Barrett v. Vaughan
Supreme Court of Vermont
This was an audita querela, commenced in the supreme court, in which the present plaintiff attempts to set aside a former execution and judgment which the defendant recovered against him as administrator on the estate of one John W. Mott.
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This was an audita querela, commenced in the supreme court, in which the present plaintiff attempts to set aside a former execution and judgment which the defendant recovered against him as administrator on the estate of one John W. Mott. The declaration states, in substance, that in the former suit between the parties, the defendant in his declaration made profert of his letters of administration, and then avers that the defendant never was administrator on the estate of said Abbot, duly appointed by any court of probate in this state, but that the defendant fraudulently and deceitfully…
1Opinion of the Court
The opinion of the court was delivered by
Mattocks, J.
— The whole complaint in this audita querela is, that the defendant, in a former suit, declared against the now plaintiff in an action of debt on judgment, as administrator of one John W. Mott, deceased, and recovered a judgment in said suit; - and the plaintiff now alleges that in fact the defendant was not the administrator upon said estate. It is a well settled principle, that an audita querela will not lie to overhaul a judgment, where the defence could have been made in the original suit, unless such defence has been prevented by the…
2Cited by3 opinions
- Radclyffe v. BartonMassachusetts Supreme Judicial Court · 1894
- Lovejoy v. WebberMassachusetts Supreme Judicial Court · 1813
- Wardell v. EdenNew York Supreme Court · 1801