37 Vt. 156 | Vt. | 1864
The defence in this case is made by the subsequent attaching creditor.
The statute authorizes a' subsequent attaching creditor to appear in
It has heretofore been decided that a subsequent attaching creditor thus appearing is confined to defences to the merits, and that he cannot plead in abatement, or make other dilatory objection to the action.
In the case of Fletcher v. Bennett, 36 Vt. 659, the court had occasion to consider the extent of the right of such creditor to make defence to the prior action, and it was held that he stood in the first place in the right of the debtor himself, and could interpose any defence to the merits that the debtor himself might; and secondly, that he might set up his right as a creditor, and show that the prior debt was collusive or fraudulent between the creditor and debtor, and therefore invalid as to himself or other creditors, although the debtor himself might not be able to make such defence. In either view was the evidence offered by the subsequent attaching creditor in this case admissible ?
In the first place, would it have been admissible if offered by the debtor himself?
The record of the judgment recited that the defendant personally appeared before the justice and confessed himself indebted, &c. The evidence offered was that he never did appear in person and make such confession ; a direct denial and contradiction of the fact stated in the record.
It has repeatedly been held in this state that the records of justices of the peace are entitled to the same degree of credit and legal verity, as those of courts of more extensive jurisdiction, and cannot be impeached or counteracted by proof of their falsity.
This general proposition is not denied, but it is claimed that the evidence offered was to show that the justice had no legal jurisdiction to render such judgment, and that evidence is always admissible, to show that the court had no jurisdiction, and in that way overthrow the judgment of any court. It is often said in the books, that if the court have no legal jurisdiction their judgment is void, and that evidence may always be received to show such want of jurisdiction. To a certain extent this is true, but not to the extent to which we are asked to go in this case.
In Spalding v. Chamberlin, 12 Vt. 538, the plaintiff had been ousted on an execution in favor of the defendant, for which he brought an action for trespass and false imprisonment. The plaintiff sought to invalidate the judgment on which the execution issued, by showing that when the writ issued and was served, it was not signed by the justice who rendered the judgment, but by another, and that sub* sequently the name of the justice was erased, and it was signed by the justice who rendered the judgment. If these facts were true, then it was clear that the justice who rendered the judgment, had no rightful jurisdiction of the process, or to render a judgment thereon; but the evidence to show this was rejected on the ground that it contradicted the record, which recited that a writ was issued signed by the justice by whom the judgment was rendered.
So in Beech v. Rich, 13 Vt. 595, in an action of debt on a recognizance, the defendant offered to prove that he never appeared before the judge and entered into such recognizance, and that it was made without the knowledge or consent of the defendant. But the evidence was rejected on 'the ground that the record was conclusive and could not be impeached by evidence.
There is more analogy between the case of a recognizance and a judgment by confession, than between a confession judgment and one rendered in the ordinary way in an action pending between the parties.
It is claimed that the justice could have no legal jurisdiction to render a judgment by confession, unless the party appeared in person to make such confession, and we are not now disposed to think that he could, as was intimated in the case of Shedd et al. v. Bank of Brattleboro, 32 Vt. 709.
But the same is also true of a confession of a conditional indebtedness by way of recognizance, that if it was done without the knowledge or consent of the recognizor, it would be without lawful jurisdiction, and would be void.
In Barnard v. Flanders, 12 Vt. 657, the defendant was sued for an alleged misconduct as a justice of the peace, and his record Was held not only admissible, but conclusive, in his own favor, and that evidence was not admissible to contradict it.
In view of the principles established by the cases already cited, and many others of the same character in our reports, we deem it clear that the evidence offered was not admissible for the purpose of establishing any defence against the plaintiff’s judgment so far as the defendant is concerned, nor by the subsequent attaching creditor as standing in the place of the defendant and asserting his right.
' It was not claimed, nor was there any offer to prove, that the plaintiff had not a valid debt or claim against the defendant to the full extent of the judgment confessed, nor that it was done with any fraudulent purpose or design to create a claim to cover the defendant’s property to keep it away from the creditor who defends this suit, or any other of the defendant’s creditors. Standing upon his own peculiar right as a creditor, he has therefore no valid objection to to make, and if there were any technical irregularity in the plaintiff’s-judgment, not affecting the real existence and validity of the debt, it would not avail.
Judgment affirmed.