Harriman v. Swift , 31 Vt. 385 ( 1858 )

Barrett, J.

The audita querela in this case is brought on the ground, in one count, that the plaintiff was unjustly, through the fraudulent practices of the defendant, denied an appeal justice of the peace, by whom judgment was rendered in favor of this defendant against this plaintiff, and in the second count, that through the fraudulent practices of the defendant, the justice was induced to, and did improperly allow, in the taxation of costs, for the travel and attendance of one witness, and said improper allowance was embraced in the judgment for costs rendered in favor of this defendant against this plaintiff.

It sets forth that an execution has been issued on said judgment for damages and costs, and the officer is proceeding to collect the same, by levying it on the plaintiff’s property.

The object of it is to have the judgment vacated and the execution superseded.

The cause was referred by the county court, and, upon the facts reported, the county court rendered judgment for the plaintiff, to which the defendant excepted ; and the ease is now before us on that report for revision.

It is, perhaps, too late now to question the propriety of this writ for relief, where an appeal has been improperly denied by a justice of the peace, notwithstanding the existing statutory provision for relief in such a case. Yet it may be proper to remark, if the question were res integra, in view of the existing statute, we should have no difficulty in holding that the statutory proceeding was alone available'in such a case. For present purposes, it is needless to pursue a discussion of the subject, or to suggest any change in the course of adjudication on the subject in this State,

The question under the first count is, does the report show that the justice improperly denied the appeal? If so, it is of no importance whether it was done through the fraudulent procurement of the defendant, or through the unbiased judgment of the justice himself. It is obvious to remark, however, that the report discloses nothing tending to show any act of the defendant or his counsel, bearing on the subject of the appeal in any -way. Whatever omission of duty there, may have been, seems to have been purely the act of the justice himself, uninfluenced by anything done or said by the defendant.

In order to impose the duty on the justice of allowing aq appeal, it is incumbent on the party wishing an appeal, to do what the law requires in order effectually to take an appeal. This case seems to stand on the question, whether in fact the plaintiff so offered bail before the justice, as to enable or entitle the justice to take the recognizance. On this point we are unable, from the facts reported, to find that he did. He may have supposed that he did all that was necessary in this behalf. But the report does not show that, within the two hours allowed by law, he produced or presented any man as bail, or' offered himself to the justice to become recognized. He told the justice that he would offer Dennison Densmore, and afterwards Densmore came into the room. But nothing was said to the justice, either by Densmore or the plaintiff, by way of offering to become recognized. It does not appear that the justice was in any fault in not interesting himself to make inquiry further about taking bail. It does not even appear that the justice knew that Densmore was in the room at all. In this view, it would be straining facts by implication beyond any reasonable warrant, to hold that the justice either denied or neglected to grant an appeal. We think, at most, that the case shows a lack, on the part of the plaintiff, of a due apprehension of what was necessary for him to do in order to cast the duty on the magistrate of allowing the appeal. Probably it was mere mistake, and might have been a very proper case for relief under the statute ; while it is entirely outside of the cases in which an audita querela has been sustained by the courts for a denial of an appeal.

To allow the writ in this case to prevail, would be as much of an infringement of the decision in the case of Spear v. Flint, 17 Vt. 497, as to deny it in a proper case, would be of the case of Tyler v. Lathrop, 5 Vt. 170.

A strong reason why the writ should not be upheld in such a case as this is, that it would avoid the judgment with all the incidental consequences of discharging'liens and securities by attachment, and subject the party defendant to the costs of this suit, entirely irrespective of the merits of his cause of action, and that too without any fault on his part.

As to the second count. It has long been held that a mere error in the taxation of costs is not a cause for vacating a judgment. And then, again, the case made hy the writ is clearly outside of any principle or precedent authorizing the writ of audita querela; Griswold v. Rutland, 23 Vt. 324.

The judgment is reversed, and judgment rendered for the defendant.