49 Vt. 98 | Vt. | 1876
The opinion of the Court was delivered by
This is audita querela to set aside a justice’s judgment. In that suit the writ was not served on the defendant. He was set up in the writ as resident of Massachusetts, and a copy of the writ was left with the trustee for him. The cause was not continued for notice, as required by statute, and he had no notice in fact until long after the return day of the writ. It is claimed that a proper recognizance for review was entered into before execution was issued against the trustee. The court adjudged that all the requirements of the statute must be complied with before execution could issue against the property of the absent debtor, and for this, error is assigned. The leading case of Marvin v. Wilkins, 1 Aik. 107, decides that this writ is the proper remedy where there is no personal service, and the defendant was out of the state at the time the action was commenced,- and the provision of the statute is not complied with. The court say: “ If it does not appear by the officer’s return that the defendant has personal notice of the suit, the plaintiff should prove notice before he takes default, or else have the cause continued as directed by the statute.” The statute is mandatory as to the continuance ; and the justice may, in his discretion, continue the case a second time, for notice. It is a fundamental axiom of jurispru
a continuance as was well calculated to subserve the ends of the statute; but this was a matter within the cognizance of the justice, and cannot, upon the face of the record, invalidate the judgment.”
The statute has made the continuance for notice an “ impera;tive duty on the justice,” in order to obtain jurisdiction over the property of an absent debtor ; and we think, if that “ imperative ” and mandatory requirement of the statute is not complied with, the judgment is invalid, and may be set aside by audita querela.
Judgment affirmed.