¶1 Concurring Opinion.
¶2 concurring in result — The writ of error coram nobis is based upon the record which is before the court, and, in passing upon the petition for the writ, consideration is given to so much of the record as is involved in the petition. While it has been said that the petition is in the nature of a civil action, in strictness, it is but a motion, addressed to the court that has the record, seeking to set aside the judgment. Where new evidence is relied upon, the office of the motion is to bring forward evidence, which, considered in the light of the evidence developed at the trial, which is also before the court, presents the question as to whether or not the judgment should be set aside. It is clear therefore that a demurrer addressed to the motion or petition has the effect only of admitting that the evidence set *442 out in the petition can be produced, and it should be considered, together with all of the other evidence, in determining the question. Upon this appeal, and by the briefs, only the petition is brought before this court. The petition alone presents no sufficient basis for a determination of whether the trial court abused its discretion in entering judgment denying the writ. It is true that the record, containing the evidence adduced at the trial of the case upon the merits, is in the files of this court, having been brought here by an appeal, and the court has knowledge of the facts in that record by reason of having passed upon that appeal, and, in view of all of the facts in that record and in the petition for the writ, it does not appear that there was an abuse of discretion. But the court was not required to search the record on the former appeal, since the facts there disclosed are not brought to the attention of the court by the briefs in this appeal. It must be assumed that, when the so-called demurrer to the petition was filed, the trial court treated it as admitting facts alleged in the petition, and as asserting that those facts, and the facts disclosed by the record on the trial, all being true, there was no sufficient basis in fact for setting aside the judgment, and that, in sustaining the demurrer, the court so found.