Scott v. Larkin

| Vt. | Jan 15, 1841

The opinion of the court was delivered by

Redfield, J.

The writ of audita querela, at common law, lies only to relieve the party on the ground of some matter happening after the judgment, and which he had no opportunity to plead. Turner v. Davies, 2 Saund. R. 148, n. (1.) Corbett v. Barnes, Cro. Car. 443. That remedy has been, in the American states, and especially in this state, somewhat extended. But no case is found where it has been extended to a case like the present. And there are no such circumstances of hardship or injustice apparent here, as would seem to call upon the court to innovate upon long established principles.

This is but an ordinary case. One defendant, in an action, ex contractu, is permitted by the court to defend for his co-defendants. At common law, and by our practice, except under the late statute, each defendant in actions ex contrac-tu, must defend for all. He may, in the absence of instructions to the contrary, employ counsel, enter appearance, plead and defend fully for all. And even where one defendant is defaulted, if the other defendants succeed in their de-fence, judgment must ’ bo arrested on the default. And, although the late statute enabled the courts in this state, in actions ex contractu, to render judgment against part of the defendants, this did not, in other respects, alter the relation of the defendants. And we think the court, in the present case, was justified in continuing the case on the agreement of ' the plaintiff and one of the defendánts ; that this agreement will bind the other defendant, and that he cannot sustain au~ dita querela, to reverse the judgment for what was done by his implied consent. That would be to invite the party to lie by, and suffer judgment by default, and then take advantage of his own indolence, if not his own wrong.

Judgment reversed and new trial granted.