delivered-the opinion of the court:
Both parties to this writ of error treat the motion to vacate and set aside the judgment of February 27 as having been made under section 67 of chapter no, Hurd’s Revised Statutes of 1903, which abolishes the writ of error coram nobis and provides that “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.”
It was held in Mitchell v. King, 187 Ill. 452, that although this section of the statute abolished the writ, yet “it did not abolish the essentials of the proceeding, which, in nature, remains the same;” that the motion is the commencement of a new suit in which new issues are made up, upon which there must be a finding and a judgment, and that the motion stands in the place of the declaration. It follows from this construction of the statute that the proceeding is one at law, and is independent of the proceeding in which the judgment sought to be set aside was rendered, and that unless an issue of law is made upon the motion in the trial court the question there passed upon is a question of fact, viz., whether the court in the former proceedings committed any error in fact.
Plaintiff in error contends that the motion in the case at bar did not, on its face, disclose any error in fact, and that the court therefore erred in assuming jurisdiction of the motion. If plaintiff in error desired to present to this court the question whether the motion showed any cause for annulling the former judgment, which is a question of law, he should, under the rules of practice applicable to suits at law in which declarations are filed, have saved that question in some appropriate way recognized by law. This he failed to do. No issue of law was máde upon the motion, no motion in arrest of judgment was interposed in the superior court, and no error has been assigned upon the record of the superior court or of the Appellate Court questioning the sufficiency of the motion to support the order or judgment in this cause. The superior court is, by section 67, supra, given jurisdiction to entertain a motion to set aside a judgment rendered by it at a prior term for errors in fact. It necessarily has the power, in each instance, to pass on the-question whether the motion so made on its face discloses any such error. If it decides that the motion does disclose such error in fact, its jurisdiction in the particular case is not taken away by reason of the fact that its conclusion in this regard is erroneous. The error, if any, in holding the motion sufficient can only be corrected by appeal or writ of error from the judgment rendered in the particular case upon proper assignments of error in the court of review.
The question whether the motion on its face discloses any error in fact is therefore not before this court for consideration.
It is next urged that the matters set up in the affidavits, which were offered and read in evidence upon the hearing in support of the motion, are not such as to entitle defendant in error to have the former judgment set aside and annulled for error in fact,—that is, that the affidavits do not prove an error in fact. Section 89 of the Practice act provides that “the Supreme Court shall re-examine cases brought to it by appeal or writ of error as to questions of law only.” Whether or not there was an error in fact committed in the proceedings which culminated in a judgment in favor of the plaintiff for $3500 was purely a question of fact. It was necessary to establish the error in fact by evidence dehors the record. (Mitchell v. King, supra.) The superior court decided, as a matter of fact, that there had been an error in fact committed in the former proceedings. In order to present to this court the question, as one of law, whether there is any evidence in the record to sustain the order or judgment of the superior and Appellate Courts, it was necessary to submit that question to the superior court as one of law by demurring to the evidence, or by some other mode that would call upon the trial court for a ruling upon that question. Such course is necessary to preserve the question as one of law, even though there is no conflict in the evidence upon which the trial court based its finding. (Sun Mutual Ins. Co. v. Barrel Co. 114 Ill. 99.) Plaintiff in error did not follow this course. Therefore the question whether the affidavits, or the matters therein contained, proved any error in fact in the former proceedings cannot be considered here.
It is also contended that the court erred in hearing the motion upon affidavits. It has always been the practice in this State to hear proceedings of this kind upon affidavits and counter-affidavits, (Peak v. Shasted, 21 Ill. 137; Mains y. Cosner, 67 id. 536; Mitchell v. King, supra, affirming King v. Mitchell, 83 Ill. App. 632; Consolidated Coal Co. v. Oeltjen, 189 Ill. 85;) and we are therefore not disposed to hold that there is any error in such procedure.
Finding no error of law in the record now before us, the judgment of the Appellate Court will be affirmed.
Judgment affirmed.