Dingman v. Myers
Massachusetts Supreme Judicial Court
Audita querela. At the trial in the court of common pleas in Berkshire, the following facts were proved: Myers sued out of that court a writ of attachment against Dingman, who was described therein as formerly of West Stockbridge, but now of the State of New York, and who in fact was not then, or ever since, a resident of this commonwealth. There was no service upon him and no appearance by or for him in the action.
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Audita querela. At the trial in the court of common pleas in Berkshire, the following facts were proved: Myers sued out of that court a writ of attachment against Dingman, who was described therein as formerly of West Stockbridge, but now of the State of New York, and who in fact was not then, or ever since, a resident of this commonwealth. There was no service upon him and no appearance by or for him in the action. At the return term, it was suggested that he was put of the Commonwealth, and an order of notice was passed and complied with. Judgment on default was obtained against him, and an…
1Opinion of the CourtDewey, J.
The giving of a bond to repay the amount of the judgment, if reversed on review within a year, was a prerequisite to issuing an execution, and imperatively required by the Rev. Sts. c. 92, § 6. For this error the question now arises, what is the proper remedy? A writ of error does not lie in such case, as was held in Johnson v. Harvey, 4 Mass. 483. The defendant in the former suit might have sued out a writ of review within a year after the rendition of the judgment. We *3think he may also resort to his writ of audita querela, given by the Rev. Sts. c. 112, § 1. This seems to be sanctioned by…
2Cases cited2 opinions
- Johnson v. HarveyMassachusetts Supreme Judicial Court · 1808
- Gridley v. HarradenMassachusetts Supreme Judicial Court · 1780