delivered the opinion of the Court:
In McKindley v. Buck, 43 Ill. 488, it was strongly intimated that a motion made at a term subsequent to that at which judgment was rendered, could not be sustained, though made to correct errors in fact as upon writ of error coram nobis. This was based upon the doctrine of Cook v. Wood et al. 24 Ill. 295, holding that the power of the court over its judgments was exhausted and ended by the close of the term at which they were rendered, except as to amendments in mere matter of form.
By the act in regard to practice in courts of record, sec. 66, (Laws 1871-72, p. 348,) it is provided: “The writ of error coram nobis is hereby abolished, and all errors in fact committed in the proceedings of any court of record, and which, by the common law, could have been corrected by said writ, may be corrected by the court in which the error was committed, upon motion in writing made at any time within five years after the rendition of final judgment in the case, upon reasonable notice. Where the person entitled to make such motion shall be an infant, feme covert, non compos mentis, or under duress at the time of passing judgment, the time of such disability shall be excluded from the computation of said five years.” This act went into force July 1, 1872.
The right of a party to have errors in fact corrected by the court in which they were committed, was recognized as a common law right in Sloo v. State Bank, 1 Scam. 436, Beaubien v. Hamilton, 3 Scam. 213, and Peak v. Shasted, 21 Ill. 137. These cases all hold that the party has the same right to have errors in fact corrected by motion in the same court as he would have upon writ of error coram nobis at common law. In Beaubien v. Hamilton it was assumed, and in Peak v. Shasted expressly decided, that infancy, during the proceedings, and appearance by an attorney, or want of a guardian and appearance by him, constituted such error in fact. In the last mentioned case, the motion was made in the court below, at a term subsequent to the judgment, and it appearing, by the record in the original cause, that there was no guardian or appearance by one, and, *by the affidavits on which the motion was based, that the defendant was, in fact, a minor, it was held, that the motion to have the judgment recalled should have been allowed, and the order denying it was reversed.
In this case, the motion was made April 11, 1872, after the close of the term at which judgment was rendered, but continued to and heard at the October term, 1872, when it was denied, and the defendant in the judgment making the motion brings the matter to this court by writ of error, assigning for error the refusal of the court to grant such motion. It appears, from affidavits incorporated into the bill of exceptions, that the original judgment was rendered at the October term, 1871; that defendant appeared by attorney, and not otherwise; and that, at the time of its rendition, he lacked some eight days of being twenty-one years of age. There was a stipulation entered into between the parties at the hearing of the motion, which is also preserved in the bill of exceptions, to the effect that defendant caused the record in the original cause to be removed to this court by writ of error, and that, at the January term of this court, 1872, the judgment was affirmed.
We shall not enter into any discussion of the question whether a motion of this character could properly be made after the lapse of the term at which the judgment was rendered, irrespective of the statute of 1872, or whether that statute applies to a motion in fact made before the act went into force; because, there are two controlling reasons why we should not reverse the order of the court below denying the motion. The first is, that plaintiff in error has brought up, in return to his writ of error, only a bill of exceptions embodying the motion, notice, affidavits, stipulation and order of the court upon the motion. No part of the record in the original cause is brought up. It is an elementary rule, that nothing can be assigned for error which contradicts the record. Wetmore v. Plant, 5 Conn. 541; Hill v. West, 4 Yeates, 385. The question whether or not plaintiff in error appeared only by an attorney, is one which underlies the entire merits of the application, and can be determined by us only by inspection of the record itself. That record was before the court below, forming an essential and indispensable part of the grounds of decision. If indispensable there, it must be here, in determining the correctness of that decision. It is no answer to say that plaintiff in error swore that he appeared only by attorney, and no affidavit was filed contradicting that statement ; because, if a score of witnesses had sworn to the same statement, and the record showed to the contrary, the latter would prevail. The burden was upon plaintiff in error to affirmatively show error in fact in the court below, and here to show error in law in the decision which the lower court made: Inasmuch as the fact as to how he appeared in the cause, whether by attorney or guardian, could be properly ascertained only by the record in that cause, and as he has seen fit not to have it brought up, he must fail in his assignment of error.
A bill of exceptions is not, and never was, anything more than a statutory means of introducing into the record matters which, otherwise, would not be apart of it. We can scarcely conceive of a case under our practice where a bill of exceptions, embodying only such matters as can be brought into the record in that way, would, of itself, be sufficient in this court without a record proper.
The second reason why we should not reverse is, that it appears by the stipulation plaintiff in error had sued out of this court a writ of error to bring up the record in the original cause, and the judgment had been affirmed in this court. It is the settled rule of the English courts, that a writ of error coram nobis would not lie after affirmance in the appellate court. Lambell v. Prettyjohn, 1 Strange, 690; Burligh v. Harris, 2 Strange, 975.
By our practice, the motion is substituted to the place of the writ of error, and we perceive no reason why it should not be governed by the same rule.
The order of the court below, denying the motion, will be affirmed.
Judgment affirmed.