23 Vt. 324 | Vt. | 1851
The opinion of the court was delivered by
This was an audita querela, to set aside an extent issued by a justice of the peace, pursuant to the statute authorizing
Ifr was said by the court, in Little v. Cook, 1 Aik. 363, “ that this writ is a remedial process, which bears solely upon the wrongful acts of the opposite party, and not upon the erroneous judgments, or acts, of the courts;” — And in Staniford v. Barry, 1 Aik. 321, “that although audita querela is authorized and. the form of the writ given by statute, yet the cases in which it will lie must be determined by the rules of the common law.” And it is laid down in Bacon’s Abridgment, “ that this process is a writ to be relieved against an unjust judgment, or execution, setting them aside for some injustice of the party that obtained them, which could not be pleaded in bar to the actions; for if it could be pleaded, it was the party’s own fault, and therefore he shall not be relieved, that proceedings may not be endless.”
It is conceded, however, that this action has been extended somewhat farther, than the principles laid down in the cases above referred to would seem to warrant. But it is believed to be well settled, that when the party has had a legal opportunity to avail himself of the matters of defence set forth in his complaint, or where the injury, of which he complains, is attributable to his own neglect, he is not entitled to relief by this process. Testing the case before us by these rules, has the plaintiff alledged- any ground of complaint, which can be redressed by audita querela.
He was not deprived of h'is day in court. He was notified and appeared before the magistrate and had an opportunity to offer the several matters of defence set forth in his complaint; and if he failed to do it, it is the fault of the party. Whether the plaintiff was legally notified of the proceedings before the justice, whether there was a legal grand list, and whether there was a legal rate bill and warrant committed to the plaintiff for collection, were all proper subjects of inquiry and adjudication by the magistrate. The case was clearly within his jurisdiction; and if in deciding these questions the justice
But it is claimed, that the denial of an appeal by the justice is sufficient to sustain this process. Assuming that the plaintiff was by law entitled to an appeal, it follows, that this claim is well founded. For it has several times been held by this court, that the party aggrieved by the denial of an appeal by a justice of the peace, when he was entitled to the same, may be relived by audita querela. But we are all well satisfied, that the plaintiff was not entitled to an appeal. The general provision in the justice act, allowing appeals in all cases cognizable before justices of the peace, must, we think, be limited and confined to causes falling within the ordinary jurisdiction of justices, and cannot be extended to cases arising under a special and extraordinary jurisdiction, with which they may be invested.
By a special statutory provision two justices are impowered to inquire into the settlement of paupers, and to make orders for their removal; and the statute specially provides, in such cases, for an appeal. But for this special provision, it is believed, that an appeal cannot be claimed. If the general provision in the justice act, allowing appeals, is applicable to orders of removal in pauper cases, the special provision made for appeals in those cases is superfluous. The provision in the statute, authorizing the issuing of extents against delinquent collectors, was evidently designed to furnish a summary remedy for those cases. It is a delegation of special and extraordinary powers to justices of the peace, from the exercise of which no appeal lies. If, however, error intervenes and injustice is done, the party aggrieved is not without a remedy.
The judgment of the county court.is affirmed.
