Starkweather v. Loomis
| Decision Date | 01 March 1830 |
| Citation | 2 Vt. 573 |
| Parties | GERSHOM STARKWEATHER v. LEWIS LOOMIS |
| Court | Vermont Supreme Court |
New trial granted.
Wm Mattocks, for Starkweather.
Young of Colebrook, for Loomis.
Motion for a new trial.
Said Loomis heretofore commenced his action of debt on judgement against Starkweather, before a justice of the peace, and the action was appealed to, and tried in, the county court, and exceptions were taken to the decisions there, and carried up to the Supreme Court; and, after a hearing upon the exceptions, the Court came to a conclusion to affirm the judgement; yet did not suffer the affirmance to be then entered, but permitted the defendant to move for a new trial on the ground of surprise. That motion was filed, and lay till this term for a hearing and for the preparation of affidavits. These have been procured, and the motion concisely argued without any written briefs. The ground of surprise was this. The action was debt, predicated upon a judgement recovered by default before a justice of the peace in New-Hampshire. The counsel for Starkweather pleaded nil debet, relying upon impeaching the judgement as a foreign judgement, and, also, relying upon a case reported by Daniel Chipman, Esq. (see page 59, King, Adm'r of Ingersol v. Van Gilder,) to shew that justice's judgements do not come within the act of Congress; and that this judgement of the justice in New-Hampshire, must be treated as a foreign judgement. But, upon the jury trial, the record of the judgement was produced, certified by the justice; and the same contained the copy of the return of the officer on the original writ, which return was of a service in Coos county, in New-Hampshire, by a deputy sheriff of that county, stating, as to notice, that he handed a summons to the said Starkweather, & c. and when said Starkweather, in defending this action offered to impeach the original judgement, by showing that Loomis had no cause of action this was objected to and rejected, because he appeared by the record to have had regular notice of the suit in New-Hampshire, and ought to have made his defence there. This is the decision that was carried up on exceptions, and affirmed by the Supreme Court; yet the judgement of affirmance not entered, as before mentioned. Now, at this term, the affidavits of several of Starkweather's family and of the officer who served the original writ in New-Hampshire, abundantly show, that the only copy of the...
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Allen Macdonald v. R.J. Orton
...exceptions to this rule are to be found among our own cases. Webb v. State of Vermont, supra; State v. Williams, 27 Vt. 724; Starkweather v. Loomis, 2 Vt. 573. While these cases show the liberal construction that Court has given statutes relating to new trials, they are not authority for ho......
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Webb v. State
...upon authority of a reported decision of this Court, but was excluded by the trial court in overruling the decision, ( Starkweather v. Loomis, 2 Vt. 573); where respondent was advised by counsel that certain testimony against him would not be admitted, in consequence of which he omitted to ......
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Dodge v. Kendall
... ... So careful has ... the Supreme Court in this state been to prevent any injury to ... parties by surprise, that in Stark weather v. Loomis, (2 Vt ... 573,) the court say they " will grant a new trial as for ... surprise, when the evidence has been excluded, which was ... offered in ... ...