On April 14, 1828, Nicholas Peay, Allen B. Lackland, Thomas W. Johnston, Joseph Henderson, and Robert Crittenden executed a promissory note for $235.89 to William Montgomery and David Miller. The note was payable on demand and carried a 10% per annum interest rate. Apparently, Miller and Montgomery demanded payment that very day and the defendants could not oblige. Thus, Montgomery and Miller filed suit on April 14, 1828, via their attorney Chester Ashley, in the Superior Court claiming damages of $200. According to the declaration, at least some portion of the trial occurred or was filed in Hempstead County. The defendants appeared in court in their proper persons, that is, without attorneys. They consented to judgment being entered against them upon their confession of the debt, and said the judgment against them should bear a 10% interest from that date until paid, on condition that Montgomery and Miller would give a stay of ten months. The case was submitted to the court and the court ordered that Miller and Montgomery recover of the defendants the full amount of $235.89 with interest from the date of judgment until paid at the rate of 10% per annum and their costs of suit. The execution of the judgment, however, was stayed for ten months.

Two weeks later, on April 28, the record book of the Territorial Superior Court indicates that at least two of the defendants, Nicholas Peay and Thomas W. Johnston, came to court and filed an error coram nobis. This is an unusual procedure in which the defendants inform an appellate court of facts not on the record despite their due diligence. Today it is considered an extraordinary remedy and is more often denied than approved. According to the modern Arkansas Supreme Court, it is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. There is a strong presumption in favor of the validity of the prior decision and the prior ruling is upheld unless a great injury or injustice would result. Due diligence requires that the defendants be unaware of the fact at the time of trial; that he could not have, even exercising due diligence, have presented the fact at trial; or upon discovering the fact after the judgment against him, did not delay in bringing the petition. According to the modern Arkansas Supreme Court, coram nobis relief is only available to address certain errors of the most fundamental nature falling within one of four categories: (1) insanity at time of trial; (2) coercion of guilty plea; (3) withholding of material evidence by prosecutor; or (4) a confession by third party occurring between conviction and appeal. (See Echols v. State, 125 S.W.3d 153 (Ark. 2003). In this case, the attorneys argued their sides and submitted the case to the court. The court took one day to consider the arguments and issued its ruling the next day. Peay and Johnston did not prevail. On April 29th, the court ordered that the proceedings be dismissed. Since no writ of error had issued in the case, the court ruled that the defendants in error – Miller and Montgomery – should have the benefit of their judgment against the plaintiffs in error in the original suit in this court.

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