Smith v. Howard

41 Vt. 74 | Vt. | 1868

The opinion of the court was delivered by

Pecic, J.

The plaintiffs recovered final judgment in the county court at the May term, 1867, in an action of general assumpsit. At the December term, 1867, on motion of the plaintiffs and against objection by the adverse party, the county court, under an order to that effect, brought forward the case, vacated the judgment, and rendered judgment for the same damages and costs as in the former judgment, adding thereto interest on the damages in the mean time. To this whole proceeding at the December term, 1867, the defendant excepts.

The motion of the plaintiffs was granted by the county court, solely on the facts set forth in the affidavit of the attorney of the plaintiffs in the suit, which affidavit is made part of the exceptions. The only ground for the motion set forth in the affidavit, is that the original writ issued against the body of the defendant; that the defendant procured bail upon the writ; that, by inadvertence or error of the clerk, the execution issued only against the goods,, chattels and estate of the defendant, and that, within thirty days after the rendering of the judgment, it was delivered to a. proper officer to serve, who, within sixty days from the rendering of the judgment, duly returned the same with his return of non est in-ventus thereon; that the attorney, presuming the execution to-havc issued in proper form, never examined it, and had no knowledge to the contrary, till informed by the officer after its final return. There is no doubt but the county'court, within certain limits, has such power over its records and judgments as to warrant the court in ordering them corrected, and, if necessary, for sufficient reasons,, to order a case to be brought forward after final judgment, and vacate that judgment, and open the case for further proceedings. In such case, it is ordinarily so far a matter of discretion in the county court, that this court will not revise such proceedings On exceptions. But the question in this case, is whether the cause alleged and the purpose in view bring the case within the sc ope of the power and discretion of that court, so as to be beyond the power of this court to revise their doings on exceptions. We think not. The original judgment of the county court was in all respects regular and correct, as to both the proceedings of the court,,. and the doings of the clerk in making up the judgment in pursuance of the decision of the court. The only object and the avowed purpose of bringing the case forward and having another judgment rendered, at a subsequent term, were to charge the bail on the writ; a remedy which the party had lost, or, rather, which they had failed to acquire, by reason of their neglect to comply with the statutory requirements to perfect it. By reason of such neglect, the bail was discharged by the provisions of the statute. It may be said that it was an error of the clerk, and that the court ought, therefore, to relieve the plaintiffs from the consequences of such error. But it is not a mistake in the judgment, but in the subsequent process founded on the judgment. But we do not regard it .as so much the error, or mistake, of the clerk, as of the party or their counsel. It is no part of the official duty of the clerk to issue an execution, till it is called for'by the party entitled to it. And when called for in this case, it was the duty of counsel to call for .an execution against the body, if he was entitled to it and desired such execution. It was an action of general assumpsit, and^rw facie the plaintiffs were entitled only to such an execution as the clerk issued. In this form of action, it is only upon the ground that a proper affidavit was filed with the authority signing the writ, or on issuing the execution, that the plaintiff can claim that he is entitled to an execution against the body. Whether the affidavit filed on issuing the writ, entitled the plaintiffs to an execution a'gainst the body, we need not decide. If a county court writ is signed by a justice of the peace, the affidavit never comes into the county court; so the clerk has no means of knowing whether one was filed or not. Whether the writ was signed by the clerk or not, in this case, the exceptions do not show, and a copy of the writ has not been furnished us. This, however, is immaterial, for even if it was signed by the clerk, if the plaintiffs desired an execution against the body of the defendant, it was their duty to call for such execution. At least, they are no less in fault than the clerk, even if any fault is attributable to the clerk. If such a proceeding as this can be had to charge bail when once discharged, it may be resorted to to charge a sheriff, when the debtor was committed on the original writ, and the sheriff has allowed the debtor to depart, as be would be obliged to, after the time has expired within which the debtor must be taken in execution by statute ; <or to revive lost liens upon property attached, after the officer has let it go back into the hands of the debtor. So, too, this proceeding might be resorted to to defeat the rights of subsequent attaching or levying creditors. In this case the effect may be to charge the bail, when, had a proper execution issued seasonably against the debtor, the bail might have discharged himself by surrendering up the principal. The mischief of such proceedings might be incalculable.

In Allen’s administrator v. Thrall, in Rutland county, two or three years since, there was property attached on the original. writ, the plaintiff died pending the suit, the administrator entered and prosecuted the suit and recovered judgment, took out an execution and delivered it to a proper officer within the thirty days, and the officer did what is required in such cases to charge the property attached, and duly returned the execution unsatisfied. It was then discovered that the execution was taken out in the name only of the original plaintiff, not mentioning the administrator, and the judgment was described in the execution as if the original plaintiff had been still alive. The county court, on motion of the plaintiff, at the subsequent term, granted leave to have the execution amended by the clerk; and on exceptions the supreme court held • it was error, on the ground, mainly, that otherwise it might charge the officer or his bailees, who were already discharged by reason of the defect in the execution. That case was decided after two elaborate arguments (the last being at the general term), and a review of all the leading authorities in England and in this country. The principle of that case is decisive of this, although the relief in this case is sought in a different mode. The motion in this case ought to. have been denied on the very ground on which the plaintiffs prayed to have it granted, that is, the charging of the bail.

Judgment reversed, and case remanded.