Finney v. Hill

13 Vt. 255 | Vt. | 1841

The opinion of the court was delivered by

Collamer, J.

When the objects, purposes and effect of audita querela are considered, it becomes quite obvious why it should be confined to its legitimate causes. It does not, like a proceeding in error, or a proceeding for a new trial, correct only the illegal part, preserving the original cause and proceeding with it to a just and final result. When sustained, it puts the defendant, and his original cause, out of Court, and renders damages against him. Clearly, then, it should be confined to matters transpiring subsequently to the former judgment, and showing that the defendant is making an illegal and oppressive use of final process, for which he-should pay damages for his own improper act; or it should be a proceeding with final process, founded on a pretended judgment of court, where, in "fact, the party, against whom it issued, never had notice.

In this case, the present plaintiff had legal notice of the action against him. .The judgment was rendered by a court of competent jurisdiction. That judgment has not been paid nor reversed. The present defendant is legally pursuing final process on that judgment.

If the present plaintiff is suffering any injury, it is entirely an injury arising from the incompetency or inattention of the agent he sent to attend to his cause and enter an appeal. Though it has been said the law furnishes a remedy for every injury, this, I believe, has never been considered as extending to self inflicted injuries. It certainly can be no reason why this defendant should have his cause thrown out of court, and he be visited with damages.

Judgment affirmed*