10 Vt. 87 | Vt. | 1838
The opinion of the Court was delivered by
This is an audita querela to set aside an execution and recover daipag.es, on the ground that there i? no judgment, or an •irregular judgment, on which such execu; tign issued; for this, that the complainants sent a person to, answer to the suit before the justice and appeal the same, whose authority to appear being objected to by the opposite side, on the ground that he was not an attorney of record, and presented no written power of attorney, his appearance was denied by said Justice, and a judgment rendered by default, on which execution issued. The writ of audita querela,whatfever "may have formerly been its use in this state, i? now con; fined almost to its common law limit?.. It is a writ to set aside an execution, for causes which arose after judgment, and tp recover damages of the opposite party, It did not, at com; xnon law, extend to the judgment! That, could be set aside only by a writ of error, which preseryed the cause, correcting the error. The writ here has, however, been holden to extend to those cases where the judgment has been rendered with; .out notice, or where the defendant has been prevented at; tending, by the fraudulent procurement of the plaintiff. In this case the record shows a regular notice of the suit before the Justice, a regular judgment by default, in a case within the jurisdiction of the Justice, remaining in full force, and ng
Judgment reversed,