Sutton v. Tyrrell , 10 Vt. 87 ( 1838 )

The opinion of the Court was delivered by

Collameri, J.

This is an audita querela to set aside an execution and recover daipag.es, on the ground that there i? no judgment, or an •irregular judgment, on which such execu; tign issued; for this, that the complainants sent a person to, answer to the suit before the justice and appeal the same, whose authority to appear being objected to by the opposite side, on the ground that he was not an attorney of record, and presented no written power of attorney, his appearance was denied by said Justice, and a judgment rendered by default, on which execution issued. The writ of audita querela,whatfever "may have formerly been its use in this state, i? now con; fined almost to its common law limit?.. It is a writ to set aside an execution, for causes which arose after judgment, and tp recover damages of the opposite party, It did not, at com; xnon law, extend to the judgment! That, could be set aside only by a writ of error, which preseryed the cause, correcting the error. The writ here has, however, been holden to extend to those cases where the judgment has been rendered with; .out notice, or where the defendant has been prevented at; tending, by the fraudulent procurement of the plaintiff. In this case the record shows a regular notice of the suit before the Justice, a regular judgment by default, in a case within the jurisdiction of the Justice, remaining in full force, and ng event subsequently transpiring to vacate the same. This judgment cannot be set aside any more by audita querela than by an action on the case, for any error of law or fact. As damages are to bo given against the party, the audita querela must be for some illegal or fraudulent act of the party. No judgment of the Court on any question’ of law or fact, on which it was the duty of the Court to pass, can be revised by audita querela. When the person appeared before the Justice to answer for the present plaintiff, it was undoubtedly the duty of the Justice, especially, if his authority to appear, was questioned, to decide that point. It is not to be endured that he must permit all men and any man to appear. Such a doctrine would be productive of consequences too disastrous to be contemplated. It was then the duty of Justice to decide. He did decide and it is nofnow important to inquire whether he decided correctly or not. Like the decision of the Justice, as to the damages, in the case of Dodge v. Hubhell, 1 Vt. R. 491, it cannot be revised in a proceeding to set aside the execution and so vacate the whole proceeding and give damages against the opposite party. We are not prepared to adopt the doctrine required in deciding for the complainants, that is, that, if a party takes a judgment, after legal notice, before a Court of competent jurisdiction, yet if error in law or in fact has intervened in the rendition of said judgment or in the decision of any interlocutory question therein, an action to vacate the whole and render a judgment for damages against the party who procured the proceedings can be sustained; even though he may have urged improper or unfounded objections, or arguments to the Court. This is a case of the first impression, and not a single authority or analagous case is produced to sustain it.

Judgment reversed,