Kimball v. Randall
Supreme Court of Vermont
Audita Querela. Heard by the court., March Term, 1884, Powers, J., presiding. Judgment that the justice judgment be annulled and set aside, and for complainant to recover one cent damages and costs.
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Audita Querela. Heard by the court., March Term, 1884, Powers, J., presiding. Judgment that the justice judgment be annulled and set aside, and for complainant to recover one cent damages and costs. The court found that the original writ was returnable at the office of said Durant, August 14th, 1877, at nine o’clock, a. m.; that, about half past nine o’clock on the return day, the justice went to the office, entered on the files a default, and left, saying to the defendant Durant, (one of the plaintiffs and also attorney in the original suit) that if any one appeared within the two hours for…
1Opinion of the Court
The opinion of the court was delivered by
Taft, J.
I. The first question arises on the motion to dismiss. It is claimed that the recognizance given under R. L. sec. 1415, is defective. The recognizance was conditioned in .the exact words of the statute, and was therefore sufficient.
II. The other question is on a motion in arrest of judgment. ALudiia querela'bears solely upon the acts of the adverse party. Little v. Cook, 1 Aik. 363. It lies to vacate a judgment where the complainant was deprived of his day in court by the fraud of the defendant. Eddy v. Cochran, 1 Aik. 359. See Weeks v.…
2Cases cited2 opinions
- Little v. CookSupreme Court of Vermont · 1826
- Eddy v. CochranSupreme Court of Vermont · 1826
3Cited by1 opinion
- Investors Finance Co. v. LuxfordSupreme Court of Colorado · 1928