Burns v. First National Bank
Supreme Court of Vermont
Audita querela to set aside the judgment of a justice of the peace. The original process was substantially in the statutory form of a writ of audita querela, except that the prayer was, that the court reverse and set aside said judgment, •“ and proceed to hear, try, and determine said action according to the statute in such case made and provided,” and that it was signed, “ Thomas Burns by Geo. G. Smith, his Atty.”
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Audita querela to set aside the judgment of a justice of the peace. The original process was substantially in the statutory form of a writ of audita querela, except that the prayer was, that the court reverse and set aside said judgment, •“ and proceed to hear, try, and determine said action according to the statute in such case made and provided,” and that it was signed, “ Thomas Burns by Geo. G. Smith, his Atty.” Then followed a notary’s certificate of the oath of said attorney, “ that the foregoing complaint by him subscribed contains the truth, the whole truth, and nothing but the truth,…
1Opinion of the Court
*271The opinion of the court was delivered by
Barrett, J.
The original process in this case had such “ a questionable shape ” when entered in court, that, at the next term, the plaintiff deemed it important to have it amended into an unquestionable writ of audita querela. Until that amendment was made, it could not be assumed that the judge who certified, “ allowed and signed by me at St. Albans this 12th day of January, 1871,” had allowed and signed a writ of audita querela. He had allowed and signed the original process — if the mode in which it was done can be treated as the signing of the…
2Cases cited1 opinion
- Wilder v. StaffordSupreme Court of Vermont · 1858