(specially concurring).
I concur in this proceeding. I wish to elaborate on my vote. South Dakota is not swimming alone in a sea of coram nobis. There are thirty-six states, the District of Columbia, and Puerto Rico, which have post-conviction remedies in the nature of coram nobis. They are: Alaska, Arizona, Arkansas, Colorado, Delaware, District of Columbia, Florida, Kansas, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Tennessee, Vermont, Wisconsin, and Wyoming. Source: L. Yackle, Postconviction Remedies (1981 and 1987 Supp.), § 13, at 66-69 and 1987 Supp. § 13, at 20-22. Indeed, the writ of coram nobis is of rare nature. This ancient writ was recognized by the United States Supreme Court in the case of United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954).
In Brockmueller, cited in the majority opinion, this Court reincarnated the writ of error coram nobis in South Dakota. However, Justice Wollman, writing for the majority, expressed:
It will be the rare case indeed in which coram nobis will be recognized as the appropriate remedy. It will not be countenanced as merely another avenue of appeal, but will be limited to those cases, such as the one before us, when its application is necessary to remedy what would otherwise be a profound injustice.
Brockmueller, 374 N.W.2d at 139. Nilles, petitioner, was given a transfer hearing. He was transferred from juvenile court to criminal court after evidence was takeii. Circuit Judge Tapken’s Order explicitly reflects that a transfer hearing took place. Evidence in the coram nobis court overwhelmingly substantiates Judge Tapken’s statement in his Order concerning the reali*119ty of a transfer hearing. Records in this state may be reconstructed unless a specific error or prejudice resulting from the failure to record and/or preserve records of the trial proceedings is demonstrated. State v. Dupris, 373 N.W.2d 446 (S.D.1985). Therefore, there was a reconstruction here to ensure that Judge Tapken’s written order truly reflected that this juvenile had a transfer hearing. The formality of entering findings of fact was not accomplished; however, although this is an error, it is not such an error that it rises to the level by which the writ of error coram nobis should be granted. We are not dealing with an invalid conviction; rather, we are dealing with an invalid procedure to the extent that the procedure was not recorded by expression on the printed page. Nilles, insofar as Judge Tapken’s order is concerned, did not appeal the merits of that order nor ever collaterally attack same by appellate review. In other words, the merits of the transfer have not been attacked by Nilles as being wrongful. Hence, I cannot accept the proposition that in this case an ancient writ, now reincarnated in South Dakota, lie for a profound injustice.
Lastly, certainly there must be, other than the “profound injustice” generic consideration, a certain foundation for invoking this ancient writ. There is no error of irregularity or invalidity, in this case, suggesting that, if known at the time of trial by the trial court, rendition of the judgment would have been prevented. See People v. Shipman, 62 Cal.2d 226, 42 Cal.Rptr. 1, 397 P.2d 993 (1965). One further requirement for the issuance of the writ of coram nobis is that the error must not be put in issue at trial or passed upon by the trial court. Spaulding v. United States, 155 F.2d 919 (6th Cir.1946). See Brockmueller, 374 N.W.2d at 139 (Henderson, J., specially concurring) (where a collection of cases on this prerequisite is found). Surely, the trial court passed upon all those considerations vital to a transfer hearing. Coram nobis cannot be invoked to simply relitigate the original case. It is not an instrument of appeal. 49 C.J.S. Judgments § 312, at 563 (1947). It is for these reasons I specially concur and not for the reason that petitioner Nilles entered a plea of guilty to the crime charged. My understanding of Brockmueller is that simply because a defendant has been convicted that this does not act as an impediment to bringing the ancient writ. Buttressing this statement, I allude to State ex rel. Lopez v. Killigrew, 202 Ind. 397, 174 N.E. 808, 74 A.L.R. 631 (1931), also cited in my special concurrence in Brockmueller, 374 N.W.2d at 140. It might well be that it is highly improper for a felony conviction to stand when it is based upon a void conviction, exactly as encompassed within Brockmueller, 374 N.W.2d at 138-39.