Caouette v. Young

• Decision Date: 11 March 1892
• Citation: 67 N.H. 159,32 A. 157
• Parties: CAOUETTE v. YOUNG.
• Court: New Hampshire Supreme Court

32 A. 157

67 N.H. 159

CAOUETTE

v. YOUNG.

Supreme Court of New Hampshire. Hillsborough.

March 11, 1892.

Debt, by William C. Caouette against Sarah C. Young, administratrix, upon a judgment rendered by the police court of Manchester against the defendant's Intestate, John C. Young, in his lifetime. The writ is dated November 8, 1889. Plea, nultiel record.

Facts found by the court: The plaintiff called the clerk of the police court, who produced the docket and files of that court relating to the judgment set forth in the declaration. The docket entry is as follows:

1874 July 1 409,

William C. Caouette v. Albert Juitress alias Deroueier John C. Young.

Osgood Default Judg't.

34.58 debt 4.99 costs

39.57

in the writ William C. Caouette is described as plaintiff, and "Albert Tuitress, alias Albert Deroucier," as defendant. The name of Hiram Young was originally inserted as trustee. The name "Hiram" was erased, and the name "John C." written over it, and a corresponding change was made in the filing on the back of the writ. It did not appear when these changes were made. The officer's return shows that service was made on John C. Young by his leaving a copy at his abode, May 29, 1874, at 2:40 p. m., and on Deroucier by his giving to him in hand a copy June 15, 1874. The writ is dated May 28, 1874, and was made returnable on the first Wednesday of July then next. The ad damnum is $13. The specification is as follows:

"Manchester, N. H., July 1st, 1874. "Albert Deroucier to William O. Oaouette, Dr.

1873. July 15. To meat..........

4 58

"cash lent...................

30 00

34 58"

The clerk of the police court also produced an execution issued by that court, dated July 2, 1874, in favor of William C. Caouette against John C. Young, as trustee of Albert Juitress, for $39.57, and 17 cents more for the execution. The execution was returned unsatisfied May 25, 1891 (as appears by an indorsement on the back thereof), the day before the hearing in this action. The execution was received subject to the defendant's exception. There is no entry on the docket of the issuing or return of the execution. There is no record, except the foregoing, that Young was defaulted, or of any judgment against him. The foregoing docket entry and papers from the files constitute the only record in the case. John C. Young died in 1887, leaving a large estate, and was a man of large property from the time of the service of the writ upon him until his death. The defendant is administratrix of his estate.

Alpheus C. Osgood, for plaintiff.

Burnham, Brown & Warren, for defendant.

BLODGETT, J. The plea of nultiel record merely puts in issue the existence of the record as stated. 1 Chit. Pl. 485. Under this plea to debt on a judgment the plaintiff cannot recover if, upon the production of the record, the judgment upon its face appears to be void; but he may recover if the judgment, though erroneous, is merely voidable, and has not been set aside or reversed. Bruce v. Cloutman, 45 N. H. 37. The record in this case shows due and legal notice of the original suit to the principal debtor and...