Starbird v. Moore

| Vt. | Dec 15, 1848

The opinion of the court was delivered by

Royce, Ch. J.

We consider, that the paper offered to prove the judgment complained of was admissible, as record evidence. It was none the less evidence of a record, because it contained a full copy of the original process and the officer’s return upon it, though a proper record might have been made without embracing such a copy. The paper showed, by necessary implication, the appearance of the parties in the suit before the justice, and stated the proceedings until the suit terminated in a trial and judgment. The whole was authenticated by the official'signature of the magistrate, and certified to be a true copy. The document thus comprised all the essentials of a sufficient record, within the statute, which requires, that justices shall make records of their judgments, but prescribes no form, in which they shall be drawn up. The case is not affected by that of Strong et al. v. Bradley, 13 Vt. 9" court="Vt." date_filed="1841-01-15" href="https://app.midpage.ai/document/strong-v-bradley-6572406?utm_source=webapp" opinion_id="6572406">13 Vt. 9, where the original files and entries upon them were offered in evidence, instead of a record, nor by that of Nye et al. v. Kellam, 18 Vt. 594" court="Vt." date_filed="1846-03-15" href="https://app.midpage.ai/document/nye-v-kellam-6573491?utm_source=webapp" opinion_id="6573491">18 Vt. 594, where the record was held:to be defective upon its .face, .in failing to state sufficient to show a valid judgment rendered.

There was no.material .variance .between .the declaration and ,the record produced. The declaration alleged the judgment to have been rendered on the 24th day of September, and the record expressly stated, that it was then rendered. There was, indeed, an additional statement, that the cause was continued to the 25th for the taxation of costs. But the party already had judgment, not only for his damages, but also for his taxable costs, and it only remained .to ascertain their amount. This is always done after judgment has passed. And hence the delay, which was granted for the single purpose of taxing costs, though improperly styled a continuance of the cause, did not affect the date of the judgment.

The remaining questions involve the sufficiency and legal effect of the matters set forth in the declaration. It is urged under the motion in arrest of judgment, that an audita querela is not sustainable for the cause alleged in this complaint. There may, perhaps, be no good reason ,to doubt, that the interests of Dewey, the infant .complainant, were as well protected in this instance, as if a guardian had appeared and defended for him; since it appears, that the action against him and the other .complainants was defended by counsel, and its merits contested in a trial by jury. But an infant being legally incapable of appearing for himself and defending his suit in court, or of appointing an attorney to appear and defend for him, any such appearance, or defence, amounts to nothing in contemplation of law. And hence no line of distinction .can be drawn, as to the probability of injustice having been done to the infant, between the case where he suffers judgment to pass against him by default, and where the suit is defended in any form short of an appearance and defence by guardian. In each case the infant is deemed not to have had his day in court. When this evil occurs in the higher courts, the mode of correcting it is by writ of error. But when occurring in a justice’s court, it can only be reached by this kind of process. And it is settled by a long course of decisions in this court, that in the latter case an audita querela may be supported.

It is also claimed, that the judgment of the justice should be vacated only as to Dewey, the infant, and be left in force as to the other complainants. This position receives countenance from an intimation in the case of Chase v. Scott, 14 Vt. 77" court="Vt." date_filed="1842-01-15" href="https://app.midpage.ai/document/chase-v-scott-6572562?utm_source=webapp" opinion_id="6572562">14 Vt. 77, which was decided, however, on another ground. But by the current of authority jn this state an audita querela, when it seeks to impeach the judgment itself, and not simply to obtain relief against the execution issued upon it, is treated, in respect to the necessary parties, like a writ of error. Gleason v. Peck et at, 12 Vt. 56. So that if a judgment against several persons be vacated as to one by this process, it must be vacated as to all. To this effect was the decision in Titlemore v. Wainwright, 16 Vt. 173" court="Vt." date_filed="1844-01-15" href="https://app.midpage.ai/document/titlemore-v-wainwright-6572848?utm_source=webapp" opinion_id="6572848">16 Vt. 173. There a judgment had been obtained against two persons, and one of them sought, by audita querela, to avoid the judgment as to himself. It was held, that the other person should have joined in the process. And on that ground the complaint was adjudged insufficient, though the alleged grievance operated to the sole injury of the complainant. That case is full authority for avoiding the judgment as to all the complainants. Judgment of county court affirmed.