19 N.M. 572 | N.M. | 1914
OPINION.
The defendant secured an affirmance in this court of a judgment against the plaintiff, 17 N. M. 275. The judgment was upon a subscription contract,, the consideration whereof was that the defendant was to establish a Methodist college in or near Artesia, New Mexico, and to equip, maintain and operate the same for a period of twenty years: It did erect a building and did-maintain a school at the place designated prior to and at the time of the trial in the district court, but the same was. not a college, and was devoted to the teaching of the primary grades. Plaintiff alleges that, at the time of the-trial, he was ignorant of the true facts and was deceived; by the fraud, concealment and perjury of the defendant’s-witnesses in that regard. It is further alleged that subsequent to the trial the defendant allowed a mortgage to-be foreclosed upon its property, and quit-claimed its equity of redemption therein, and gives out that it has permanently abandoned the said enterprise; that the defendant is insolvent; that it is threatening to enforce the said judgment by execution, and that plaintiff has no remedy except to apply to this court for a writ of audita querela.
We issued an order to show cause, and the defendant has defaulted, having made no return to the order. We-may therefore assume the facts as alleged in the verified complaint, to be sufficiently established for the purpose off the proceeding, without further proof.
It appears from the foregoing brief statement that plaintiff’s claim to relief rests upon two grounds: 1st,, facts existing prior to and at the trial, viz. the alleged', fraud, deceit and perjury as to the character of the school being maintained by defendant; and 2nd, facts occurring after the trial, viz: the abandonment of the enterprise by the defendant, thus destroying the consideration for the-promise of the plaintiff. Whether the first ground mentioned is available to plaintiff or not, under the fae\s as pleaded, it is not necessary for us to decide. It may have-been the duty of the plaintiff to ascertain for himself the character of the school being maintained rather than rely upon representations of the defendant.
But the second ground seems to be well founded. The-contract of subscription of plaintiff to the defendant, provided that as a consideration for the subscription the defendant would equip, maintain and operate the said college for twenty years.
He states that it is in the nature of a bill in equity to relieve against oppression.
But even in Blackstone’s time this writ had been almost driven out of practice by the more simple, practice of awarding the same relief upon motion. That a proceeding upon motion is the better practice, even where the ancient writ of audita, querela is still permissible. See 2 Ruling Case Law, 1162.
The proceeding in this case,- whether treated as a pro-, ceeding as for the ancient writ of audita querela or as a motion, is ample to meet the requirements. It requires no citation of authority to show that the defense of the plaintiff in this proceeding to the judgment obtained against him is complete and perfect. It-would be unconscionable to allow the judgment now to be enforced.
For the reasons stated, the execution heretofore issued will be quashed, and the judgment heretofore rendered in this court will be declared to be unenforcible against the plaintiff by execution or otherwise, and, IT IS SO ORDERED.