Legal Opinion

Scott v. Larkin

Supreme Court of Vermont

Decided January 15, 1841PublishedCited by 7 opinions

Audita Querela, to set aside a judgment rendered on the 13th day of September, 1838, by Danforth Wales, Esq., a justice of the peace, and an execution issued thereon, in favor of Edward Larkin against the complainant, Scott, and one Griffin, wherein the complainant alleged that he had been unjustly deprived of his day in court. Plea, not guilty. Issue to the court.

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Audita Querela, to set aside a judgment rendered on the 13th day of September, 1838, by Danforth Wales, Esq., a justice of the peace, and an execution issued thereon, in favor of Edward Larkin against the complainant, Scott, and one Griffin, wherein the complainant alleged that he had been unjustly deprived of his day in court. Plea, not guilty. Issue to the court. On the trial in the county court, the plaintiff gave in evidence the record of the proceedings and judgment in the suit of Larkin v. Scott and Griffin, and the execution issued thereon. The writ was made returnable at the house of…

1Opinion of the Court

The opinion of the court was delivered by

Redfield, J.

The writ of audita querela, at common law, lies only to relieve the party on the ground of some matter happening after the judgment, and which he had no opportunity to plead. Turner v. Davies, 2 Saund. R. 148, n. (1.) Corbett v. Barnes, Cro. Car. 443. That remedy has been, in the American states, and especially in this state, somewhat extended. But no case is found where it has been extended to a case like the present. And there are no such circumstances of hardship or injustice apparent here, as would seem to call upon the court to…

2Cited by7 opinions

  1. Reynolds v. FlemingSupreme Court of Kansas · 1883
  2. Spaulding v. SwiftSupreme Court of Vermont · 1846
  3. Whitney v. SilverSupreme Court of Vermont · 1850
  4. Josiah Abbott & Co. v. DuttonSupreme Court of Vermont · 1872
  5. Aldrich v. BonettSupreme Court of Vermont · 1860

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