Legal Opinion

Fairbanks v. Devereaux

Supreme Court of Vermont

Decided February 15, 1876PublishedCited by 4 opinions

Audita Querela to set aside an execution and levy thereof on real estate. The pleadings resulted in a special demurrer to the rejoinder. The merits of the case fully appear from the opinion. The court, at the May Term, 1875, Barrett, J., presiding, rendered judgment for the defendants ; to which the plaintiff excepted.

1Opinion of the Court

The opinion of the court was delivered by

Wheeler, J.

I. The alias execution was not properly issued. As it was issued, it did not set forth the foundation of its commands, nor the commands themselves, truthfully. It recited the recovery of judgment as to term of court and amount of damages and costs, correctly, but when it went on and recited further, that thereof execution remained to be done, it stated it wrongly, for execution remained to be done for only a part thereof. The execution should have stated the judgment as it did, which was according to the fact, and here great aceuracy is…

2Cases cited1 opinion

  1. Hopkins v. HaywardSupreme Court of Vermont · 1861

3Cited by4 opinions

  1. Macke v. ByrdSupreme Court of Missouri · 1895
  2. Fairbanks v. DevereauxSupreme Court of Vermont · 1886
  3. In re HuntSupreme Court of Vermont · 1912
  4. Whitefield v. AdamsSupreme Court of Vermont · 1893

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