2 Aik. 249 | Vt. | 1827
The opinion of the Court was delivered by
The horse for which this action was brought, was taken by the defendants, under an execution, issued on a judgment recovered in a suit against the plaintiff, by the selectmen of Acton. It was objected on the trial, and is now insisted, that the judgment and execution were irregular and void, and afforded no justification to the defendants.
It is unnecessary to give any opinion, whether the action in which the judgment was recovered against the plaintiff, could have been properly maintained in the name of the selectmen, or should have been brought in the name of the town; because it is very clear, that the question could not be raised in this case. Admitting that the action should have been brought in the name of the town, and that the selectmen could not maintain it, the proceedings are merely erroneous, and not void. The judgment, while it remains in force and unreversed, is conclusive upon the parties, and its merits cannot be overhauled, nor can it be impeached, in this collateral way.
It is equally unnecessary to determine, whether the nature and purpose of the action against the plaintiff were such, as to ¡require a minute in writing on the original writ, under the official signature of the Justice, of the day, month and year, when the writ was presented to, and signed by him. We are inclined to think, that such minute was not requisite, but it is quite unnecessary to enter at all into that question. The execution issued against the plaintiff was warranted by the judgment, and unless that was ipso facto void, and a nullity ah initio, the execution affords a good justification to the defendants. The statute which is relied upon, declares, that every original writ, issued in the cases therein mentioned, in which a minute is not made and signed as therein required, shall be void. The statute does not, in terms, extend to the judgment, which may be rendered in the suit commenced by such writ; but it is argued, that as the writ is made void, the judgment, and all the proceedings consequent upon it, must be void also. It would certainly be going great lengths to hold, that the party, after judgment is rendered against him in such case, may treat the judgment as a
Judgment for the defendants affirmed.