Legal Opinion

Rollins v. Clement

Supreme Court of Vermont

Decided August 15, 1876PublishedCited by 2 opinions

Audita Querela to set aside a judgment of a justice of the peace. Plea, not guilty, and trial by the court, December Term, 1875, Ross, J., presiding.

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Audita Querela to set aside a judgment of a justice of the peace. Plea, not guilty, and trial by the court, December Term, 1875, Ross, J., presiding. It appeared that on November 11, 1873, the defendant brought assumpsit against the plaintiff, returnable before a justice of the peace on November 28, summoning Thomas Richards as trustee, and setting up plaintiff as resident of Massachusetts; that service was made by delivering to the trustee a copy of the writ, and leaving with him a copy for the plaintiff, who was, in fact, then resident out of the state ; that on the return day of the writ,…

1Opinion of the Court

The opinion of the Court was delivered by

Redfield, J.

This is audita querela to set aside a justice’s judgment. In that suit the writ was not served on the defendant. He was set up in the writ as resident of Massachusetts, and a copy of the writ was left with the trustee for him. The cause was not continued for notice, as required by statute, and he had no notice in fact until long after the return day of the writ. It is claimed that a proper recognizance for review was entered into before execution was issued against the trustee. The court adjudged that all the requirements of the statute…

2Cases cited3 opinions

  1. Marvin v. WilkinsSupreme Court of Vermont · 1826
  2. Stevens v. FisherSupreme Court of Vermont · 1857
  3. Kidder v. HadleySupreme Court of Vermont · 1853

3Cited by2 opinions

  1. James R. Hill & Co. v. WarrenSupreme Court of Vermont · 1881
  2. Hawley v. MeadSupreme Court of Vermont · 1880

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