
    Mears v. Garretson.
    Where a party sues out a writ of error coram nobis, but does not give the notice as required by statute, the judgment may be affirmed.
    Errors will not be favorably regarded which are based upon the negligence of the party assigning them.
    Where a party filed a motion in the district court, to affirm,for want of notice, but before the motion was decided filed a demurrer, it will not be considered an appearance or waiver of notice.
    
      Error to linn District Oov/rt.
    
   Opinion by

KiNNEY, J.

In this case judgment was rendered. in tbe district court of Linn county, against tbe plaintiff in error, upon wbicb be sued out a writ of error cor am nobis.

In tbe district court a motion was made to dismiss tbe writ .and affirm tbe judgment, for the reason that no notice bad been given to tbe adverse party of suing out tbe same- This motion was sustained by tbe court, and tbe judgment affirmed with ten per cent damages.

This decision of the district court is assigned for error. The statute allowing tbe writ of error coram nobis, provides that tbe party suing out such a writ, shall cause notice in writing to be served upon tbe adverse party or bis attorney, ten days before tbe next succeeding term of tbe court, and if ten days shall have elapsed from the time of serving such notice, and tbe first day of said term tbe court shall proceed to ■ try and determine said cause, whether the defendant appear or not. If ten clays do not intervene tbe cause shall be continued &c. Laws of 1846, p. 51. § 3. '

Tbe question presented in this case, is one arising upon a construction of this statute. It is insisted by tbe attorney for the defendant in error, that tbe court by virtue of its power under tbe statute, (to adopt such rules as were necessary to govern proceedings of this kind) bad a right under those rules to affirm tbe judgment when tbe notice required bad not been given. Tbe statute does not aj> pear to contemplate an entire absence of notice, and consequently there is not any provision made for a proceeding where notice has not been given, and we are led to inquire whether by legal intendment the court properly exercised a power which is not expressly conferred by statute. The legislature authorized the issuing of this writ for the purpose of correcting errors in fact, and defined the powers and duties of the court while sitting as a court upon its own alleged errors. The statute provides for the hearing and determining of the cause upon notice given, but we cannot think that it ever was the intention of the legislature that upon default of the party to give notice, the court would have less power to render judgment than if notice had been given. If this were the case, the party in default could take advantage of his own laches, and as the power to affirm would depend upon giving notice, a party wishing to avoid the collection of a judgment might sue out his writ, fail to give the notice, avoid the affirmance of the judgment and in this manner escape the-collection of judgments in the district court. But it may be said that the writ would be' dismissed for the want of notice. This would not remedy the evil as the party being then restored to his original position could sue out a second writ of error, and as a penalty in damages could only follow an affirmcmce of the judgment, it is not improba ble that a statute which is only remedial íes its character might be made an engine of oppression. Although the statute does not expressly authorize the court to render judgment, in case notice has not been given, yet we are not disposed by a forced and unnatural adherence: to the letter of the statute, to give it an effect so subversive of justice, and the rights of judgment creditors. It-is a well settled practice to give remedial statutes a liberal construction, and •we are not inclined to depart from that rule, particularly in cases where injustice would be the result of such departure.

'Courts are not disposed to regard very favorably, errors which are based upon the negligence of the party assigning them, whereby be seeks to reverse a judgment upon, tbe ground tbat be was in default. In tbis case tbe party virtually says upon tbe motion to affirm for tbe want of notice, tbat if be bad given tbe notice required of bim by statute, tbe court would bave bad power to affirm tbe judgment, but as be failed to do tbat, tbe court cannot affirm, and tbe action of tbe court predicated upon tbe fact tbat tbe party did not give notice, is assigned in tbis court for error by tbe party in default. We tbink upon tbis assignment tbat tbe court did not err.

JSÍ. W. Isbell and Wm. /Smyth, for plaintiff in error.

I. M. Preston, for defendant.

Tbe second error alledged is, tbat tbe defendant in error filed a demurrer, and therefore there was an appearance; and be could not object to tbe proceeding for tbe want of notice. From tbe record it appears that tbe first step taken by the defendant below, was to file a motion to affirm; before tbat motion was disposed of be filed a demurrer. Tbe object of filing tbe demurrer undoubtedly was to be prepared in tbe event of tbe motion being decided against bim, and as tbat motion appears to bave been tbe one relied upon, andas it was entitled to and received precedence, we cannot tbink bis rights under tbe motion were waived or prejudiced by bis filing a demurrer.

As we see no error in tbe ruling of tbe court, tbe judgment is therefore affirmed.

Judgment affirmed.  