The opinion of the court was delivered by
It has often been decided by this court that where judgment is rendered by a justice in a suit after it has been, in any manner, discontinued, the same will be set aside by audita querela. Brown v. Stacy, 9 Vt. R. 118; Phelps v. Birge, 11 Vt. R. 161; Crawford v. Cheney, 12 Vt. R. 567. A suit may be discontinued by the absence of the court, or of the parties. The latter appears, from the record, to have been the fact in this case. The suit was, therefore, discontinued on the 22d of August, and, consequently, the judgment rendered on the 12th of September is void.
The evidence offered to contradict the record of the justice was properly rejected. It was held by this court, in the case of Barnard v. Flanders, 12 Vt. R. 657, that the record of a justice of the discontinuance of an action was conclusive, though that was in a suit against the justice in which the record was used in his defense, and in which he was directly interested to make, as it was alleged he did, a false record. A fortiori, such record should be conclusive in this case.
Judgment affirmed.