Thompson v. Valarino

By the Court, Jewett, J.

A writ of error can only be brought on a final judgment; but where such a judgment has been rendered, any one who is a party or is privy to the record and who is prejudiced by. the judgment and may therefore be benefitted by its reversal, may bring error. (2 Saund. 46, a. note (6); Id.. 101, note (1); Bac. Ab. Error, B; Dale v. Roosevelt, 8 Cowen; 333.)

The judgment in.this case is in form against both defendants ; and their joint personal property may be taken for its satisfaction. (2 R. S. 377, § 1, and seq.) In Mason v. Denison, (11 Wend. 612, S. C. in error, 15 id. 64,) two defendants against whom judgment had been obtained as. joint debtors upon service of process upon one, joined'in a writ of error coram nobis, and upon judgment of affirmance here, they brought error to the court for the correction of errors, no objection being made that the one not served with process was improperly joined in the suit. I do not-see but, that the party not served, is sufficiently affected by the judgment to enable him to bring error thereon

*181Two sureties are required in it bond given on suing out a Writ of error, (2 R. S. 595, § 26,) and it is objected that Mann being one of the defendants ill the judgment, is to "be regarded as a principal. The writ is however prosecuted thus far by Thompson alone. Should Mann hereafter become a party, the bond might then be insufficient. At present it is regular.

Again, it is said "that because error in fact is assigned the writ ought'to have been allowed by’the court. A writ of error coram nóbis lies in this court, to review its own judgment for an error in a matter of fact, (11 John. 460; 14 id. 417; 20 id. 22;) and such writ must "be "allowed by the court; "but a judgment of the common pleas or the superior court may also be reviewed here for an error in fact, and the writ in such a case need not be allowed by the court, but may be issued like other writs of error to these courts. (2 R. S. 595, § 25.)

This is a case within the provisions of 2 R. & 593, §§ 9, 10, and a rule must be entered directing Mann to appear hi this court on the first day of the next special term and join in the writ of error or be forever precluded from bringing another writ of error, on the judgment. Proceedings in the meantime are to be stayed.

Ordered accordingly.