Wood v. Agostines, 72 Vt. 51

Wood v. Agostines

72 Vt. 51 | Vt. | 1899

Taft, C. J.

This action is debt on judgment. No pleadings were filed by the defendant. Under No. 10, County Court rules, the general issue was considered as pleaded. The general issue in an action of debt on judgment is nul tiel record. In an action of debt on judgment, nul tiel record is the proper plea and not nil debet. The plea nul tiel record puts in issue, simply the existence of such a record as is declared upon and that question is determined by the court upon an inspection of the record itself; when matter of fact as well as matter of law is pleaded, the issue is to the jury. If a record upon its face shows a valid judgment, the plea of nul Uel record is not sustained unless there is a variance between the record offered in evidence and the declaration. Stevens v. Fisher, 30 Vt. 200; Stevens v. Hewitt, ibid, 262.

When this case was before us, reported in 70 Yt. 637, it was held that although the record showed that the court rendering judgment had jurisdiction, extrinsic evidence was admissible to show that it had not. The question of pleading was not raised but the case passed to this court on a fro forma ruling to determine if the record could be contradicted by showing want of *54jurisdiction. The question now presented is whether under the plea of nul tiel record, the facts, that process in a suit in Maine in which the judgment sought to be recovered was rendered, was not served upon the defendant, and that he did not appear in the suit, neither by himself nor by attorney, — in effect that he had no notice of the suit, — can be shown. If the record of a judgment shows jurisdiction, extrinsic evidence is not admissible under a plea of nul tiel 'record. Pleading is to inform the court and the parties of the facts in issue; the court that it may declare the law, the plaintiff what facts to establish and the defendant what to meet by their respective proofs. A defense contradicting the record must be pleaded that the facts may be put in issue. A defect appearing upon the face of the record may be taken advantage of under a plea of nul tiel record, but those requiring extrinsic proof to make them apparent, must be alleged before proved. This is in accord with precedents and the elementary principles of'good pleading.

2. Plaintiff’s counsel was prohibited from arguing that -the failure of the defendant to produce Mrs. Milenia as a witness in regard to the time he arrived in Montpelier, was a fact from which the jury might draw an unfavorable inference against the defendant. The record does not disclose that the plaintiff did not have as much knowledge on the subject of what Mrs. Milenia knew in regard to the matter as the defendant. If she had, the witness was equally within reach of both parties and the court was correct. Arbuckle v. Templeton, 65 Vt. 205; State v. Fitzgerald, 68 Vt. 125. We cannot presume the want of knowledge on the part of the plaintiff in order to reverse the judgment. For aught that is shown by the record the plaintiff had such knowledge, and the ruling therefore correct.

3. The statement of the counsel that he claimed nothing for the evidence “if it was not put in,” contained an inference that he had such testimony, a fact which it was improper to state to the jury. While it may be true as argued by him, “ if a case is to be reversed every time an attorney on either side mis-states *55the evidence, few cases would ever stand,” a few reversals will teach salutary lessons to the counsel and quicken their memory in respect to what has and what has not been shown. It is cause for reversal but it is immaterial what we hold on the question as the cause is revprsed on other grounds.

Judgment reversed and cause rema/nded.