Wilson v. Fleming , 16 Vt. 649 ( 1844 )

The opinion of the court was delivered by

Redfield, J.

We have no doubt that a trustee is so far a party to a judgment, rendered in that form of process, that, if a void execution issue against him, he may be relieved by audita querela. For some purposes the word “party,” in such actions, only includes the plaintiff and principal defendant; for others, it would, no doubt, include the trustee. It would involve the very last degree of absurdity, to suppose that any court could issue an execution, without any judgment whatever upon which to found it, and leave the party wholly remediless, by simply describing him as a trustee. It is enough, for the purposes of this redress, that the plaintiff in the audita querela is a party to the execution> against which he seeks redress.

There is one defect in tire execution, as appears on the face of the papers, which has always been considered sufficient ground for avoiding it. It mis-descri'bes the judgment, in regard to the sums. This has long been held sufficient to avoid a jail bond, even, after commitment. Sherwin v. Bliss, 4 Vt. 96. When the judgment is thus mis-described, "it is the same as if there was no judgment, upon which the subsequent proceedings rested; for in fact there is no such judgment as is recited.

It is very questionable, in my mind, whether the English practice of settling right, on motion, these mistakes of the clerks, without putting the parties to the expense of bringing writs of audita querela, and without avoiding the subsequent proceedings, would not have been by far the better practice. It is not a little singular, that, while these immaterial variances are regarded of so slight importance in Westminster Hall, in our own republican simplicity and straight-forwardness the courts are constantly perplexed in awarding bills of costs, — not debts, nor damages, — upon some frivolous variance, which no man but a lawyer could comprehend. But it is doubtless safer to err on that side than on the other. See Stanford v. Robinson, 42 E. C. L. 217.

Judgment affirmed.