
    Weaver, Ex’r of Gardiner, v. Shaw.
    The plaintiff recovered judgment before a justice. The defendant appealed. The plaintiff died. The appeal was docketed by mistake in the name of the plaintiff against the surety in the appeal bond. An attorney professing to represent the plaintiff appeared, and without any suggestion of the death of the plaintiff judgment was entered that the suit was settled at the costs of the defendant. Three years afterwards the representative of the • plaintiff filed his petition: Held, That the judgment was void, but by analogy to the period allowed for a bill of review the application came too late to resuscitate the suit.
    ■Where an error of fact is committed, as, for example, in the entry of judgment against a party who is afterwards discovered to have been dead at the time, the proper mode or proceeding is by petition to the court where the error occurred in the nature of a petition for a writ of error coram nobis, and, by analogy to the period allowed for a bill of review, the petition should be filed within two years. (Note 53.)
    
      Appeal from Payette. Gardiner, on the 25th March, 1845, obtained a judgment before a justice of the peace against Peter V. Shaw on a promissory note. Shaw appealed to the Pall Term of tlie District Court and entered into a bond, with Joseph Shaw as his security, on the appeal. Gardiner died on the 12tli June, 1845, having made his will, appointing Weaver liis executor, and James Mayiield, esq., an attorney at law, his legal adviser. At the Fall Term of the District Court tlie papers from the Justice’s Court were regularly returned into court, but the clerk, by mistake, entitled' the case Gardiner v. Joseph Shaw. The death of Gardiner was not suggested nor his executor made a party. The entry of the proceedings of the District Court is in substance as follows: The parties in the case appear by their attorneys, and on motion of lite plaintiil’s attorneys the cause is settled at the costs of the defendant, and judgment was accordingly so entered against the defendant for the costs, which was «al¡slic'd by Peter V. Shaw.
    On the 25th October, 1848. about three years after the above proceedings in the District Court, Weaver, the executor of Gardiner, filed his petition, stating tlie fact that judgment had been obtained, as stated above, by bis testator against Peter V. Shaw; that Shaw liad taken an appeal, and given a bond that was regularly approved by the justice, and that the transcript was lilt'd in the District Court, but that from some cause it had never been docketed. He prayed that citation might issue to Shaw to appear at tlie next term of the court, in March, 1849, aiid that tlie cause be docketed, and judgment rendered in his favor for tlie debt, interest, and costs, as executor, against the defendant. Citation was issued to Shaw, and lie answered, sotting up in defense tlie proceedings and judgment of tlie District Court at the Fall Term, 1845, and that lie liad fully paid tlie note before that judgment was rendered. It was in proof, by the evidence of the defendant himself, that he paid the principal and interest prior to the term of tlie court in the fall of 1845 to one. Field, tlie attorney for tlie plaintiff; that lie paid no money, but it was [S§§] included in a settlement lie liad with Field. The clerk of tlie court, who was clerk at tlie time tlie judgment was rendered, testified that tlie file numbered to correspond with tlie case as docketed contained tlie papers of the justice of tlie peace on tlie appeal of Peter Y. Shaw at tlie suit of Gardiner against him, but that it was docketed in the name of tlie surety in tlie appeal bond by mistake; that S. B. Field, attorney at law, appeared as plaintiff’s attorney when tlie judgment was rendered. The court, on motion, permitted the entry on the minutes of the court of (lie Fall Term, 1845, to be amended nunc pro tunc, by making tlie suit stand Gardiner v. Peter V. Sliaw. The trial by a jury was waived and the cause was submitted by consent to tlie decision of the judge. Judgment was entered in favor of the defendant, and tlie plaintiff appealed.
    
      Hamilton and Chandler, for appellant.
    
      William G. Webb, for appellee.
   Lipscomb, J.

There can be no doubt that the judgment rendered in 1845 was void, as it was not competent to render any judgment in the case after the death of the plaintiff without making his representative a party; and the same objection remained as to the sufficiency of proper parties to the judgment as amended nunc pro tunc. And had the plaintiff presented in his petition the facts and circumstances under which the judgment was rendered — that it was done after the death of the plaintiff, without making his representative a party— and asked to set aside and vacate the judgment so entered, there can be no doubt but tlie court had authority to correct the mistake that it bad been inadvertently drawn into in entering a judgment in favor of a dead party, which judgment was a nullity. Tlie court could and ought to have made this correction, provided it bad been applied for within a reasonable time.

But it is possible that Field may have been the real owner of the debt, though it stood in court in the name of Gardiner as nominal plaintiffand that tho course taken was with a view to avoid the additional expense, of making (lie representative of the nominal plaintiff a party. This presumption might well arise, as no proceedings wore instituted h.v the plaintiff until after lapse of three years. Had he applied within a reasonable time, he would have been heard and the proceedings vacated. The right of Field to control and settle the debt could have been inquired into and decided. The petition in this case, however, even if it had been tiled within a reasonable time, does not state the facts, but sets out a different state of facts from those that really-existed. lie might have amended when he discovered what had been done in the case, and made his petition, in substance, an application in the nature of a writ of error coram nobis; not that it was necessary to he in strict conformity with such a proceeding at common law, but in principle it would have been the same, because it was a mistake that could only be corrected in and by the court whore it occurred. The plaintiff not having so framed his application would be a sufficient ground to sustain the judgment of the court, independent of the fact that he had too long neglected to seek a correction of the errors complained of. It would seem that,'by analogy to a bill of review, limited by our statute to two years, the plaintiff is too late in seeking a remedy. The judgment must be affirmed.

Note 53. — Martel v. Hernslieim, 9 T., 294; Armstrong v. Nixon, 16 T., 610; Brown v. Torrey, 22 T., 54; Moke & Bro. v. Brackett, 28 T., 443; Hollingsworth v. Bagley,35 T.,345; Pullen v. Baker, 41 T., 419. A judgment cannot be impeached in a collateral action by proof that the person for or against whom it is rendered died before its rendition. (Mills -u. Alexander, 21 T.,154; Thouvenin v. Rodrigues, 24 T., 468.)

Judgment affirmed.  