
    W. H. TIBBS ET AL., Plaintiffs in error, v. JOHN ANDERSON.
    (S. C., Thomp. Cas., 264-271.)
    Knoxville,
    September Term, 1866.
    1. WRIT OE ERROR CORAM NOBIS. Lies for errors of fact not judicially appearing-.
    The error in fact which will render a judgment erroneous, and warrant the writ of error coram nobis to> correct it, must be such as would have precluded or prevented the rendition of such judgment, if the fact had judicially appeared at the former trial. Rule not restricted, but enlarged by the code, sec. 4844. [See note 23 under sec. 4846 of the Code. On the subject generally, see Code, secs. 4838-4846, and notes.]
    Cited with approval: Crawford v. Williams, 1 Swan, 341.
    2. SAME. Newly discovered evidence no ground for, when.
    The party seeking to avail himself of the remedy by writ of error coram nobis because of newly discovered evidence, must show that it has come to his knowledge since the term of court closed, and must assig-n some reason that will enable the court to see that there was no want of diligence in discovering the same. [See notes 27 and 28 under sec. 4846 of the Code.]
    Cited with approval: Bigham v. Brewer, 4 Sneed, 433 (436).
    3. SAME. Nolle prosequi not grounds for, when.
    Where, in an action of trespass on the case for false imprisonment against several defendants, a nolle prosequi is entered as to one of the defendants after the cause is called for trial, and the jury selected, such action by plaintiff cannot operate as such surprise as is contemplated by the statute [Code, sec. 4844], nor can it warrant the writ of error coram nobis.
    4. SAME. Discovery of facts after trial not ground for, when.
    The discovery after the trial that the plaintiff had before the trial received from some of the defendants compensation in lieu and in satisfaction of his damages, and which was not known in time to plead accord and satisfaction, is not such error of fact as will authorize the writ of error coram nob'is.
    5. SAME. Same.
    The discovery, after the trial, of the fact that the plaintiff was a soldier, regularly mustered into the service of the United- States, and as such was captured by defendants in tlie course of regular warfare, will not authorize the writ of error cora-m nobis in an action for false imprisonment.
    6. SAME. Trying several causes together, no ground for.
    The fact that two other causes were consolidated and heard before the same jury at the same time with the one under consideration, is a very loose, irregular, and dangerous practice, well calculated to destroy the unity and purity of the trial by jury, and is not to be encouraged, but this will not warrant the writ of error co-ram nobis.
    7. SAME. Record prevails over petition.
    Wh,ere the petition for the writ o-f error coram nobis states that two other causes were consolidated and heard with the one under consideration, but the record discloses no order of the court consolidating the causes, the supreme court is bound from the record itself to treat the case as having been heard under an agreement that the other two causes were to abide the result of it.
    8. NEW TRIAL. Motion for too late after term closes.
    Where the parties yield their assent to the mode in which the trial is conducted, without objection, take no exceptions to the action of the court, make no motion for a new trial, and let judgment final be entered,, and the term close, it is then too late to make a motion for new trial.
    Cited with approval: Ragsdale v. Buford, 5 Hay., 119.
   Milligan, J.,

delivered the opinion of the court:

This is an action of trespass on the case, brought by summons and auxiliary attachment, in the circuit court of Hamilton county, by John Anderson against James W. Gillespie, W. H. Tibbs and twenty-one others. The trespass complained of in the declaration is the unlawful arrest and immisonment of the defendant in error. During the progress of the cause in the court below, a nolle prosequi was entered as to several of the defendants, and various other intermediate steps taken which we do not deem necessary to notice.

At the June term of said court, 1866, a judgment was rendered against the plaintiffs in error, for $5,000, and an execution awarded with orders of sale, directing the sheriff to subject the lands of the parties attached to the satisfaction of the judgment. At the October term following, the plaintiffs in error exhibited their joint petition to the presiding judge, and for the reasons therein contained, prayed that the orders of sale and execution of the judgment be superseded and that a writ of error coram nobis be granted to revoke and annul the judgment.

The petition is regularly sworn to, and the character of the petitioners sustained by compurgators. The application was heard in open court, and after full argument, the petition was disallowed, and the writ refused, from which an appeal in error is prosecuted to> this court.

Various errors in fact are set forth in the petition, many of which do not tend to render the judgment erroneous, much less to preclude its rendition, if such facts had judicially appeared on the former trial. "We deem it, therefore, necessary to notice only such facts as are assigned as error, which, it is insisted, are reached by the writ prayed for.

By the Code, sec. 3116 [Shannon’s Code, sec. 4844], it is declared: “The relief embraced in this article is confined to errors of fact occurring in proceedings of which the person seeking relief had no notice, or which he was prevented by disability from showing or correcting, or in which he ivas prevented from malting defense by surprise, accident, mistake, or fraud, Avithout fault on his part.”

The grounds of error, in fact, assigned in the petition are in substance as follows:

1. The petitioners were surprised by the plaintiffs entering a. nolle prosequi as to James W. Gillespie, one of the defendants, after the cause Avas called and the jury was selected, from Avhom he had receÍAred, as petitioners are informed and believe, compensation in lieu of his damages Avhen it Avas too late to plead accord and satisfaction, which they are advised Avould have been proper.

2. That they have learned subsequent to the trial that the plaintiff received in lieu and in satisfaction of said damages, $150 from Leonidas Hutchinson, one of the defendants, which was not known to petitioners before the trial, and hence not pleaded.

3. Since the trial of the canse, the petitioners are informed and believe that the plaintiff, John Anderson, was at the time of his arrest regularly enrolled and mustered into the service of the United States, and that he was captured by the said Win. L. Brown, a captain in the service of the so-called Confederate States, at open war with the United States, and hence said capture was purely an act of war, with which petitioners, as citizens, had nothing to do.

4. Petitioners are informed that on the trial of this cause, two other causes, viz.: The case of A. J. Anderson against petitioners, and John Anderson, administrator of James Anderson, deceased, against the same parties, were consolidated and tried at the same time before the same jury, and the same testimony applied to all three of the causes.

Under this state of facts, as presented in the petition, talcing them as true, we are called upon to determine whether they are sufficient to justify the issuance of the writ prayed for or not. The rule in such cases, as laid down in Crawford v. Williams, 1 Swan, 341, appears to be, that an error in fact, which will render a judgment erroneous, must be such as would have precluded the rendition of such judgment if the fact had judicially appeared at the former trial.

This rule, although established before the Code, is not restricted by it. On the contrary, it is rather enlarged, and made to embrace cases of surprise, accident, mistake or fraud, without fault on the part of the applicant for the writ.

In this case the plaintiff in error plead to the action, and by themselves or attorneys, were present at the trial, contesting the right of the defendant in error to a recovery. The fact that a nolle prosequi was entered as to Gillespie, one of the defendants below, after the cause was called and the jury selected, could not operate as such a surprise as is contemplated by tbe act of assembly, or justify tbe issuance of the writ of error coram nobis.

■ So, also, the discovery of the fact that the defendant had, previous to the trial, received $150, in satisfaction of his damages from one of the defendants, which was not known, as stated, in time to plead it, does not bring this case within the principles governing applications of this sort. This allegation is merely newly discovered matter, and however availing it might have been, if properly pleaded in time, or effectual on a motion for a new trial, if made at the proper time, it is impossible for us to say that it would have defeated the plaintiff’s right of action. It may, if properly pleaded, or it may not have done so. It is not, therefore, such a fact as falls within the principles of law governing this writ.

The same reason applies with equal force to the discovery of the fact that the plaintiff below, John Anderson, was a soldier, regularly mustered into the service of the United States, and as such, he was captured in the course of regular warfare. These are all the facts in the nature of newly-discovered testimony which have come to the knowledge of the plaintiffs in error, since, or at the trial, but it does not appear whether they were ascertained pending the trial, or after its termination and during the term, or after the term closed. If before the close of term, they might have been availing on a motion for a new trial, but no motion was entered, and if after the term, there should have been some reason assigned that would enable the court to see that there was no want of diligence on the part of the plaintiffs in error, in discovering the facts they now insist on as rendering the judgment erroneous.

It is, therefore, now too late by this remedy for the plaintiffs in error to avail themselves of these facts. In the case of Bigham v. Brewer, 4 Sneed, 433 [436], the court say: “If such a practice were tolerated, it would lead to almost interminable litigation. After a judgment had been regularly rendered and paid off, as in this case, the defendant might discover or fabricate evidence that would have been material on the trial, and he would only have to obtain his writ of error coram nobis, assign, errors in fact, and proceed to try the whole matter over again. Such a practice would render the validity of the judgment of the courts too uncertain to comport with sound policy, safety, or public confidence, and cannot be sustained upon authority.”

The fact that the other cases were consolidated and heard at the same-time with the one under consideration, is certainly very loose, irregular and dangerous practice, and well calculated to destroy the unity as well as the purity of the right of trial by jury, and by no means to be encouraged. But .the record before us,which is exhibited with the petition, discloses no order of the court consolidating these causes; nor does it appear from the impaneling and swearing of the jury, that more than the one cause was submitted to the jury. are bound, therefore, from the record itself, to- treat this case as having been heard under an agreement that the other two' causes mentioned in the petition, were to abide the result of the one now under consideration.

But be this in point of fact as it may, we do- not think the statements in the petition, when coupled with the record, exhibited as part of the case, present such a niistake in fact as entitles the plaintiffs in error to the writ of error coram nobis.

The parties were all represented on the trial by attorneys, who yielded their assent to the mode in which it was conducted without objection, and after the verdict, took no exceptions to the action of the court, nor did they ever move for a new trial. Judgment final was pronounced on the verdict, and the term closed, after which a motion for a new trial comes too late. Ragsdale v. Buford, 5 Hay., 119, 120. Judgment affirmed.  