The opinion of the court was delivered by
We do not think the plaintiff can succeed with this action. The only ground of the plaintiff’s complaint is, that he was wrongfully denied, in the justice’s court, a trial by jury. It is of no importance, in this case, to inquire whether he had a right to a jury trial, or not, since it is quite clear, that, if such right existed under the statute, the denial of it would constitute no good ground for this proceeding. It would at most, be but error in the proceedings of the justice. The complainant had his day in court, and his ground of grievance is, that he had his trial by the court, and not by a jury, as he claims was his right. .The fact that our legislature have not allowed a justice’s judgment to be reversed upon a writ of error is no reason, why their errors should be corrected upon audita querela.
This case is not like the case of Tyler v. Lathrop, 5 Vt. 170. In that case the justice denied to the defendant an appeal, in a case in which he was entitled to one. Though,, in that case the audita querela was sustained, in comformity to a practicó, as it was said, which had obtained, to allow such a remedy; and though that case has been since followed, in cases precisely identical, yet we are not disposed to extend it, by a supposed analogy of reasoning, so as to make it an authority for other cases.
The judgment of the county court is affirmed.