Calloway v. Nifong

1 Mo. 223

Opinion

Cook, J.,

delivered the opinion of the Court.

In this case, Nifong received judgment in the Madison Circuit Court, in an action of debt against Calloway and John McCabe; to reverse which judgment, Calloway brought his writ of error, and assigned error in fact, that his co-defendant died before judgment, to which, the defendant in error, pleads “ in millo est erratum,;” and the only question for the consideration of this Court, is, whether the error complained of, is one which this Court can correct? According to the established course of the common law, error in fact, can only be corrected in the Court where it accrued, or in which the record is: (5 Com’s. Dig. 695; 1 Stra. Rep. 606; 2 Bac. Abr. 216, Civil Edition.) In this case, the remedy must he by writ of error, coram nobis, in the Circuit Court, the record being in that Court.

The writ of error must be dismissed, with costs.