Ball v. Sleeper

23 Vt. 573 | Vt. | 1851

The opinion of the court was delivered by

Redfield, J.

This is an audita querela, to set aside the judgment of a justice of the peace, rendered in an action of slander. The only good ground, which occurs to us, why it could be fairly urged, that this remedy ought not to be extended to such a case, is, that, the judgment being void upon the face of it, there is no necessity for a resort to any such remedy.

But we think, this should not preclude the party from this remedy. Here the party cannot apply to the court to supersede any execution upon the judgment, as might be well done in the higher courts. And as there is no necessity, under the existing law, of describing, in the execution, the particular form of the action, an execution might issue and be put into the hands of an officer, which, being valid upon its face, the officer might enforce, and which the party could not avoid, except by this remedy, which may as well be brought when the party is in danger of as well as actually in execution.

This point, in principle, was decided in the case of Hastings v. Webber, 2 Vt. 407, which was an action of covenant broken before a justice, and judgment for the plaintiff, and this court held the party might well sue his audita querela. That case must be regarded as a full authority for the present.

Judgment affirmed.