Kimball v. Town of Newport, 47 Vt. 38

Kimball v. Town of Newport

47 Vt. 38 | Vt. | 1874

Royce, J.

The plea in this case avers the obtaining of a judgment and the issuing of an execution upon it, under which the plaintiff was arrested and imprisoned. The proceedings all appear to have been legal in form and furnish a sufficient prima facie justification for the arrest and imprisonment complained of.

Tho plaintiff in his replication seeks to avoid the legal effect of the original judgment,, upon the ground that an agreement was *42entered into between him and the defendant, that he was to do notified of the time when the suit was to be tried ; that ho never received any such notice, and that in fact he had no notice of the time when the suit stood for trial and the judgment was obtained, and that at the time when the defendant instituted proceedings to revive the judgment by the action of scire facias, he was out oí the state, and had no personal knowledge of the same. The defendant demurred to the replication, and the question presented is, whether the existence of the facts alleged in the replication are sufficient in law to avoid the judgment and render the subsequent proceedings under it actionable.

If the judgment was only voidable, the defendant could justify under it; if void, the plaintiff might treat it as a nullity, and it would furnish no justification to those acting under it. In actions upon judgments, it is not necessary to the validity of the judgment under the plea of nul tiel record, to prove actual notice of the pendency of the suit. In Ellsworth v. Larnerd, 21 Vt. 535, Royce, Ch. J., says, that “ the want of actual notice to the defendant of the pendency of the suit, would not render the judgment void ” as in that case, his rights are otherwise secured and protected by statutory provisions.

The general rule is, that judgments which appear to have been regularly obtained, are conclusive upon parties and privies, and that they cannot be impeached in any collateral proceeding. If a party against whom such a judgment has been obtained would avoid it, it must be done by some proceeding instituted for that purpose, and in which an issue can be made upon the questions affecting its validity. Such questions cannot be raised and adjudicated in this court, without disregarding all the well settled rules of law applicable to the subject. This view renders it unnecessary to pass upon the other questions raised by the demurrer.

Judgment affirmed..