Alexander v. Abbott
Supreme Court of Vermont
Audita Querela. The plaintiff alleged, in substance, that, while he was absent from the state, the defendant fraudulently sued out a writ against him, returnable before a justice of the peace, and caused the same to be served by attaching the plaintiffs* property, and, at the return day of the writ, took judgment against the plain- • tiff by default, without continuing the suit for notice to the plaintiff, and without giving security, by recognizance, as required by statute,…
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Audita Querela. The plaintiff alleged, in substance, that, while he was absent from the state, the defendant fraudulently sued out a writ against him, returnable before a justice of the peace, and caused the same to be served by attaching the plaintiffs* property, and, at the return day of the writ, took judgment against the plain- • tiff by default, without continuing the suit for notice to the plaintiff, and without giving security, by recognizance, as required by statute, for the refunding of such sum, as should be recovered by the plaintiff by writ of review, and that he took out…
1Opinion of the Court
By the Court.
We think this suit well brought. The case of Marvin v. Wilkins, 1 Aik. 107, is, we think, no extension of the remedy by audita querela, beyond what it has been sustained in other analogous cases, ever since the enactment of the' statute of 1829. And this, with the cases upon other grounds, where audita querela had been brought and sustained, before the statute affording a remedy by petition was enacted, have still been considered as in force, and followed, — as, for example, where the party had been unjustly denied an appeal; Tyler v. Lathrop, 5 Vt. 170 ; and yet this is the very…
2Cases cited2 opinions
- Marvin v. WilkinsSupreme Court of Vermont · 1826
- Tyler v. LathropSupreme Court of Vermont · 1832
3Cited by4 opinions
- Folsom v. ConnerSupreme Court of Vermont · 1876
- Harmon v. MartinSupreme Court of Vermont · 1880
- Deal v. PowellSupreme Court of Vermont · 1914
- Folan v. FolanSupreme Judicial Court of Maine · 1871