43 Vt. 238 | Vt. | 1870
The opinion of the court was delivered by
Tilton and Batchelder commenced and were prosecuting this suit without any authority from the plaintiff, the Essex Mining Company. The county court decided that Tilton and Batchelder did not stand in such relation as to authorize them to institute and control the suit in the name of the Essex Mining Company without the consent and .against the will of the company ; and on motion of the Essex Mining Company, allowed a non-suit to be entei'ed with costs. To this decision Tilton and Batchelder, claiming the right to prosecute this audita querela in the name of the Essex Mining Company, except. The correctness of this decision, as to which has the right to control the suit on the side of the plaintiff, is the only question involved in the case before us; the merits of the audita querela, or sufficiency of the causes alleged in the declaration, not being material to be considered, any farther than they incidentally may have a bearing on the question of right to control the suit. There is nothing in the declaration connecting Tilton and Batchelder with the subject matter of the audita querela, or showing- any right in them to
The parties to the judgment, execution and levy, sought to be vacated by the audita querela, have a right to have the same remain in force undisturbed, at least unless Tilton and Batchelder show a legal right to the property levied upon paramount to the right of Bullard, and also that in order to enable them to avail themselves of that right, it is necessary that the proceedings under which Bullard acquired his title be vacated and set aside by audita querela. It is claimed that the fact that Tilton and Batch-elder are subsequent attaching creditors as to the property levied on by Bullard, and have no other means of collecting their judgments, gives them the right to use the name of the Essex Mining Company in prosecuting the audita querela, and thereby to avail themselves of the alleged defect in Bullard’s judgment; that is, the want of a continuance and notice according to the provisions of the statute when defendant resides out of the state, and is not served personally with the writ. There are many errors and technical irregularities in the proceedings under a prior attachment, which the defendant in such proceedings may waive, or may
But it is insisted that the further fact which Tilton and Batch-elder offered to show,—that is, that Bullard agreed, before he made his attachment, that the attachment on his writ, and on Tilton’s and on Batchelder’s, should all stand on an equal footing, the property to respond to their several debts pro rata, and that upon this understanding he was employed to procure said attachments to be made, and that in fact he has taken the whole upon his own debt and refused to divide pro rata,—entitles them in the name of the Essex Mining Company to maintain this audits
Judgment affirmed.