
    *Dows and Carey v. Harper and Paine.
    "Writ of error coram nobis allowed in a proper case, such, as death, of party before judgment.
    From Ashtabula. Application for a writ of error.
    Griswold and Sawtell, for the applicants,
    exhibited to the court the record of a judgment of the Supreme Court in Ashtabula county, at August term, 1833, in favor of Harper and Paine v. Dows and Carey, assigned for error the death of Paine before the judgment, and prayed for a writ of error coram nobis resident.
    
    They argued that “section 3 of the act organizing judicial courts, 29 Ohio L. 56, authorizes this court, on good cause shown, to issue writs of error, and all other writs not specially provided for by statute, which may be neceLsary to the due administration of right and justice throughout the state, and for the exercise of its jurisdiction agreeably to the usages and principles of law.”
    This statute is supposed to confer upon this court a plenary power to redress the party injured by error in a judicial proceeding, if the usages and principles of law furnish any remedy. No principle of law is better established, and no principle of right and justice is sooner admitted than that a defendant in an erroneous judgment is entitled to a reversal, except, perhaps, for error in law in the court of dernier resort. In cases not specially provided for by statute, the legislature points us to the common law, and if a remedy is there found, this court will adopt and administer it.
    In the matter of James Turner, 5 Ohio, 542, on motion for mandamus, this court, after reciting the above-recited statute, say that “the occasions upon which the writ is to issue are not pointed out, and it is necessary to recur to the princijdes of the common law to see in what cases it is properly applicable.”
    If, then, the writ of error coram nobis is in use for correction of error in fact in analogous courts of common law, this court will allow it.
    The writ of error coram nobis resident is familiar to and in ordinary use in the banco regis and in the common bench, and demandable in all cases ex debito justitice except treason and felony. 2 Salk. 504; 3 Salk. 147; 2 Salk. 144. Error in fact is not the 519] error of the judges, and therefore reversing it is *not reversing their own judgment. 1 Roll. Abr. 747 ; Cro. Eliz. 105.
    From the cases in the elementary books, the following principles appear to be fully established as the law of English courts
    1. That in the dernier resort error coram nobis will not lie — not for error in law, for it would be unseemly for the judges to sit for reversal of their own judgment once solemnly pronounced — not for errors in fact, for it is beneath the dignity of the house of peers to examine matters of fact.
    2. That in the king’s bench and in the common pleas coram nobis will lie for correction of errors of fact, for reversing error in fact by the judges is not reversing their own judgment; but for error in law it will not lie, as the judges will not reverse their own judgment, and there is a higher tribunal in which the subject may have his redress.
    If, then, this case is to be governed by the law recognized in English courts, upon what grounds shall the application be rer fused ?
    Shall it be said that this is the court of last resort to the citizens of this state, and that in the present case the writ can not issue, for the same reason that it would be denied in the dernier resort of the English court, to wit, the apprehension of a sacrifice of dig* nity ? Will this court be influenced by such a reason ? We apprehend not. Good reasons there may be against this court’s sit-' ting for correction of its own judgments for error in law.
    Though a court of the last resort, the Supreme Court of Ohio, in its powers and practice, has a much stronger affinity, and is more analogous to the court of king’s bench than to the house of peers.
    The same necessity exists for the action of this court in this and in like cases as in king’s bench — that it is the only means of redressing the wrong — and no code of law, it is contended, will be violated. The reasons which banish that writ from the house of peers do not exist here. Without the reasons assigned, that court must have entertained it; and in the absence of the same reason it is believed this court will allow it, for “ eessat ratio, eessat lex.”
    
    The true dignity of this c urt is based upon its efficiency to administer right and justice, and to redress the wrongs of the citizens. It is ever conversant with matters of fact, and *though [520 by the constitution and law the highest judicial tribunal of the state, by its original and appellant jurisdiction, takes cognizance of by far the most important and numerous of litigated facts.
    No reported decision of this court is found directly settling the question of this application, yet we can not suppose it novel.
    In Stiver v. Stiver, 3 Ohio, 19, though the same point was not then in issue, the court intimate an opinion favorable to this application.
    Death of plaintiff or defendant before judgment is good assignment for error. 2 Saund. 101.
    By our statute, suit does not abate by death of joint plaintiff or defendant, but on suggestion of the death on the record the cause shall proceed.
    We contend that judgment after the death, without the suggestion on the record, is erroneous.
   Judge Wright

delivered the opiniou of the court:

The single question raised upon the application before us is, whether a writ of error will lie to examine into an error in fact, dehors the record in a judgment of the Supreme Court? No practice on the question is known to us, this being the first application within our knowledge, though tradition advises us that the writ has, in times past, been both allowed and refused.

In England, errors in fact are corrected in the common pleas during the judgment term, without writ. After the close of the term such errors are examined into upon writ of error in the king’s bench. 1 Burr. 410; 2 Saund. 101, a., n. 1, and 308. The writ of error coram nobis is not within the statute of 27 Eliz., allowing writs of error from the exchequer to the king’s bench ; and such writ is held not to lie to the house of lords, because it is inconsistent with the dignity of that court to take cognizance of facts. It has, after great argument, been decided that the king’s bench could reverse its own judgment on a writ of error. 3 Salk. 145; 2 Leon, 74; Cro. Eliz. 106 ; Yelv. 157. It is now held, that for errors in fact in the king’s bench, its judgments may be reversed in the same court by writ of error coram nobis resident, F. N. B. 21 (49); 1 Strange, 127; as otherwise the erroneous proceeding could not be reached.

*If the necessity for a writ of error to the king’s bench in

the state of things in England was a good reason for the use of the writ there, the same reason exists in this state. The Supreme Court being our highest judicial tribunal, no other court can examine its proceedings; and if the writ of error coram nobis resident is refused in our practice, wrongs resulting from the errors in fact of this court would remain without redress.

The Supreme Court in New York has adopted the like practice. 11 Johns. 460.

The writ is allowed, returnable to the next term.  