Amidon v. Aiken

28 Vt. 440 | Vt. | 1856

The opinion of the court was delivered by

Redeield, Ch. J.

No question is made, in the present case, but that if the proof is insufficient to sustain an action, the court were justified in directing the jury to find for the defendant, not* withstanding the plaintiff might have proved, substantially, all which he alleged in his declaration. By the English practice, the plaintiff, in such case, would be entitled to a verdict, and the defendant be left to his motion in arrest of judgment. But in this state, we have regarded it as resting in the discretion of the court, whether to take a verdict for the party, upon proof of a defective case, or to direct a verdict at ©nee for the defendant; Baxter v. Winooski Turnpike Co., 22 Vt. 114; Dyer v. Tilton, 23 Vt. 313.

In regard to the decision of the case upon the merits, we see no reason to question its soundness after the decision in Sutton v. Tyrrell, 10 Vt. 87. In that case it was held, that when the justice gave judgment against the defendant upon the ground that his agent, not being a sworn attorney, could not appear for him without a written power, it could not be remedied by this mode of procedure, the question being properly within the cognizance of such justice, and his decision being final, unless appealed from. But in the present case the justice allowed the appearance, and refused to continue the case, upon a false and foolish ground, perhaps.’ But as the question was obviously one within his exclusive jurisdiction, his decision is not subject to revision in this mode. The attempt to show fraud in the party, falls far short of what is required, to set aside a judgment, by bill in equity, or by audita querela. The representations of the plaintiff in the action that the defendant was feigning sickness to procure a delay, is not any different from ar-> guments we sometimes encounter in all courts upon similar motions. It was rather conjecture or speculation, than a false representation, for the justice could not have supposed he knew anything upon the subject. And the fact of his adopting and acting upon it, shows^ perhaps, his simplicity and weakness ; hut those are defects in judicial administration, which cannot he remedied by audita querelaCertainly,' that is a complaint of a character which the courts of law cannot entertain.

Judgment affirmed.