#### Reid’s Adm’r v. Strider’s Adm’r.

April Term, 1850,

Richmond,

i. Court of Appeals—Writ of Error Coram Vobls.*—A writ of error *coramnoiis*does not lie in the Supreme court of appeals.

*402. Same—Cause Pending in—Death of Party—Effect.†— Where a party to a cause pending in the Supreme court of appeals dies pending the appeal, it is not necessary to revive the cause in the name of his representative; but the case may be revived when it goes back to the Court below.

This was a motion upon notice by Hunter, administrator of Reid, to set aside a decree of this Court made at the April term 1845. The case is .reported in 2 Grattan 34. The ground of the motion was, that before the case was argued or decided, the appellee Strider had died. It appeared that Strider died in March 1845; and that the cause was argued in April and decided in May of that year, without a revival of the suit against his administrator, or a suggestion of his death upon the record.

*G. N. Johnson, for the motion.

The proceeding by notice, on motion, has in practice been substituted for a writ of error coram vobis. Eubank v. Ralls, 4 Leigh 308. But if the Court shall be of opinion that the proceeding should be by the writ, then this motion may be considered as an application for the writ.

On the merits. Strider and Reid’s adm’r were the only parties to the appeal. Both were therefore necessary parties; because at common law the death of either party abates the suit. 3 Bl. Com. 302; and this law is only so far modified by statute as to authorize a revival by scire facias; but not to'authorize a Court to make a decree when there are no parties. The statutes which authorize a revival of a suit, shew that the revival is necessary. Indeed, so necessary is it that there shall be the proper parties before the Court when the cause is decided, that if the Court has proceeded to decide the cause after the death of a party, this is an error of fact for which the common law gives the writ of error coram vobis.' Bank of Alexandria v. Patton, 1 Rob. R. 499; May v. State Bank of North Carolina, 2 Rob. R. 56. And our act of 1819, Sess. Acts 1819-20, p. 24, gives this writ.

The counsel on the other side may attempt to distinguish between cases in the inferior Courts and cases in this Court. But our statute gives the writ to this Court as.well as .to the inferior Courts. And as there is no restriction upon it in the statute, the extent of its use must be determined by the common law.

This writ is used by the Court of King’s bench, which is an appellate Court; and that Court uses it in cases of appeal. Why then should it not be used in this Court? The same evil exists here. Parties in this Court die as in other Courts. If it is said they are represented by counsel here, the same may be said of parties in other Courts. But there can be no counsel *of a dead man; and his representative is entitled to choose his own counsel.

Although there is no decision of this Court sustaining the use of the writ here, yet there are opinions of the Judges in favour of it. Stanard’s opinion in the Bank of Alexandria v. Patton, 1 Rob. R. 499; Baldwin’s opinion in May v. State Bank of North Carolina, 2 Rob. R. 56. The practice in this Court is not to hear a cause where a death in suggested until it is revived. And if the revival is not necessary, why has the statute given the writ of error coram vobis?

It ma3' be said that although the administrator of the deceased party may ask to set aside the decree, that the parts' who was alive at the hearing and was represented by counsel cannot. But we do not ask to set aside the decree as a matter of convenience but of law. And was it ever heard of that there could be a judgment which bound one party but did not bind the other. On this point, however, the authority is express and decisive. Bac. Abr. title Error, letter J. $ 6. And in Daniel v. Robinson, 1 Wash. 154, it was held that where one party is dead, the other party may consider the cause not ready for a hearing until there has been a scire facias to revive it.

Cooke, for Strider’s adm’r.

We are- willing to meet the case hypothetically as a petition for a writ of error coram vobis. This writ we say is inconsistent with the constitution of this Court. The fact that there is no precedent for it here, is conclusive against it. A writ in an inferior Court is intended not only to revive the case but to have it tried over again. The petitioner expects to be benefited by the new trial on which he may introduce new evidence. But no new evidence can be introduced in this Court.

Look to the class of cases in which this Court refuses to alter a decree once made though erroneous on *its face. Campbell v. Price, 3 Munf. 227; Towner v. Lane, 9 Leigh 262. In this last case there had been a vacation of but eight days, and yet this Court refused to alter the decree.

The counsel on the other side asks why may not this Court issue the writ as well *41as the Court of King’s bench, which is a Court of appeals. It is not feasible for this Supreme court to modify its rules of practice to accord with the practice of the King’s bench, which though an appellate is an inferior Court. It is dangerous to take up one point of practice and conform to it without considering the antecedents and succedents.

It is supposed by the counsel on the other side, that the act of 1819, Sess. Acts 1819-20, p. 24, gives this Court authority to use the writ of error coram vobis. The intent of that act was to facilitate the obtaining the writ where it was legally obtainable before. The draftsman of the act seems to have suppesed that this Court might issue the writ. In that he was mistaken, and the act does not authorize it.

*

Court of Appeals—Decree—Finality of.—It is now the well-settled law of this state, that the court of appeals cannot review the decision rendered at a *40former term. After its term lias closed, its adjudications, right or wrong, must stand irreversible and final, and the controversies between the parties whose rights have been adjudicated are closed forever. This doctrine has been firmly established by this court, in the case of *Beid v.*Strider, *7 Gratt. 76 ;*Griffin v. Cunningham, 80 Gratt. 50, 105. See, in accord, citing the principal case, Stuart v. Peyton, 97 Va. 813,34 S. E. Eep. 696 ; Hall v. Bank of Va., 15 *W.*Va. 330; Campbell v. Hughes, 12 W. Va. 211, approving the principal case to somewhat the same point. See monographic *note*on “Decrees” appended to Evans v. Spurgin, 11 Gratt. 615; also, *note*to principal case in 54 Am. Dec. 120.

†

Pleading —Parties—Death Pending Appeal.—If a party dies during the pendency of an appeal or writ of error, the court may proceed to judgment or decree, in certain cases under section 3307 of the Code, as if such death had not occurred. Booth v. Dotson, 93 Va. 237, 24 S. E. Eep. 935, citing the principal case. See also. Buckner v. Blair, 2 Munf. 336 ; Bank of Alexandria v. Patton, 1 Eob. 499. But see Eider v. Union Factory, 7 Leigh 154.

BALDWIN, J.

The case presented for our consideration is briefly this: Reid, the owner of a negro boy, on which he had given a deed of trust, agreed with Strider to place him in his possession till the 1st of January 1834, when Reid was to refund the money secured by the trust deed, (which Strider undertook to discharge,) and take back the boy, or receive the balance he should then be worth at a fair valuation, and make a good title for him. Reid failed to perform the condition, and afterwards his administrator brought a suit in equity to redeem the slave, upon the allegation that the transaction was a mortgage; and it was so held by the Circuit court. Reid’s administrator was therefore charged with the money advanced, with interest from the 1st of January 1834, and credited by the hires: and a small balance being found in his favour, Strider *was decreed to pay it, and to deliver the slave. From this decree Strider appealed, and this Court, in May 1845, held the contract to be not a mortgage, but a conditional sale, and the sale not having been abrogated, by performance of the condition, that he became Strider’s property, without accountability for hires. The decree of the Circuit court was therefore reversed, and Strider decreed to pay the balance of the value of the boy on the 1st of January 1834, after deducting the money advanced, with interest from that date. See Reid’s adm’r v. Strider, 2 Graft. 34. And now, nearly five years after the decree of this Court, a motion is made here, either to set it aside, or to award a writ of error coram vobis; on the ground that at the time of its rendition, Strider had died, to wit, in the month of March previously, and consequently, that the case was prematurely and irregularly heard, inasmuch as Strider’s death ought to have been suggested, and the appeal revived against his representative.

I need not consider how far this Court may amend its judgments and decrees, at a subsequent term, by correcting clerical misprisions in the entries thereof, the question here being of a quite different nature. We are called upon not to amend, but to reverse, annul, or set aside the decree, in order that the appeal may be replaced upon our docket, and heard de novo upon its merits, after a revival thereof against Strider’s representative; and this, too, upon the application of the adverse party, who might have had the death suggested, and process of revival issued, before the hearing was had in this Court.

It is not the province of this Court to exercise appellate jurisdiction over its own adjudication, and it has no process adapted to such a purpose. It has no power to award writs of error to its own judgments, or allow appeals from, or bills of review to, its own decrees, for any error of law or of fact appearing upon the face of *its records. Nor can it, for errors of fact not apparent upon its records, grant writs of error coram vobis, or entertain bills of review. It is the appellate forum in the last resort, for the revisal of the judgments and decrees of subordinate tribunals, which it may affirm or reverse, with power in case of reversal, to render such adjudication as the inferior Court ought to have rendered. During the same term, its decisions, like those of other Courts of record, are within its own breast, and may be modified or rescinded as a more matured consideration may dictate; but after the end of the term, the merits of its adjudications have passed beyond its control. This finality and irreversibility of the judgments and decrees of this Court is inherent in the very nature and constitution of the tribunal, and cannot be disturbed without deranging the administration of justice, and the introduction of intolerable evils in practice.

This Court occupies the like supreme and ultimate position in our judicial system that the House of Lords does in that of England. And in the House of Lords a writ of error coram vobis does not lie for error in fact; for which two reasons are assigned, one technical, and the other politic: the first is that the record itself is not removed thither, but only the transcript thereof, as with us: the other is, that it is below the dignity of the House of Lords, that being the supreme judicature, to examine matters of fact; the substantial meaning of which I take to be, that to do so, would be foreign to the nature and purposes of that tribunal. See 2 Tidd’s Pract. 1057.

It is true, in relation to writs of error coram vobis, that by the act of the 24th of February 1820, Sess. Acts of 1819-20, it is provided, ‘ ‘that writs of error coram vobis, and all other writs of error, may be awarded in vacation, by any Judge of the Court, of appeals, or General court, or any Superior court of law, or by any *two justices of a County or Corporation court, in the same manner and upon the same conditions, as may be awarded bjr the same Courts respectively in term time; and that every such writ issued in pursuance of this act shall operate as a supersedeas. ” But this act was not designed to enlarge the powers of the Courts therein mentioned, *42but only to extend certain then existing powers thereof in term time to Judges thereof respectively in vacation; and must be construed rendendo singula singulis, by referring the comprehensive terms, which in the aggregate embrace writs of error of every description, distributively to the appropriate writs of error, of which the respective Courts already had cognizance.

The remedy therefore, for the supposed error or irregularity, by writ of error coram vobis, would be wholly unwarranted, and moreover utterly inappropriate, it being merely a common law writ, and unheard of in chancery proceedings.

And if we look to a bill of review, it is obvious that in a Supreme court merely appellate, there is no room for its cognizance, the only tribunal in which such a proceeding can originate, being the subordinate Court where the original decree was rendered: and even there jurisdiction of it is taken away by an appellate decree of this Court, after'which a bill of review lies only on the ground of the discovery of new matter affecting the merits of the controversy. Campbell v. Price, &c., 3 Munf. 227. And matter of abatement is not capable of being shewn by bill of review, as error to reverse a decree. 3 Dan. Chan. Pract. 1728, n; Story’s Eq. Plead. § 411; Mitf. Eq. Pl. by Jery. 85.

If this Court has no process by which to reverse or annul its judgments and decrees of former terms upon the merits, still less can it do so for mere irregularities, and far less by the informal and summary proceeding by motion. Indeed, a final judgment or decree of any *Court of record cannot, without the authority of some statute, be rescinded or amended after the expiration of the term at which it was rendered. 3 Chit. Bl. 407; Bank of Virginia v. Craig, 6 Leigh 399. In the case just cited, this Court unanimously overruled a motion for a rehearing, on the ground, “that it could not set aside its decree entered at a former term, whether it was prematurely decided, or whether it was objectionable on the merits or not.”

With that decision, the case of Wynn v. Wyatt’s adm’r, 11 Leigh 584, cannot be regarded as in conflict. There, it is true, a judgment of this Court of one term was, at the next term thereafter, set aside and a rehearing directed; but the reporter suggests that the motion for it had been made at the previous term, and held under advisement. That this was so, may be inferred from the fact, that no question seems to have been made as to the power of the Court to re-examine its judgment of a former term; a question too grave to have been disregarded, especiahy after the solemn decision upon that point in the Bank of Virginia v. Craig. And this inference is strengthened by an order of the Court after the allowance of the rehearing, stating that before it was granted, the transcript of the judgment had been improvidently certified to the Court below, and therefore recalling the same.

What I have said is based upon the hypothesis, that there is error or irregularity in fact in the failure to suggest the death of the appellant Strider, and proceeding to the appellate hearing and decree, without a revival of the appeal against his representative ; but I am far from entertaining that opinion.

At common law, actions abated by the death of the plaintiff or defendant, and were incapable of revival, though originally maintainable for or against the representative of the deceased. A suit in equity also abated by the death of either party; but, if originally maintainable *for or against the representative of the deceased, could always1 be revived by bill of revivor, and now'by statute may be revived by scire facias, 1 Rev. Code p. 497. The English statutes, and ours conforming to them, and extended to suits in equity, which authorize revival by scire facias, have no application to writs of error or appeals. These never abated by the death of either party, (with one exception,) for the reason, I presume, that there is no abatement of the original judgment or decree, and the reversal or affirmance thereof is the only matter involved in the appellate cause. The exception is in the case of the death of the plaintiff in error, before his assignment of errors, which probably rests upon the ground that the proceeding has not been perfected, and there must be a new writ of error. This exception prevails in the English practice, the assignment of errors being made there after the writ of error has been sued out, and is in the nature of a declaration, upon which an issue is made up usually by the plea of in nullo est erratum, which is in the nature of a demurrer. It is unknown, however, in our practice, where there are no pleadings in error, unless of a release or the like, and the death of the plaintiff cannot occur before the assignment of errors, which is always made in the petition for the.writ.

According to the English practice, if the plaintiff in error dies after the assignment of errors, or the defendant in error dies, whether before or after such assignment, the case proceeds in the names of the original parties to hearing and judgment, and the original judgment, if affirmed, is revived in the Court below by scire facias. 2 Tidd’s Pract. 1091. In equity, an appeal to the House of Bords is prayed for by petition to the House, and allowed by its order; to which petition an answer is put in, denying error in the decree and praying its affirmance; upon which issue, or an order of the House in case of default, the appeal is appointed *to be heard. If either party dies before hearing, the appeal is revived, upon petition, in the name of the representative of the deceased. 3 Daniel’s Ch. Pract. 1634, &c.

With us, writs of error or supersedeas and appeals, allowed by this Court, or a Judge thereof in vacation, are prayed for by petition, in which the errors complained of are assigned or set forth; and process is issued *43and served upon the adverse party, and a hearing is had after appearance by counsel, or in case of default; without appellate pleadings unless of some extrinsic matter in bar.

And though there is no abatement of appellate causes in this Court, whether of law or equity, and our statutes for revival of actions or suits have no application to them ; yet a practice prevails here, probably borrowed in substance from that of the English House of Lords, in equity, requiring in case of the death of either party a revival of the appeal or writ of error by consent or by scire facias. Bank of Alexandria v. Patton, 1 Rob. R. 499. It is, however, a general rule of convenience and policy, applicable only where the death of the party is made *known to*the Court and suggested on its record; and there may be circumstances under which the suggestion itself will not be permitted by the Court. And if the appellate cause passes through this Court without such suggestion, there is no ground for the imputation of error or irregularity in the proceedings here; and the judgment or decree of this Court is remitted to the Court below, and entered upon the record there, and a revival then had there of the original judgment or decree in case of affirmance, or of that of this Court in case of reversal.

I think the motion made by Reid’s adm’r ought to be overruled. To sustain it would introduce a practice fraught with incalculable mischief. Hundreds of causes pass through this Court without information on the *part of the Court, or of the counsel concerned, of deaths of parties; and much of our time would be most unprofitably employed, and to the great detriment of suitors, in setting aside our own adjudications, rendered upon mature consideration of the merits, for supposed irregularity in the proceedings.

CABELL, P., and ALLEN and DANIEL, Js., concurred in the opinion of Baldwin, J.

BROOKE, J., concurred in the judgment.

Motion overruled with costs.