#### Johnson *v.*Straus Saddlery Co.

*Assumpsit.*

(Decided Nov. 14, 1911.

56 Suth. 755.)

1. *Judgment; Jurisdiction; City Courts; Error Corain Vobis.*— The Daw and Equity court of Mobile, and courts of like powers, have jurisdiction to issue the common-law-writ of error coram vobis to set aside judgments.

2. *Same; Petition Coram Vobis; Evidence.*— A petition for writ of error coram vobis to set aside a default judgment is only a pleading in the case and is not proof of the matters contained in it, although sworn to.

3. *Appeal and Error; Questions Beviewable; Presumptions.*— On an appeal from an order denying a petition for a writ of error coram *301vobis to set aside a judgment, where the record shows only that the petition was presented and refused, and does not show the presentation of affidavits or other evidence to support the petition, the action of the court in refusing the petition will not be disturbed on appeal for the reason that this court cannot determine whether the denial of the petition was erroneous or correct on the merits.

4. *Same.*— Error must be shown by the record and cannot be presumed on appeal; presumptions are only indulged to sustain the trial court, in the absence of evidence to the contrary.

Appeal from. Mobile Law and Equity Court.

Heard before Hon. Saeeold Berney.

Assumpsit by Strauss Saddlery Co. against C. Y, Johnson and others. There was judgment by default for the plaintiff and the defendant, C. Y. Johnson, filed a writ of error coram vobis to set aside the default judgment. From an order denying the writ the petitioner appeals.

Affirmed.

Hogan & Steel, for appellant.

The court had jurisdiction to grant the *writ.*— Holforcl *v.*Alemncler, 12 Ala. 280; 101 U. S. 110; 12 Peters 188; 11 Am. Rep. 29; 18 L. R.'A. 838; 23 Cyc. 885. Where infancy is shown the writ issues in all *cases.*— Highbee *v. Com-stock,*1 Denio 652; *BwaÁn v.*Hertt, 2 Howard Practice. Sections 1113, 2176 and 3259 are not applicable. When the writ is granted the effect is only to recaí the judg*ment.*— DeWitt *v.*Post, 11 Johns 160. The affidavit filed in the law and equity court of Mobile in support of said petition is made a part of the record in this court by the recitals of the judgment in said court refusing said *petition.*— Lee *v. Davis, et al.,*16 Ala. 516. The record shows that appellant was a minor at the time of filing said petition. The petition and the affidavit supporting it are a part of the record in this *court.*— Lee *v. Davis et ah,*16 Ala. 516; Encyclopedia of Pleading and Practice, Yol. 5, pp. 33-37. The appellee having joined in the assignment of error without objecting to the rec*302ord is bound thereby and will not be permitted to raise the question that the appellant is not an *infant.*— Wihn's *v. White,*26 Md. 380, 90 Am. Dec. 113; *Mobile Mutual Insurance Co. v. Cleveland,*76 Ala. 321. This court will not refuse to pass upon the 'merits of this appeal, when the same question may be brought before it again on a subsequent appeal in the same case. — Andrew’s Stephens on Pleading, p. 203. Courts of common law juris-' diction have authority to issue writs of error coram *vobis.*— Stewart *v. Nuchols,*15 Ala. 225; *Moore v. Easley,*18 Ala. 619.

McMillan & Grays'on, for appellee.

The court did not err in refusing to grant the petition of the plaintiff in error because there is nothing in the record showing that any evidence was adduced in support of the petition or tending to support said petition. — Section 2846 of the Code of Alabama of 1907; *Mobile v. Murphree,*96 Ala. 141; *Western Eaihuay of Ala. v. Wallace,*54 So. (Ala.) 533; *Dich&rson & Wayne v. Toulmin,*2 Stewart & Porter, 52. The act of the Legislature, creating the law and equity court of Mobile, expressly provides “That final judgments and decrees rendered in said court shall, after the expiration of thirty days from their rendition, be taken and deemed as completely beyond the control of the court, as if the term of said court at which said judgments or decrees are rendered, had ended at the end of said thirty days, etc.”General Acts.of Alabama of 1907, page 572, section 23. The judgment rendered was beyond the control of the court as thirty days had transpired after the rendition of said judgment. The court had no power or warrant in law for granting said writ. The petition which sought to recall or set aside the judgment fáiled to set out any facts which would warrant said court under section *3032256 of the Code of 1907 to grant the petition. Nor are we aware of any statute, under which said petition can be *supported.*— McLendon *v. Dardenn & Go.,*53 Ala. 67.

PELHAM, J.

Judgment by default was rendered in the court below against C. L. Johnson & Son, a partpership, and O, V. Johnson, the appellant, individually, at the suit of appellee, on the ',18th. day of January, 1910; and more than 30 days thereafter, when, under the act creating the law and equity court of Mobile (Acts 1907, p. 572, § 23), the judgment must be treated as if rendered at a prior term of the court, the appel-' lant, on, to wit, July 30, 1910, filed and presented a sworn statement to the court-, alleging that he was a minor at the time the said judgment was rendered against him and that no guardian ad litem had been appointed by the court to appear and defend in his interest on the trial of the case, and praying that a writ of error coram .vobis be granted, and the judgment as to him be set aside or recalled and held for naught. Appellant’s petition was refused, and he appeals, assigning as error the order of the court in refusing to grant the petition.

The right of courts in this state; of like jurisdiction to the law and equity court of Mobile, to issue the common-law writ of coram vobis has long been recognized *(Holford v. Alexander,*12 Ala. 280; 46 Am. Dec. 253; *Stewart v. Nuchols,*15 Ala. 231, 50 Am. Dec. 127), but whether or not the facts presented by the petition in this case make a proper showing for an issuance of the writ is a nice *question.*—Ingersoll *v. Wilson,*3 Johns. (N. Y.) 437. That question, however, is not before us on this appeal, and we are precluded from considering it, as the petition in this case is not shown by the record to have been demurred to, and the bill of exceptions *304fails to show any proof offered to sustain its allegations. The petition, although sworn to, is no more than a pleading in the case, and not proof of the matters set up in it, as contended by appellant.

The record proper and the bill of exceptions show only that the petition was presented to the court and refused, against the objection of petitioner, and an exception reserved to the- action of the court in refusing the petition. No affidavits or other evidence was offered in support of the allegations of the petition, and for anything appearing to the contrary, the petition may have been refused on the ground that the petitioner failed to prove the allegations of his petition. There is nothing to show upon what the judgment of the trial court was predicated, and no way for this court to determine whether the conclusion arrived at in denying the petition is correct or erroneous on the merits of the question intended to be presented. Error cannot be presumed, but must be shown, and this court cannot assume or infer the existence of facts not shown by the record to put the trial court in error; presumptions are only indulged, in the absence of evidence to the contrary, to sustain, and not to reverse, the primary court.*—So. Ry. Co. v. McGowan,*149 Ala. 440, 43 South. 378; *Dickerson & Wayne v. Toulmin,*2 Stew. & P. 52; *City of Mobile v. Murphree,*96 Ala. 141, 11 South. 201.

No error appearing, the judgment of the trial court in refusing the petition is affirmed.

Affirmed.