The opinion
Ruffin, J.,
dissenting. The action was instituted, and the process regularly served upon all the defendants, including the intestate, Scott, returnable to spring term, 1868, of Wake superior court. At the return term an appearance was entered of record for all the defendants, and oyer of the cause of action craved and had, but no defences of any sort entered of record for them.
At spring term, 1869, a reference was made to ascertain the amount of the plaintiffs’ demand, and upon the coming in of the report at the December term of that year, the same was confirmed, and judgment rendered against all the defendants of record, the intestate, Scott, having, however, in the meantime died, but no suggestion of his death being entered of record.
In 1879, Andrew Syme qualified as the administrator of the said Scott, and soon thereafter commenced proceedings to have the judgment set aside as to his intestate, purely upon the ground that it. was taken after his death, and before the appointment of an administrator, but without venturing to deny the validity of the claim for which the judgment was rendered, or setting up any defence thereto.
Under these circumstances, the judge below did not deem it just to set aside the judgment, and therefore overruled the motion looking to that end, and in so doing I cannot concur with the majority of this court in thinking that he committed an error.
In reaching a conclusion upon the subject, I- have felt controlled by what. I conceive to be two important principles, but which my brethren seem to think not entitled toso much weight. The fact is, that a judgment taken against a deceased party upon whom there had been personal service of process and an appearance entered of record 'in his'life-time, is not void, but simply erroneous, and to be corrected only upon a writ of error eoram nobis; and the other is, that such a writ is never a matter of *486 right, but is granted or not at the sound discretion of the court, and never, unless the party make a show of merit in his application for it.
1. In Freeman on Judgments, § 140, it is expressly said that if jurisdiction be once obtained over the defendant in his life-time, a judgment rendered against him subsequently to his death is not void, but erroneous, and in section 153 the reason given for it is, that the court, having acquired jurisdiction over the party in his life-time, is thereby empowered to proceed with the action to final judgment, and while it ought to cease the exercise of its jurisdiction after the party dies, still its failure to do so amounts only to an error, to be corrected upon an appeal, in case the fact of the death appear of record, or by a writ of error coram nobis, if it have to be shown aliunde.
In Warder v. Tainter, 4 Watts, 270 , the court say, that the authorities are abundant to show, that in no case is a judgment rendered by a court of competent jurisdiction considered void on account of the death of the defendant having occurred before its rendition, but after the service of process upon him; and that at most it is only avoidable and subject to be reversed upon a writ of error, but in no other way. A.ud again, the same court say, in Yaple v. Titus, 41 Penn. St. Rep., 195, that the law is well settled that the death of a defendant does not take away the jurisdiction of the court after it has once attached, so as to render void a judgment subsequently given against him; that such a judgment is reversible only upon an appeal, or by a writ of error coram nobis.
In Collins v. Mitchell, 5 Florida, 364 , and in Coleman v. McAnulty, 16 Mo., 173 , exactly the same doctrine is held, that a judgment is not void because of the death of the defendant pending the suit, and before its rendition, but that it is erroneous, and can only be avoided in the manner that other judgments are gotten rid of that are erroneous in matter of law or fact.
These authorities I have referred to, not for the purpose of showing the origin of the principle upon which I rely, but to *487 show how generally it has been accepted by the courts, even in modern times. But the truth is, that the doctrine is a very old one, being clearly laid down in Tidd’s Practice, 1136; Comyn’s Digest, Title Pleader ( 3 B., 1 ); 2 Ld. Raymond, 1414; 2 Saunders’ Rep., 101, and recognized in 3 Bacon Abridg., 294.
In Saunders, it is said that an assignment of errors is in the nature of a declaration, and is either of error in fact, or error in law. The former consists of matters of fact not appearing on the face of the record, which, if true, prove the judgment to have been erroneous; as, that the defendant died before verdict or judgment, &e., in which case the remedy is by writ of error coram nobis.
In Arrowood v. Greenwood, 5 Jones, 414 , the late Chief Justice Pearson concisely and sharply drew the distinction between such judgments as are void, such as are irregular, and such as are erroneous because of a fact not presented by the record, or of which the court had no knowledge, and he declares that the only mode by which a judgment of the last sort can be corrected is by writ of error for matter of fact.
2. A writ of error coram nobis is not a writ of right. In Tyler v. Morris, 4 Dev. & Bat., 487 , a motion was made for such a writ for error in fact, in that the plaintiff was dead a( the time the judgment was rendered, but as there was conflict in the testimony as to his being dead, the motion was denied and the defendant appealed. In delivering the opinion of the court and after referring to the English precedents, Judge Daniel, without any apparent reservation, declared that a writ of error coram nobis is not a writ of right, but rests in the discretion of the court before which the application is made, and that before it could be allowed, there must be an affidavit of merits, setting forth some error in fact, by which, in case the fact assigned for error be true, the plaintiff’s right of action would be destroyed.
In Smith v. Kingsley, 19 Wend., 620 , the supreme court of New York say, that a writ for an error in fact is not a writ of right, and to warrant its allowance there must be an affidavit of *488 some such error in fact as will destroy the plaintiff’s right to have judgment. And so it was laid down by Denison, J., in Ribout v. Wheeler, Sayer’s Rep., 166.
In Winslow v. Anderson, 3 Dev. & Bat., 9 , an application for a writ of this nature was l’efused upon the ground that the judge below, as he conceived, had no power to grant it, aud upon appeal to this court his judgment was for that reason reversed; but the court say, they wish it to be distinctly understood that if the court below had refused the writ in the exercise of its discretion, they would neither have had the inclination nor the authority to interfere with its action in the premises.
It is true, that in some of the cases there are to be found occasional expressions which seem to speak of judgments taken under the circumstances that this one was, as being absolutely void, and there are a few decisions, though none in this court, which look in the same direction. But the great weight of the authorities, whether we consider their number or the character of the courts from which they proceed, tends strongly the other way, and serves to convince my mind that the view which His Honor took of the matter was the correct one — that is to say, that the judgment is not void, and that though erroneous, inasmuch as it was rendered after the death of the defendant, yet. the court will not, for that reason alone, vacate it, unless it be shown, or at least alleged, that it does injustice to some one. Why set it aside, however rendered, if it be for an honest debt, and for the true amount? and if not so, why didn’t the administrator, who alone is presumed to know, so declare in his application ?
I am far, however, from thinking that the plaintiffs should be permitted to enforce the collection of their judgment without giving the administrator, or the heir, an opportunity to show cause against it. To this end, I think, an issue in the nature of a scire facias should be directed to be tried as to the merits, if any plea they have; but in the meantime, that the judgment *489 should stand, with its liens unimpaired, as a security for such amount as might ultimately be found to be due the plaintiffs. In this way and in this way alone, as it seems to me, can the full rights of all the parties be protected, without the least risk of doing injustice to any. But to my mind, it is a hard measure to mete out to the plaintiffs to strike their judgment from the docket as being void, after it has stood for so many years, and to put them to prove their claims anew, now that their witnesses may be dead, or their proofs lost.
Upon the point as to the statute of limitations, I fully concur in the views expressed by the Chief-Justice in his opinion, and also in holding that under-our present system a party may have the benefit of a writ of error coram nobis upon a motion made in the cause, Nelson v. Brown, 2 Mo., 20 . But as our statute (Rev. Code, ch. 4, § 20) expressly provides that every person who may bring a writ of error shall execute a bond with security to abide by and perform the judgment which may be finally given, I cannot understand how the parties who make this application can be excused therefrom.
Pjexí Curiam. Reversed.