27 Vt. 276 | Vt. | 1855
The opinion of the court was delivered by
The questions in this case arise upon a general demurrer to the declaration. The action is debt on a recognizance taken on the allowance of the writ of audita querela. The Comp. Stat. 292, § 7, provides that the judge, allowing a writ of audita querela, shall take sufficient security by way of recognizance for the redelivery of the body or estate to the custody of the officer, if the same shall be awarded, and for the payment of all intervening damages, and in default thereof, the payment of the debt and costs. If neither the body or estate is taken, the recognizance should be conditioned for the payment of intervening damages and costs, if the complainant fails to prosecute his writ to effect.
It is averred in the declaration, that on the 23d of October, 1851, an extent was issued by the treasurer of this state, directed to the sheriff of Rutland county requiring him to levy and collect of the town of Poultney, the sum of $962.48; that on the 11th of November, 1851, the extent was levied on personal property and the same was advertised for sale; that the town of Poultney prayed out them writ of audita querela, and that the judge granting it, certified that it ought to operate as a supersedeas to restrain all further proceedings with the extent. Upon these facts which are admitted by the demurrer, the recognizance should have been taken for the redelivery of the property or estate to the custody of the officer if awarded, and for the payment of all intervening, damages &c., whereas, the recognizance was for the payment of all intervening damages and costs,-if the town of Poultney should fail to prosecute this writ to effect. The recognizance which was taken, is proper only in cases, where no levy has been made on the body or estate of the debtor. The defect consists in the omission of those conditions, which are required when the body or estate is levied upon.
It is insisted that, on this recognizance, the plaintiff is entitled to recover the amount due on that extent as intervening damages, and also the costs allowed on the writ of audita querela, which the
We think also that no recovery can be had for the costs arising from the failure to prosecute the writ of audita querela to effect. If that process had been defeated for any matter merely erroneous or for any cause short of an entire want of jurisdiction of the suit or its subject matter, possibly the costs could be recovered on this recognizance, Stedman v. Ingraham, 22 Vt. 346. But it is a common principle “ that a recognizance taken for a purpose not authorized by law is void.” Harrington v. Brown, 7 Pick. 232. So too, “ where the court had no authority to act.” Vose v. Deane, 7 Mass. 280. Billings v. Avery, 7 Conn. 236. It must also appear that the court before whom the process is returnable had jurisdiction of the subject matter, or the recognizance will be void. Bridge v. Ford, 4 Mass. 641. State Treasurer v. Danforth, Brayt. 140. Commonwealth v. Bolton, 1 S. & R. 328. From the report of this case in 25 Yt. 168, it appears that the suit was dismissed in the county court, as that court had not jurisdiction of the subject matter of the suit, and that decision was affirmed in the supreme court. The entire proceeding was treated as being coram non judice, and that decision must be regarded as the law of this case. It is true that under our statute costs were taxable against the complainant on the dismissal of that suit; but they are to be enforced against the party himself, and not by a suit upon a recognizance, which was not taken in a proceeding, nor in a manner warranted by the statute. This view of the case renders it unnecessary to decide other questions which have been raised on this demurrer.
The judgment of the county court is affirmed.