David v. Leslie

14 Iowa 84

• Court: Supreme Court of Iowa
• Decided: October 17, 1862
• Status: Published

Opinion

Wright, J.

The appropriateness of the writ of error coram nobis in an equity proceeding is not discussed by counsel. Indeed, they treat it throughout as performing all the offices of a writ of error, bill of review, bill in the nature of a bill of review, certiorari, writ of attaint, or a proceeding to obtain a new trial, under either of the subdivisions of § 3499 of the Revision. Following the same course, without sanctioning the practice, we can conceive no ground upon which the order below can. be disturbed. It only appears that after the eg,use had been submitted to be considered in vacation upon written arguments, it was on the same day heard and determined in term time. The presumption is that the latter submission was by agreement of parties. The record does not rebut this presumption. Nor throughout the petition is it suggested that there was any mistake in this respect. The point relied on is, that the “ record discloses material errors in fact.” The assumption is not sustained, and plaintiff is therefore left without a case.

Appellees insist that they are entitled to a decree for the full amount of their claim, and for damages, against plaintiff and his sureties, on the appeal bond. Assuming that in a proper case • this could be done, the difficulty in the present instance is, that the date, amount, or full nature of the original decree in the foreclosure action is not before •us in any authentic form. Under such circumstances, we could not make the order asked.

Affirmed.