Mussey v. White

• Decision Date: 10 March 1886
• Parties: MUSSEY v. WHITE.
• Court: Vermont Supreme Court

3 A. 319

58 Vt. 45

MUSSEY

v. WHITE.¹

SUPREME COURT OF VERMONT,

Filed March 10, 1886.

Exceptions from Rutland county court.

This was an audita querela, brought to set aside a judgment of the county court rendered at the September term, 1878, alleging fraud, and want of notice on the part of the complainant. Plea, general issue. Trial by jury, VEAZEY, J., presiding, September term, 1885. The complainant introduced evidence tending to show fraud, and that the said judgment of the county court was obtained without his knowledge; that the writ was never served upon him; that he was out of the state at the time the original writ in said cause, in which said judgment was rendered, was made; that he was never served with a copy of said writ, and had no notice whatever of said suit; that certain real estate was attached upon said writ, and set off upon the execution issued on said judgment, in which said real estate the complainant claimed an interest. Defendant then offered in evidence a judgment of the county court at the—— term, A. D. ——, in an audita querela, which defendant claimed was brought by the complainant to set aside the same judgment of the said county court, which judgment in said audita querela was for the defendant therein. The plaintiff objected to the admission of the said record on the ground that defendant could not introduce said record under the general issue, but should have filed a special plea, and on the ground of fraud in obtaining the same. The court admitted the evidence, and the complainant excepted. Defendant introduced no other evidence, except certain deeds and contracts, and the record of a decree of the court of chancery, all of which, with the pleadings in this case, and files and records in prior suits hereinbefore referred to, are referred to and made part of these exceptions. Complainant then offered to show that said judgment so obtained in the aforesaid first audita querela was wholly fraudulent and void, was brought in the interest of the plaintiff in the original suit for the purpose of validating, so far as he could, the first aforesaid judgment of the county court, and wholly without the knowledge or consent of the complainant; that it was not signed or sworn to by the complainant, or by any one by him authorized. The court excluded the evidence, and the complainant excepted. The defendant moved, and the court directed, a verdict for the defendant, to which the complainant excepted.

Redington & Butler, for complainant.

The record of this judgment was not admissible under the general issue. It is not a general denial of the complainant's cause of action. It was purely special matter in bar. A general denial would put in issue the allegations in the plaintiff's writ, but the judgment says in effect that those allegations cannot be inquired into, as the complainant has been concluded by the prior judgment, not a judgment prior to the cause of action, but since the cause of action accrued. The audita querela is a judicial writ, but there is no reason why it should not be governed by the same rules as to pleadings. Shumway v. Sargeant, 27 Vt. 442; Phelps v. Slades, 13 Vt. 195, and Comsloek v. Grout, 17 Vt. 512; Campbell v. Downer, 47 Vt. 599. Plea alleging a judgment upon a judgment attempted to be set aside is no bar to audita querela on the first judgment. 47 Vt. 599, supra. A judgment may be impeached for fraud or collusion. Chamberlain v. Preble, 93 Mass. 376.

J. C. Baker, for defendant.

The writ of audita querela is a judicial writ, and issued from the court having the record, except where it is brought upon the judgment of a justice of the peace, under section 1420 of the Revised Laws. Phelps v. Slades, 13 Vt. 195; Shumway v. Sargerant, 27 Vt. 442. The record which was offered was a record of the same court in which the trial was in progress. That record and the writ in this case are referred to, and show by the inspection that the writ in the present case is a copy, only changing dates of the writ in the prior case, and is brought to set aside the same judgment, and that there was a judgment in that case against the complainant. It is well settled that a former recovery may be shown in evidence under the general issue, as well as pleaded in bar. 1 Greenl. Ev. § 531. When a former adjudication is relied upon as having determined the entire controversy, it need never be pleaded as an estoppel, but is an equitable defense, and in many actions may be given in evidence under the general issue. Gray v. Pingry, 17 Vt. 419; Perkins v. Walker...