Caouette v. Young

32 A. 157 | N.H. | 1891

The plea of nul tiel record merely puts in issue the existence of the record as stated. 1 Ch. Pl. 485. Under this plea to debt on a judgment, the plaintiff cannot recover, if, upon the production of the record, the judgment upon its face appears to be void; but he may recover if the judgment, though erroneous, is merely voidable, and has not been set aside or reversed. Bruce v. Cloutman, 45 N.H. 37.

The record in this case shows due and legal notice of the original suit to the principal debtor and the trustee; that neither of them appeared, and that both were defaulted; and that judgment was rendered for the full amount of the plaintiff's specification. Thus far the record discloses no error. Suffering himself to be defaulted was an admission by the trustee of his indebtedness to the debtor, and of his liability to be charged for the amount specified in the writ (Drew v. Towle, 27 N.H. 412, G. S., c. 230, s. 11), and if so charged, he would have no apparent ground of complaint, provided there was no defect or irregularity in the proceedings which would afford a sufficient cause for the reversal of the judgment.

The existence of such a defect is, however, disclosed by a further inspection of the record, which shows that while the ad damnum in the writ was for only thirteen dollars, the judgment rendered was for more than three times that amount. This afforded sufficient cause for the reversal of the judgment on error, but did not make it a nullity (Jarvis v. Brooks, 27 N.H. 37, 68); and as the judgment has not been reversed or set aside, it follows that the plaintiff is entitled to recover as the case now stands. Nevertheless, we think, upon the facts found at the hearing, that the case should be discharged and remanded to the trial term, and there be continued, to enable either party to have the original action brought forward in the police court for such proceedings in that court as justice may require; or, upon the refusal of that court to take action in the premises, that a writ of error, or some other process, may be issued by this court upon petition and notice.

The lapse of time which has intervened between the judgment and its attempted enforcement against the estate of the deceased trustee, who, it is found, "was a man of large property," is sufficient evidence of itself, if unexplained by the plaintiff, that a wrong has been committed which entitles the defendant to relief.

Case discharged.

SMITH, J., did not sit: the others concurred.