Writ Of Error "Coram Nobis"

hello all!


as per flecompte's post regarding the above, i started a little research.


my first stop was to ask my brother, an attorney/lawyer about it.& his response:<FONT size=2>


I do note, however, that coram nobis writs were abolished and superseded, at least in the federal system, by Federal Rule of Civil Procedure 60(b). Most state court rules track the federal rules nowadays so that may also be the case there, but I'm not exactly sure.


feedback, of course, is welcome.


i'll post more as i find it.


jon</FONT>

here's FRCP 60:
<P class=catchline><A name=Rule60></A><FONT size=4>Rule 60.& Relief from Judgment or Order</FONT>
<DIV class=statute>
<H4 class=Subrule><A name=Rule60_a_></A>(a) Clerical Mistakes.</H4>
<P class=Text-Level2>Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.
<H4 class=Subrule><A name=Rule60_b_></A>(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc.</H4>
<P class=Text-Level2>On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.& The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C., § 1655, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action. [emphasis added]
<P class=Text-Level2>if i understand this correctly, one needn't write a writ of error, but simply invoke FRCP 60(b), or the state equivalent, to achieve the same result...
<P class=Text-Level2>jon</DIV>

You should always translate your motions to local rules.& Just like the the Negative Avertment, <SPAN style="FONT-SIZE: 12pt; COLOR: black; FONT-FAMILY: 'Times New Roman'; mso-bidi-font-size: 10.0pt; mso-fareast-font-family: 'Times New Roman'; mso-ansi-language: EN-US; mso-fareast-language: EN-US; mso-bidi-language: AR-SA">FRCP 9(a).& A county court judge does not need to heed this.& But if you put down TRCP Rule 52, now the judge has to acknowledge it.</SPAN>


<SPAN style="FONT-SIZE: 12pt; COLOR: black; FONT-FAMILY: 'Times New Roman'; mso-bidi-font-size: 10.0pt; mso-fareast-font-family: 'Times New Roman'; mso-ansi-language: EN-US; mso-fareast-language: EN-US; mso-bidi-language: AR-SA">I can assure you Writ of Errors are in the Texas Rules of Civil Procedure.& The group I study with uses Writs very much to their advantage, especially with the IRS.</SPAN>

from the "Attorney's Pocket Dictionary":


<FONT face="Arial Narrow" color=#0000ff size=4>writ of error coram nobis

</FONT>A writ for the purpose of correcting a judgment in the same court on the ground of an error of fact, which was unknown when the judgment was pronounced and which, if known, would have prevented the judgment. Such a fact should not only have been unknown at the time of the judgment, but also should have been such that the party could not by the exercise of reasonable diligence come to know of it in time so that he may have presented the same to the court. Such a writ enabled the court to correct its own error.



jon

i am noticing that Writs of Error are very much in use...i saw an opinion rendered against one in 1998, and am still looking into it...


i will inform my legal beagle and see what his response is...


jon

Jon,


I am just trying to quantify your posts.& If my motion was abolished, I would have expected the opposing attorney to state this in an opposition to my motion, which no opposition was ever filed.&


I also asked a local attorney about this Writ, and one thing for sure he did not mention the abolishing of it.


FRCP 60, is what you are essentially using.& This was the rule I was translating into the Texas statutes for the equivalent.

attorney's don't know everything, albeit something like that i think they'd find readily...


i note that in my searching Missouri has abolished the Writ.


jon

i'm concluding my googling on "Writ of Error Coram Nobis" with the following findings of fact:


1.& The Writ can be used in many places (still) - check local codes for abolishment.& Missouri has abolished the Writ, and others may have as well.


2.& FRCP 60(b) can be used in place of the Writ where applicable.& as flecompte points out, check for local equivalents in order to "stick" the court to the code.


3.& What can be dredged up on Google is failures of the Writ in criminal cases where the petitioner is already incarcerated - in which case the Writ is not available to the petitioner according to the "rules."& Other failures as well.& i wonder if that is a trend in "publishing" opinions (e.g., show the failures first and little or no successes)...


flecompte, if you don't mind posting an example (sensitive information removed), i'd appreciate it - as long as you don't mind.


jon

This is the same definition out of lectric law, and what I used to base my motion off of.


I was denied my Judicial Due Process by the court giving Sum Jud at the admin. level.& Secondly, the attorney submitted a copy of the note and copies of monthly statements, which denied my rights under the FDCPA.& Lastly, the affidavit from the CC company employee failed to acknowledge that he has FIRST hand knowledge, he was competent to state the matters, of legal age, and not under duress.& This last problem falls right into the Texas Rules of Evidence for affidavits.& Plus the entire case was leveraged off of this affidavit, well I was also not allowed to cross examine this accuser.


This affidavit also stated that this credit card account was a "SWORN ACCOUNT".& WRONG!& Credit card accounts are not sworn accounts, so if you see this NAIL THEM!

Originally Posted by jmunson

from the "Attorney's Pocket Dictionary":


<FONT face="Arial Narrow" color=#0000ff size=4>writ of error coram nobis

</FONT>A writ for the purpose of correcting a judgment in the same court on the ground of an error of fact, which was unknown when the judgment was pronounced and which, if known, would have prevented the judgment. Such a fact should not only have been unknown at the time of the judgment, but also should have been such that the party could not by the exercise of reasonable diligence come to know of it in time so that he may have presented the same to the court. Such a writ enabled the court to correct its own error.



jon

so, then, let me ask this obvious question:


once you filed your Writ, what was the result?


jon