Legal Opinion

Wilson v. Fleming

Supreme Court of Vermont

Decided March 15, 1844PublishedCited by 2 opinions

Audita Querela. The plaintiffs alleged in their writ, that the defendant sued out a trustee process against one Winchester as principal debtor, declaring on a note due from Winchester to him, and summoned therein the plaintiffs, as trustees of said Winchester, that such proceedings were had that the justice, before whom said trustee process was made returnable, rendered judgment thereon in favor of the defendant against the plaintiffs, as trustees, for the sum of $23.15…

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Audita Querela. The plaintiffs alleged in their writ, that the defendant sued out a trustee process against one Winchester as principal debtor, declaring on a note due from Winchester to him, and summoned therein the plaintiffs, as trustees of said Winchester, that such proceedings were had that the justice, before whom said trustee process was made returnable, rendered judgment thereon in favor of the defendant against the plaintiffs, as trustees, for the sum of $23.15 damages, and $3.45 costs; and that the defendant had taken Out an execution thereon, running directly against the…

1Opinion of the Court

The opinion of the court was delivered by

Redfield, J.

We have no doubt that a trustee is so far a party to a judgment, rendered in that form of process, that, if a void execution issue against him, he may be relieved by audita querela. For some purposes the word “party,” in such actions, only includes the plaintiff and principal defendant; for others, it would, no doubt, include the trustee. It would involve the very last degree of absurdity, to suppose that any court could issue an execution, without any judgment whatever upon which to found it, and leave the party wholly remediless, by…

2Cases cited1 opinion

  1. Sherwin v. BlissSupreme Court of Vermont · 1831

3Cited by2 opinions

  1. Perry v. WhippleSupreme Court of Vermont · 1865
  2. Clark v. LathropSupreme Court of Vermont · 1860

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