 417; 2 Yerger 149. Thatis, “where .a party has had no dayin court.” Toextend its operation beyond this-rule, would leave no boundaries for its use, and would give it a latitude, which would be intolerable in practice. The certiorari, as used in Tennessee, is co-extensive with this writ of error, in correcting errors of fact committed in inferior courts; and as this remedy is adequate, it is made a question whether the remedy by writ of error coram nobis, should not be confined to errors of fact in the circuit court, and parties be compelled to resort to the writ of certiorari, to correct errors of fact, committed in inferior courts, as heretofore.
    There is no pretence for saying the defendants were not parties in the first application. They are so on the face of the petition. ‘They signed the certiorari bond. In all the subsequent proceedings, they recognize the first petition, as their act as well as the sheriff’s, and they cannot thus evade the operation and construction of law on their acts.
    The judgment of the circuit court was to correct the error of fact in the county court. In the circuit court, the judgment was properly given, dismissing the first petition. Had tho circuit court the right, at a subsequent term, to set •aside or supersede this judgment in its own court, on motion? In no case can the circuit court do this, merely on •motion.
   Green, J.

delivered the opinion of the court.

In the first place, we will consider what was decided in the circuit court, at the time the certiorari was dismissed. The cause was then before the court, only as it appeared in the petition for a certiorari. The defence now made was not stated as a ground for relief in that petition. The only ground stated, was, tire allegation of an insufficient excuse for not returning the execution. The court, then, in dismissing the petition for a certiorari, decided only, upon the sufficiency of the petition. Having decided that it was insufficient, and dismissed the certiorari, the court proceeded, as it was bound to do by the act of 1817, ch. 119, to render judgment for the amount of the judgment in the court below. This, as has been decided, at the present term, in the case of Marshall and others vs. Hill and Henderson., the court was bound to do, without having any reference to the merits of the case, except as they were disclosed in the petition. There was no facts then involved, or that could possibly be involved in the rendition of the circuit court judgment, except those which were presented in the petition. In relation to this judgment, then, there was no error in fact existing, or that could by possibility be corrected by the writ of error, coram nobis. What then was corrected, or what judgment was to be revoked by the writ of error? The answer is, the county court judgment, against which the certiorari was intended to relieve the party. But that judgment was merged in the judgment, which was pronounced in the circuit court, when the certiorari was dismissed. It no longer remained in force. Its revocation could not, therefore, affect the circuit court judgment, which was properly entered, without having any regard to the merits of the case, as it existed in the county court, except so far as they might have been stated in the petition. It necessarily follows, that the defendants in error, could no more have the writ of error, coram, nobis, than they could have had another certiorari. If there existed any facts of which they could not avail themselves in their first application for a certiorari, or which they were prevented from obtaining the benefit of, by the conduct of the other party, unmixed with negligence or fault on their part, they could have obtained relief in equity, where alone they could be afforded a remedy after the dismissal of the certiorari, and the judgment thereupon entered. But if they might have had the benefit, in that petition, of all the facts which they now set up against the judgment, and failed from mere negligence of availing themselves thereof, their remedy is gone for ever.

The defendants in error are not entitled to a writ of error coram nobis, because they have had aa day in court,” by means of the certiorori. It cannot be objected to this, that the certiorari was dismissed, so that they could not get a decision on its merits, and, therefore, it is the same as though they had not been in court. It was their own fault that they did not state their true and available defence in the petition. The fact existed then, as well as now, i! -i ni- and they must, m the nature oí things, have known of ■ • . ° ' its existence. As it is a principle, that nothing can be assigned for error which the party might have pleaded to the action when he had a proper time for doing so, it follows that this writ, cannot be resorted to, for the purpose of showing a fact, which might have been stated in the petition, and of which the parties in that way could have availed themselves. 6 Com. Dig. Tit. Pleader, 459.

Note by the Court. The proposition assumed in this opinion, that the “judgment of the couuty court was merged in the “judgment of the circuit,court,” is intended to apply to cases only, (like this,) where the whole cause is carried up by appeal or certiorari; and not to eases where writs of error are prosecuted, and no supersedeas has been granted.

For these reasons we think the judgment ought to be reversed, and, that the plaintiff in error is entitled to the benefit of his judgment in the circuit court.

Judgment reversed.  