Folsom v. Conner

49 Vt. 4 | Vt. | 1876

The opinion of the court was delivered by

Barrett, J.

When the suit before the justice was brought against this complainant, he had ceased to be a resident of the state, and had no place of abode, and no known agent, within it, in the sense of the law as to the service of process ; and had no agent of any kind, for any purpose, except that he had specially authorized his son to let Durgin take a certain wagon and harness, if he would receive them in full satisfaction of the debt which this plaintiff-owed him, it being the debt on which the judgment now in. question was grounded. Durgin would not so receive said property, and that ended' the son’s agency for any purpose. This plaintiff, therefore, was not bound or affected by anything the son did, as set forth in the exceptions.

As this writ is brought for the purpose of attacking and vacating said judgment because the acts done in procuring it did not render this plaintiff amenable to the justice’s court, nor affect him by the proceedings and judgment, the record of that court does not conclude him against showing what and all that took place tending to render such proceedings and judgment invalid and ineffectual against the subject of it.

Counsel, in some remarks, intimated that that record had the same office and effect in this case as it would have in an action of debt or. seire facias upon the judgment. In the latter case, the record cannot be impeached or questioned. The object of this proceeding is to question, and invalidate, and annul the record.

The facts proved show that no such service was made 'by attachment and the leaving of copy, as is required by the statute, in order to put the suit on foot so as to place this plaintiff in any subjection to the proceeding in any stage or event of it. This would be conclusive in behalf of the plaintiff upon this complaint.

But if that defect should be passed, there was no compliance with the statute.requiring a recognizance for review to be entered before the issuing of execution. The case shows that execution was issued, and that plaintiff’s property was levied upon and sold by virtue of it. This gives cause for this audita querela. Alexander v. Abbott, 21 Vt. 476 ; Whitney et al. v. Silver, 22 Vt. 634.

As to the sufficiency of the notice for the taking of the deposition, the finding of the County Court upon the proofs is conclusive. - '

Judgment affirmed.