Laws

But an ad- ministrator Post Date: Fri, 1 Aug 2008 17:57:32 +0000
Grant's Case, 8 Abb Pr ( N Y Supreme Ct) 357 Denial of Relatio N The fact that the relation of attorney and client is denied by the attorney does not de- prive the court of jurisdiction to try the matter in this summary manneRState v Morgan, 80 Iowa 413 Com- pare Chevalon v Schmidt, n Ro b ( La) 91 ; Cottrell v Finlayson, 4 How Pr ( N Y Supreme Ct) 242; Wilmer- dings v Fowler, 14 Abb Pr , N S ( N Y Ct App) 249 has collected in his professional capacity will be overruled where there is a pending action against him involving his right to the mone Y 1 7 Partie S A summary application to compel an attorney to pay over money received in his professional capacity is enter- tained on motion of the client onl Y It is a privilege given to clients for their protection against exactions and overreachings, and is not extended either to outside parties or to assignees of client S The client is a necessary party to the proceeding, and it must be brought in his behalf 8 The Defendant to the summary proceeding is the lawyer who re- ceived the money ; all the members of a law firm need not be made parties when the charge is restricted to one of the member S 3 1 Deanz Bigelow( d C), 19 Wash L Rep 225; Cottrell v Finlayson, 4 Ho W Pr ( N Y Supreme Ct) 242 See Bohanan v Peterson, 9 Wen d ( N Y) 503; People v Brotherson, 36 Barb ( N Y) 662; Van Tassel v Van Tassel, 31 Barb ( N Y)43g; Co M v McKay (Ky, 1892), 20 S W Rep 276 If the client has proceeded to judg- ment in an ordinary action for money collected, it operates as a merger of the relation of attorney and client into that of debtor and creditor, and is a bar to a summary proceedin g Butch- ers' Union Slaughterhouse, etc, Co v Crescent City Live Stock, etc, Co, 41 La An N 255; Chevalon v Schmidt, ii Ro b ( La) 91; Cottrell v Finlayson, 4 How Pr ( N Y Supreme Ct) 242; Ex p White Sewing Mac H Co, 31 New Brun S 237 Contra, In re Grey, (1892), 2 Q - b 440 A proceeding by motion is no bar to a recovery in an action on the case for damage S Coopwood v Baldwin, 25 Mis S 129 2 Hess v Joseph, 7 Robt ( N Y) 609; Sloan v Johnson, 14 Smed M (Mis S) 47; People v Allison, 68 111 151, see Ex p Browne, 2 Colo553 And an attorney cannot by a sum- mary proceeding be compelled to pay money into court so that outside par- ties can litigate their right to it. Trammell v Shropshire, 22 Tex 327; Baldwin v Foss, 16 Neb 80 Administrator of Client. But an ad- ministrator of the client may have the benefit of the summary proceedin g Trammell v Shropshire, 22 Tex 327 Agent.

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Audita querela is a remedial Post Date: Fri, 1 Aug 2008 17:40:40 +0000
See the case of De Woolfe v , 2 Chitty 63, 8 E C L 251, where it was held that a summary ap- plication may be supported against an attorney by an agent, though he has no authority to receive; and the court will compel the payment into court for benefit of parties intereste d 3 Matter of Wolf, 51 Hun ( N Y) 407 Where an attorney has collected separate claims belonging to different persons, they cannot unite in one sum- mary proceeding against hi M Matter of Foster (Supreme Ct), I N Y Supp 619 I DEFINITION NATURE OF THE PEOCEEDIN g Audit a querela is a writ constituting the initial process in an action brought by an adjudged defendant to obtain relief against the consequences of the judgment on account of some matter of defense or discharge which has arisen since its rendition, and which could not be taken advantage of otherwis e 1 It is a regular suit, with its usual inci- dents, pleadings, issues of law and fact, trial, judgment, and erroR2 The complainant, however, relies on matters of fact and not of la W 3 The writ is directed to the court where the judgment 1 Bouvier L Diet ; Rapalje Law- rence L Diet; Bacon AbR, tit Audita Querela; 2 Broom Ha d Co M (Wait's e d) 290; 3 B L Co M 405; Freeman on Judgments, 95; Stamford S Barry, i Ai K ( Vt) 321, 15 A M De C 692; Long- worth v Screven, 2 Hill ( S Car) 298, 27 A M De C 381 The meaning of the phrase is thus explained: " It is a writ directed to the court, stating that the complaint of the defendant hath been heard, audita querela defendenti S" 3 B L Co M 405 It is said to have been first in- troduced into the English practice about the tenth year of Edward II I See Young v Collet, T Ray M 89 2 Avery v U S, 12 Wal L (U S) 305; Brooks v Hunt, 17 John S ( N Y) 484; Edmondson v King, i Overt. (Tenn)425 It is also said to be in the nature of an equitable suit in which the equita- ble rights of the parties will be re- garde d Lovejoy v Webber, 10 Mas S 103; Waddington v Vredenbergh, 2 John S Ca S ( N Y) 227, 3 B L Co M 406 Compare Williams v Roberts, 8 Hare 315 Sounds in Tort. Audita querela is a remedial process whi!h bears solely upon th e wrongful acts of the oppo- site party, and not upon the errone- ous judgments or acts of the court.

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Warner v Crane, 16 Post Date: Fri, 1 Aug 2008 17:27:26 +0000
It is a writ in which the plaint sounds in tort. Bracket! v Winslow, 17 Mas S 159; Lovejoy v Webber, ia was rendered and where the record remain S 1 It is a writ of com- mon right ; 2 an d even where authorized by statute, its applica- bility and incidents must be governed 'by common-law prin- ciple S 3 I I WHEN IT WILL LI e The writ will lie where a good matter of defense or discharge has accrued since judgment; 4 or before Mas S 103; Hadlock v Clement, 12 N H 68; Little v Cook, i Ai K ( Vt) 363, 15 A M De C 698; Eleventh School DiSt v Rood, 27 Vt 215; Sutton v Tyrrell, 10 Vt 87; Weeks v Law- rence, i Vt 433; Lamson v Bradley, 42 Vt 165; Dodge v Hubbell, i Vt 491; Betty v Brown, 16 Vt 669; Gris- wold v Rutland, 23 Vt 324; Peny v Morse, 57 Vt 509; Bradish v Redway, 35 Vt 424; Stanley v McClure, 17 Vt 253; Eastman v Waterman, 26 Vt 494; Titlemore v Wainwright, 16 Vt 173 But see Tyler v Lathrop, 5 Vt 170; Edwards v Osgood, 33 Vt 224 See also Spear v Flint, 17 Vt 497; Harriman v Swift, 31 Vt 385 Justice's Judgment S The following cases also hold that audita querela is the appropriate remedy to vacate a judgment rendered by a justice of the peace, where the justice does some act he has no legal right to do, or omits to do some act which it is his duty to d O Phelps v Birge, n Vt 161; Brown v Stacy, 9 Vt 118; Crawford v Cheney, 12 Vt 567; Hinman v Swift, 18 Vt 315 Also Pike v Hill, 15 Vt 183 But see Paddleford v Bancroft, 22 Vt 529, where it was held that in contemplation of the law the continuance of a suit is the act of the plaintiff Permissive Wron g Audita querela is an appropriate remedy also when the wrong of the defendant is rather permissive than actua L Comstock v Grout, 17 Vt 512 Also in cases where the justice has no jurisdictio N Hast- ings v Webber, 2 Vt 407; Ball v Sleeper, 23 Vt 573: Glover v Chase, 27 Vt 533- He cannot rely upon the record to show the grounds of his defense, but he must prove them by extrinsic evi- denc e 4 Minor InSt 945; Stone v Searer, 5 Vt 550 1 2 W M Saunders, 147, 148 a, note i; Harper v Kean, u S R(Pa) 299; Poultney v Treasurer, 25 Vt 168; Gleason v Peck, 12 Vt 57, 36 A M De C 329 See also Coffin v Ewer, 5 Met (Mas S) 228 Whence the Writ Issue S In Warner v Crane, 16 Vt 79, it was held that when the object of the writ of audita querela is to vacate any judgment or execution, it must, from the character of the writ, issue from the court where the judgment was rendere d Thus it has been held that the county court has no jurisdiction of a writ of audita querela which is brought to vacate or in any way affect a judgment rendered by the Supreme Court. Warner v Crane, 16 Vt 79; Ross v Shurtleff, 55 Vt 177 And in Shumway v Sergeant, 27 Vt 442, it was held that writs of audita querela are to issue from the Supreme Court when the record is in that court.

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Hawks v Bald- win, Brayt Post Date: Fri, 1 Aug 2008 17:17:21 +0000
2 Giles v Nathan, 5 Taunt 570; Lister v Mundell, iB p 427; Love- joy v Webber, 12 Mas S 102; Wordell v Eden, i John S ( N Y) 531, note; Emery v Patton, 9 Phi La (Pa) 125; Co M v Berger, 8 Phi La (Pa) 237 See also Brooks v Hunt, 17 John S ( N Y)48s; Gleason v Pec K 12 Vt 57, 36 A M De C 329 But the following cases hold that the writ is not one of right, and that it cannot be issued on an ex-parte appli- catio N Troop v Ricardo, 9 JuR N S- 887, 33 Beav 122; Viner AbR335; i Comyn Di g 789; Dearie v Ker, 7 d L 231; White v Clapp, 8 Allen (Mas S) 283; Waddington v Vreden- bergh, 2 John S Ca S ( N Y) 229; New- hart v Wolfe, 102 Pa St 561 See also Hunt v Brooks, 18 John S ( N Y)5- 3 Lovejoy v Webber, 10 Mas S 101; Brackett v Winslow, 17 Mas S 153; Staniford v Barry, i Ai K ( Vt) 321, 15 A M De C 692; Johnson v Plimpton, 30 Vt 420; Poultney v Treasurer, 25 Vt 168; Radclyffe v Barton (Mas S, 1894), 37 N E Rep 373 4 Ognel v Randol, Cro Ja C 29; Alford v Tatnel, 2 Mo d 49; Gil b C b 103 (3d e d); Ascue v Fuljambe, Cro Eliz 233; Turner v Davies, 2 W M Saun d 148, note i; Corbett v Barnes, Cro CaR443; Bryant v John- son, 24 Me 304; Thatcher v Gammon, 12 Mas S 270; Brackett v Winslow, 17 judgment, when the complainant had no opportunity to plead it for want of notice, 1 or, having notice, was deprived of the oppor- tunity by the collusion or fraud of the other part Y 2 It is a Mas S 158; Longworth v Screven, 2 Hill ( S Car) 298,27 A M De C 383; Baker v Judges of Ulster, 4 John S ( N Y) 191; Wardell v Eden, 2 John S Ca S ( N Y)258; Staniford v Barry, i Ai K ( Vt) 321, 15 A M De C 692; Fin- ney v Hill, 13 Vt 256 See also Coffin v Ewer, 5 Met (Mas S) 228 Compare Kimball v Parker, 7 Met (Mas S) 63; Lovejoy v Webber, 10 Mas S 101; Dodge v Hubbell, i 1491; Weeks v Lawrence, i Vt 433; Sutton v Tyrrell, 10 Vt 87; Scott v Larkin, 13 Vt 112 1 Staniford v Barry, i Ai K ( Vt) 321, 15 A M De C 692; Finney v Hill, 13 Vt 256; Stone v Seaver, 5 Vt 549 See also Dodge v Hubbell, i Vt 491; Sutton v Tyrrell, 10 Vt 87 Violation of Statutory Requirement. Where the defendant in an action, a nonresident, has no actual notice of the pendency of the suit, and judg- ment is rendered against him by de- fault, without any security by bond or recognizance being given for the re- payment of such sum as might be re- covered on review, this being made by statute a condition precedent to the issuing of execution, the defendant may have his remedy by audita que- re La Folan v Folan, 59 Me 566; Dingman v Myers, 13 Gray (Mas S) i; Marvin v Wilkins, i Ai K ( Vt) 107; Alexander v Abbott, 21 Vt 476; Whitney v Silver, 22 Vt 634; East- man v Waterman, 26 Vt 494; Har- mon v Martin, 52 Vt 255; Kidder v Hadley, 25 Vt 544; Hill v Warren, 54 Vt 73; Folsom v Conner, 49 Vt 5; Rollins v Clements, 49 Vt 98; Sawyer v Cross, 65 Vt 158; Hawley v Mead, 52 Vt 343 Compare Witterell v Goss, 26 Vt 748; Hamilton v Wilder, 31 Vt But not where an attorney, though unauthorized, has entered an appear- ance for hi M Spaulding v Swift, 18 Vt 214; Abbott v Dutton, 44 Vt 547 See Sheldon v Kelsey S Brayt ( Vt) 27 Conclusiveness of Officer's Certificate as to Servic e Where audita querela was brought on the complaint that the plaintiff had not been served with no- tice of a certain suit in which he was made defendant, it was held that the certificate of an officer on the back of a writ, showing legal service of the writ, is conclusive evidence that the writ was so served, as between the parties to that suit. Hawks v Bald- win, Brayt ( Vt) 86 In Collins v Merriam, 31 Vt 622, it was held that if the writ be served by leavinga true copy with the defendant, the fact that the name of the authority signing it is omitted in the copy will not of necessity defeat the effect of the service as a notice of the pendency of the suit and the trial day, nor consti- tute matter of Abatement 2 Eddy v Cochran, rAi K ( Vt)35g; Stone v Seaver, 5 Vt 549: Paddle- ford v Bancroft, 22 Vt 530; Barrett v Vaughan, 6 Vt 243; Little v Cook, i Ai K ( Vt) 363, 15 A M De C 698; Stani- ford v Barry, i Ai K ( Vt) 321, 15 A M De C 692; Kimball v Randall, 56 Vt 558 See also Coffin v Ewer, 5 Met (Mas S) 232; Wetmore v Law, 34 Barb ( N Y) 515; Dodge v Hubbell, I Vt 491; Weeks v Lawrence, i Vt 433; Eastman v Waterman, 26 Vt 495- Where suit for debt was brought against a person, and before the re- turn of the writ he paid the debt, which was received by the plaintiff in discharge of the action, yet the plain- tiff afterwards fraudulently brought the action and obtained judgment, and caused execution to be levied on the debtor's property, it was held that the debtor was entitled to an audita quere La Lovejoy v Webber, 10 Mas S 101 A party appellant against whom an affirmance of the judgment has been obtained by the appellee, without no- tice, and in violation of an agreement to arbitrate the matter and not carry up the appeal, will be relieved on au- dita querela, though he does not aver in his complaint that he had a good de- fense to the original actio N Eddy v Cochran, i Ai K ( Vt) 359 Although there was no intention on the part of the defendant to deprive the complainant of any right, yet if his acts had that effect they amounted in law to such legal misconduct as to entitle the complainant to relief by audita quere La Kimball v Randall, 56 Vt 558 proper method of obtaining relief in consequence of a discharge in bankruptcy subsequent to the judgment.

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nt, 18 Vt 247 4 Post Date: Fri, 1 Aug 2008 17:07:14 +0000
1 Where the legality of a debtor's imprisonment is affected by matter of discharge oc- curring after the judgment, it may be tested by audita quere La^ The writ will also lie to vacate a judgment rendered against an in- fant who was not represented by a guardian ; 3 or to obtain relief against a guardian in a secondary or collateral action, when the original action has been barred, reversed, or set aside ; 4 or to set aside a judgment irregularly entered after a discontinuance, or entered in contravention of an agreement for a continuance ; 5 or 1 Pettit v Seaman, 2 Root (Con N) 178, Baker v Judges of Ulster, 4 John S ( N Y) 191; Williams v Butch- er, i W N C (Pa) 304; Comstock v Grout, 17 Vt 512; Hunt v Brooks, 18 John S ( N Y) 5 See also Gordonier v Billings, 77 Pa St 502 Compare White v Clapp, 8 Allen (Mas S) 283; Faxon v Baxter, n Cus H (Mas S) 35 2 Pettit v Seaman, 2 Root (Con N) 178; Co M v Whitney, 10 Pic K (Mas S) 439; Gordonier v Billings, 77 Pa St 502; Comstock v Grout, 17 Vt 512 See also Hunt v Brooks, 18 John S ( N Y) 5 But see Gould v Mathew- son, 18 Vt 65 If a Prisoner on Execution procures his liberation under an agreement to surrender himself upon certain terms, and he executes such agreement, and is committed again on execution, he cannot have relief by audita quere La Little v Newburyport Bank, 14 Mas S 443; Coffin v Ewer, 5 Met (Mas S ) 228 3 Judd v Downing, Brayt ( Vt) 27; Starbird v Moore, 21 Vt 529 Com- pare Chase v Scott, 14 Vt 77; Barber v Graves, 18 Vt 290 Where Suit is Brought against Infant and Natural Guardian Conjointl Y A jus- tice's judgment against a minor is valid and cannot be set aside on account of his infancy, if his father and natural guardian was sued jointly with him and appeared and defended the suit. Wrisley v Kenyon, 28 Vt 6 Lunati C A judgment rendered against an insane person who has a guardian, but whose guardian was not notified of the suit, and who has no guardian appointed for him by the court, will be vacated upon audita quere La Lincoln v Fl-.nt, 18 Vt 247 4 Key v Ive, Cro Ja C 645, Ho b 162; Barnes v Wanlich, Yelv 59 (it lies for bail if the judgment against the principal is reversed); Wilson v Watson, Pet ( C C) 269 Suret Y If a sheriff recovers judg- ment against a surety for the escape of a debtor, and the creditor is barred by the statute of limitations of his remedy against the sheriff, the surety may be relieved from the execution by an audita quere La Hall v Fitch, I Root (Con N) 151 Foreign Judgment.

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13 Vt 240 2 Post Date: Fri, 1 Aug 2008 16:52:48 +0000
When a foreign judgment against the defendant has been reversed by the foreign appellate tribunal, but in the meantime he has been sued here on that judgment, he may have redress by audita quere L A Merchants' In S Co v Dewolf, 33 Pa_ St 45, 75 A M De C 577 Concurrent Suit S When two suits are brought at the same time for the same cause of action, and proceed part passu to judgment and execution* a satisfaction of either judgment may be shown upon audita querela in dis- charge of the otheRCorbett v Barnes , Cro CaR446; Bowne F Joy, 9 John S ( N Y) 221 But the pendency of a suit in a for- eign court or another state by the same plaintiff against the same de- fendant for the same cause of action is no stay or bar to a new suit brought her e Bowne v Joy, 9 John S ( N Y) 5 Judgment after Discontinuanc e Where a suit has been discontinued, either by agreement of parties or by operation of law, in consequence of ir- regularities, and the plaintiff, without the defendant's consent, afterwards proceeds and takes judgment by de- fault, the proceedings will be set aside by audita quere La Crawford v Cheney, 12 Vt 567; Pike v Hill, 15 Vt 183; Hinman v Swift, 18 Vt 315; Paddle- ford v Bancroft, 22 Vt 529 (see the doctrine of this case explained in Al- drich v Bonett, 33 Vt 202); Hawley v Mead, 52 Vt 343; Kimball v Ran- dall, 56 Vt 558 See also Brown z/ to set aside a judgment from which an appeal was wrongfully denied by the inferior court ;* or to set aside the judgment of a justice of the peace when he has no jurisdiction over the subject- matter ; a or to enforce a tender or compromis e 3 It may also be brought to annul an execution issued irregularly or without author- ity of law ; 4 or to supersede an alias execution, when satisfaction Stacy, 9 Vt 118; and Phelps v Birge, II Vt 161; Eastman v Waterman, 26 Vt 495 Compare Sisco v Parkhurst, 23 Vt 537 Where there are several defendants in an action ex contractu, and one de- fendant and the plaintiff agree to a continuance, and the justice enters the cause as continued without going to the place appointed for trial, neither party can avoid the proceed- ings by audi'ta quere La Scott v Lar- kin, 13 Vt 112 The judgment of a justice of the peace cannot be set aside on audita querela because he refused to continue a case on account of the sickness of a part Y Amidon v Aiken, 28 Vt 440 1 Tyler v Lathro P 5 Vt 170; Ed- wards v Osgood, 33 Vt 224 See also White v Clapp, 8 Allen (Mas S) 283; Harriman v Swift, 31 Vt 385; Spear v Flint, 17 Vt 497; Griswold v Rut- land, 23 Vt 325 Compare Bradish v Redway, 35 Vt 424 But in order to use the writ for this purpose it is necessary that the party should have fully complied with all the requirements of the law in re- gard to the perfecting of his appea L Finney v Hill ; 13 Vt 255; Harriman v Swift, 31 Vt 385 Audita querela to a justice's judg- ment will not be allowed unless the action was on its face appealabl e Scott v Darling ( Vt 1894), 29 At L Rep 993 Where the statute takes away the appeal from a justice's judgment, audita querela will not lie to set aside an erroneous judgment in malicious prosecution by reason of the penden- cy of the alleged malicious actio N Perry v Morse, 57 Vt 509 Where a justice of the peace ren- dered a judgment by default, and the defendant, within two hours after it was rendered, applied to the justice to erase the default and permit him to appear and defend the suit, and the justice refused to grant the applica- tion, it was held that audita querela was not the proper remedy to set aside the judgment. Potter v Hodge S. 13 Vt 240 2 Hastings v Webber, 2 Vt 407; Ball v Sleeper, 23 Vt 573; Glover v Chase, 27 Vt 533 3 Perry v Ward, 20 Vt 92 But where a petition for a writ of audita querela averred an agreement to accept a certain sum in compromise of a larger judgment, and an actual receipt of the greater part, with a ten- der of the balance, it was not error to refuse the writ Keen v Vaughan, 48 Pa St 477 A tender cannot avail the debtor for this purpose unless it is kept good and the money is brought into court; and the fact that the money is so brought in must appear affirmatively by the declaration in the audita querela, or it will be open to demurreRPerry v Ward, 20 Vt 92 The complainant brought an action before a justice of the peace, in which the justice rendered a judgment for the defendant for the recovery of his cost S From this judgment the plain- tiff appealed to the county court.

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Jenney v Glynn, 12 Post Date: Fri, 1 Aug 2008 16:42:18 +0000
Eleven days before the session of the county court to which the appeal was taken, notice was given in writing to the defendant by the plaintiff that he had discontinued the suit, and at the time of giving such notice the plain- tiff made a tender of *his costs to the defendant, which the defendant re- fused to accept. The plaintiff not en- tering the appeal, the defendant pro- cured the judgment of the justice to be affirmed, with additional cost S Held, that a writ of audita querela could not lie to set aside the judgment of the county court. Jenney v Glynn, 12 Vt 480 4 Irregular Executio N Where there is a regular judgment or a regular award of execution, and an execution is afterwards irregularly issued, the remedy is audita quere La Johnson v Harvey, 4 Mas S 485; Gridley v Hanaden, 14 Mas S 497; Stone v Chamberlain, 7 Gray (Mas S) 208; Phelps v Slade, 13 Vt 195; Porter v has been made wholly or in part on a prior executio N 1 Injury, or danger of injury, is essential to the maintenance of audita querela ; but it lies as well quia timet as for a judgment actually in executio N 3 Vaughn, 24 Vt 211 See also Dodge v Hubbell, i Vt 499 An execution which misdescribes the judgment as to sums is irregular, and may be set aside in this manneRWilson v Fleming, 16 Vt 649, 42 A M De C 531 It is no defense to audita querela that the execution issued by the mis- take of the clerk or attorne Y Phelps v Slade, 13 Vt 195 An execution issued by a justice of the peace and made returnable in a shorter time than the law allows may be set aside by audita quere La Hovey v Niles, 26 Vt 541 But an execution issued by a jus- tice, which is renewed by erasing the date and inserting a new date, after it has been delivered to an officer for collection, but before service has been made, and within its life, is not ren- dered thereby absolutely void, so that it may be set aside on audita quere La Sawyer v Doane, 19 Vt 598 When the creditor in an execution makes an unlawful use of it, and the use is burdensome and oppressive, in cases where such use can be set aside audita querela is a proper remed Y Fairbanks v Devereaux, 48 Vt 550 But the following authorities hold that audita querela is applicable rather to cases where the defendant is en- titled to relief against the judgment, than to cases of mere irregularity in the issuing of .

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I See also Giles v Post Date: Fri, 1 Aug 2008 16:29:25 +0000
an executio N Turner v Davies, 2 W M Saunders 148, note i; U S Bank v Jenkins, 18 John S ( N Y) 305 Wrongful Lev Y The writ of audita querela will also lie to vacate and set aside a levy of execution on land ir- regularly or fraudulently mad e Hurl- but v Mayo, i d Chi P ( Vt) 387; Hopkins v Hayward, 34 Vt 474, 36 Vt 318 Unauthorized Executio N An execu- tion issued against the body of the debtor, in a case not allowed by stat- ute, will be set aside on audita quere La Stanley v McClure, 17 Vt 253; Saw- yer v Vilas, 19 Vt 43; Stoughton v Barrett, 20 Vt 385 Where, upon a judgment rendered on a trustee process, an execution is issued against a trustee as a principal debtor, the execution is void and may be set aside by audita quere La Wilson v Fleming, 16 Vt 649, 42 A M De C 531- Where an execution issues against an administrator after a year and a day from the date of the judgment against the intestate, and without re- vival by scire facias, the irregularity may be corrected by audita quere La Hicks v Murphy, Wal K (Mis S) 66 Where referees make a conditional report, and the creditor sues out exe- cution contrary to the manifest intent of the referees, audita querela will li e Skillings v Coolidge, 14 Mas S 48 An award of execution upon a re- turn of scire fed forever concludes the defendant from any plea or defense; but when an execution is awarded upon two returns of nihil, the defend- ant may present his defense by audita quere La Barrow v Bailey, 5 Fla 9 1 Luddington v Peck, 2 Con N 700; Bracket! v Winslow, 17 Mas S 153; McRae v Davis, 5 Jones E Q (N Car) 140; Parker v Jones, 5 Jones E Q ( N Car) 276, 75 A M De C 441; Fairbanks v Devereaux, 48 Vt 550 See Baker v Tompson, 151 Mas S 390 2 Coke Lilt. 100 (B), p I 6; Turner v Davies, 2 W M Saunders, 148 a; Lathrop v Bennet, Kirby(Con N) 187; Bryant v Johnson, 24 Me 304; Coffin v Ewer, 5 Met (Mas S) 228; White v Clapp, 8 Allen (Mas S) 283; Dingman v Myers, 13 Gray (Mas S) i; Hadlock v Clement, 12 N H 68; Glover v Chase, 27 Vt 533; Phelps v Slade, 13 Vt 195; Stone v Seaver, 5 Vt 549; Harmon v Martin, 52 Vt 255 After praying out the writ the com- plainant is justified in pursuing the same until he knows he is in no dan- ger of the executio N Phelps v Slade, 13 Vt 195 But an audita querela quia timet will not be allowed to a purchaser of land until execution has been issue d Wad- dington v Vredenbergh, 2 John S Ca S ( N Y) 227 WHEN IT WILL NOT LI e A party is not entitled to relief by audita querela when he has had a legal opportunity to avail him- self of the matters of defense set forth in his complaint, or when the injury of which he complains is attributable to his own negle Ct 1 It will not lie where the matter of the complaint is a proper sub- ject for a writ of error; 2 nor for mere irregularities not going to the absolute validity of the process or the substantive merits of the controversy ; 3 nor upon matters which constitute a mere p I 10 Compare Lampiere v Mereday, I Mo d i N If the matter complained of is sim- ply nugatory and void, the party can have no need of the proces S Bryant v Johnson, 24 Me 304; Dane AbR186, art. I See also Giles v Hutt, 3 Exc H 18 It does not lie to prevent the en- forcement pf a judgment for nominal damages and costs, made after an arbitration in pais, wherein the award did not purport to dispose of the impending suit.

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(Tenn) 425; Perry v Ward Post Date: Fri, 1 Aug 2008 16:10:06 +0000
Merritt v Marshall, 100 Mas S 244 1 i Rolle AbR306; T Ray M 89; i Si d 43; Hanner v Mase, Ho b 283; Verew v, Carew, Moore 536; Avery r' U S, 12 Wal L (U S) 305; Lovejoy v Webber, 10 Mas S 101; Flint v Sheldon, 13 Mas S 443, 7 A M De C 162; White v Clapp, 8 Allen (Mas S) 283; Goodrich v Willard, n Gray (Mas S) 380; Faxon v Baxter, n Cus H (Mas S) 35; Barker v Walsh, 14 Allen (Mas S) 175; Foster v Stearns, 3 Vt 322; Tuttle v Burlington, Brayt ( Vt) 27; Staniford v Barry, i Ai K ( Vt) 321, 15 A M De C 692; Barrett v, Vaughan, 6 Vt 243; Lamson v Brad- ley, 42 Vt 165; Spear v Flint, 17 Vt 497; Finney v Hill, 13 Vt 256; Gris- wold v Rutland, 23 Vt 324; Johnson v Roberts, 58 Vt 599; Potter v Hodges, 13 Vt 239 Where the plaintiff, having ob- tained judgment against the defend- ant, releases it, and afterwards brings a scire facias, and the sheriff returns scire fed, but the defendant does not appear, and there is judgment upon it, the defendant cannot have an audita querela, for he had time to plead the release upon the return of the scire facias, and having neglected to do so, the law will not relieve him; and if in truth he was not warned, he has his remedy against the sheriff for a false retur N Wicket v Creamer, i Sal K 264; i L d Ray M 439; Day v Guil- ford, T Ray M 19; Cooke v Berry, I Wil S 98 See Thatcher v Gammon, 12 Mas S 270 Where the defendant had notice of the action, and employed an agent to answer for him and to appeal the ac- tion, and the agent did so, but failed to enter bail for the appeal, and there- fore execution issued held, that au- dita querela could not be sustaine d Finney v Hill, 13 Vt 255 Where a party paid the justice his fee for an appeal, and merely said that he would offer a certain person as bail, and that person afterwards en- tered the room where the justice was for the purpose of becoming bail, but nothing was then said by him or any one else in regard to his becoming bail for the appeal, and the justice failed to enter him as bail, and nothing more was done within two hours after judg- ment was rendered held, that audita querela would not lie to set aside the judgment of the justic e 'Harriman v Swift, 31 Vt 385 2 6 Dane 317, 21; Weeks v Law- rence, i Vt 433; Dodge v Hubbell, i Vt 491; Eleventh School DiSt v Rood, 27 Vt 214; Sutton v Tyrrell, 10 Vt 87; Stone v Seaver, 5 Vt 549; Spear v Flint, 17 Vt 497; Finney v Hill, 13 Vt 255 See also Hadlock v Clement, 12 N H 68 Nor is the rule affected by the fact that the writ of error is taken away by statut e Tuttle v Burlington, Brayt ( Vt) 27; Dodge v Hubbell, I Vt 491; Spear v Flint, 17 Vt 497 A writ of audita querela is not within the eleventh section of the statute of limitations, which requires writs of error, etc, to be brought within a year from the time the judgment is rendere d Stone v Seaver, 5 Vt 550 3 Sawyer v Doane, 19 Vt 598; Lamson v Bradley, 42 Vt 165; Betty v Brown, 16 Vt 669 See also Weeks v Lawrence, I Vt 433 Compare Ball v Sleeper, 23 Vt 573; Fairbanks v* Devereaux, 58 Vt 359 equitable defense, such as would not be cognizable at law j 1 nor to contest an erroneous taxation of costs or an allowance of greater interest than the law allow S 2 The defendant may be estopped from applying for this writ 3 Iv EFFE Ct The writ of audita querela does not per se stay proceedings on the execution during its pendency, nor will it operate as a supersedea S 4 The particular judgment complained of cannot be regarded as an estoppel upon the inquiry, but the whole subject is necessarily open to examination as a mere mat- ter inpai S* v PARTIE S All the parties to the judgment complained of 1 Schott v McFarland, i Phi La (Pa) 58; Garfield v University of Vermont, 10 Vt 536 Remedy in Equit Y Upon a demurrer to a writ of audita querela it was held that, where an execution has been is- sued from a court of law, this writ cannot be sustained to vacate the same or suspend its operation on the ground that it has been enjoined by a court of chancery, for the remedy is by application to that court. Porter v Vaughn, 24 Vt 211 2 Goodrich v Willard, u Gray (Mas S) 380; Edmondson -v King, i Overt. (Tenn) 425; Perry v Ward, 18 Vt 120; Clough v Brown, 38 Vt 179; Harriman v Swift, 31 Vt 385; John- son v Roberts, 58 Vt 599 See also Dodge v Hubbell, I Vt 491 The two cases last cited criticise and dis- tinguish Weed v Nutting, Brayt ( Vt) 28 See also Weeks v Lawrence, i Vt 433 In the absence of fraud the writ is not available to set aside a taxation of costs where no tender of the amount legally due has been mad e Rickard v Fisk ( Vt, 1894), 30 At L Rep 3 Estoppe L In an action of trover the plaintiff, upon default, entered up judgment for the alleged value of the property, without an inquiry or as- sessment; execution issued and the money was paid by the Defendant Held, that after payment of the money audita querela would not lie to set aside the judgment and executio N Hadlock v Clement, 12 N H 68 4 Turner v Davies, 2 W M Saun- ders 147, note, I48; Nuby v Jenkins, i Si d 351 ; Langston v Grant, i Sal K 92; Anonymous, 12 Mo d 105; Waddington v Vredenbergh, 2 John S Ca S ( N Y) 227; Hunt v Brooks, 18 John S ( N Y) 5 Emery v Patton, 9 Phi La (Pa) 125 Compare Phelps v Slade, 13 Vt 195 Material Effect in Recognizanc e In State v Wells, 27 Vt 277, it was held that a writ of audita querela, with the requisite certificate of the judge sign- ing it that it ought to operate as a supersedeas, will not so operate if in the recognizance taken by said judge a material condition required by statute is omitted, the statute being regarded as a limitation upon the power of the judg e Where it appeared that the execu- tion upon which the supersedeas was designed to operate had been levied upon the property of the complainants in the audita querela, and the recog- nizance taken by the judge granting the supersedeas contained a condition for the return of the property, if awarded, and for the payment of in- tervening damages, but did not con- tain a condition in default thereof for the payment of the debt, costs, and damages, it was held that this omis- sion rendered the supersedeas inoper- ative, and that the execution creditor might disregard it and take a second execution upon the original judg- ment.

Autor of the post: Undefined

He must still join Post Date: Fri, 1 Aug 2008 15:51:14 +0000
Perry v Ward, 20 Vt 92 5 Paddleford v Bancroft, 22 Vt 529; Hill v Warren, 54 Vt 73, which distinguishes Phelps v Parks, 4 Vt 488; Hawley v Mead, 52 Vt 343; Pike v Hill, 15 Vt 183; and criticises East- man v Waterman, 26 Vt 495 See Eastman v Waterman, 26 Vt 495, for opposite vie W Compare Kidder v Hadley, 25 Vt 544; Mussey v White, 58 Vt 45; Hawley v Mead, 52 Vt 343; Pike v Hill, 15 Vt 183 As this is a direct proceeding to set aside a judgment the rule against at- tacking judgments collaterally has no applicatio N Hill v Warren, 54 Vt 73- must join in the writ of audita querela or be regularly serve d 1 It is in general only available in behalf of one who was prejudiced by the judgment at its renditio N* And when the basis of the 1 Corbett v Barnes, Cro CaR 443; Williams v Roberts, i L M P 381; Mellon v Howard, 7 How (Mis S) 103; Herrick v Orange County Bank, 27 Vt 584; Gleason v Peck, 12 Vt 56, 36 A M De C 329; Titlemore v Wainwright, 16 Vt 173; Starbird v Moore, 21 Vt 529; Whitney v Silver, 22 Vt 635; Clark v Freeman, 5 Vt 122 See also Chase v Scott, 14 Vt 77 Judgment was entered by default against two persons without notice to either, and subsequently suit was brought on this judgment and judg- ment was obtained against one, on whom there was personal servic e Afterwards the other was sued upon the original judgment. It was held that audita querela to set aside the orig- inal judgment was properly brought in the name of bot H Godfrey v Dow- ner, 47 Vt 599 Nor is the rule altered by the fact that one of the defendants was a party to the fraud which vitiates the judgment. He must still join in the writ Titlemore v Wainwright, 16 Vt 173 But a joint action of audita querela cannot be maintained by a principal defendant and a trustee to vacate the judgments rendered against them re- spectively in a suit brought by way of trustee process, when their grounds of complaint are wholly different, and when the judgments, if vacated, must be vacated on different ground S Johnson v Plimpton, 30 Vt 420 The principal defendant and the trustee in a suit begun by trustee proc- ess joined in bringing audita querela for the purpose of setting aside the judgment therein of a justice, where- in they were severally adjudged liable on Default After the cause was re- ferred and heard by the referee and the evidence was all in, defendant for the first time objected to the joinder of the plaintiff S Held, that the agreement for the reference was a waiver of the right to obje Ct Harmon v Martin, 52 Vt 255 If, upon audita querela, a judgment against several persons be vacated as to one it must be vacated as to al L Starbird v Moore, 21 Vt 529 A release by one of two joint com- plainants in an audita querela is in law a discharge by bot H Braynard v Burpee, 27 Vt 616 If the audita querela be to recover damages for the wrongful act of the defendant, and the defendant die while the suit is pending, and commis- sioners be appointed on his estate, the suit must be discontinued and the claim for damages presented before the commissioner S Warner v Crane, 16 Vt 79 Where a judgment debtor has been compelled to pay the judgment by the assignee, he cannot maintain audita querela for the recovery of the amount so paid again by the judgment cred- itors, who had nothing to do with enforcing the judgment and who re- ceived nothing thereundeRRadclyffe v Barton (Mas S, 1894), 37 N E Rep 373- Against the Stat e This writ does not lie against the commonwealt H Co M v Berger, 8 Phi La (Pa) 237 And since it is a regular suit it can- not in any case be brought against the United States, as in England it could not against the crow N Avery v U S, 12 Wal L (U S) 304 2 Beard v Ketchum, 8 U C QB 523- A trustee against whom, upon judgment rendered on the trustee process, a void execution has issued may sustain audita querela to set aside such executio N Wilson v Fleming, 16 Vt 649, 42 A M De C 531 Attaching Creditor S Under the Vermont statute giving to subsequent attaching creditors a right to prose- cute audita querela only to contest a demand on which a -previous demand is founded, such creditors cannot maintain this writ, using the name of the judgment debtor against his con- sent to vacate a judgment execution and levy in favor of a prior attaching creditor, without showing a legal right to the property levied upon par- amount to the right of such creditoREssex Mi N Co v Bullard, 43 Vt 238 While an erroneous judgment against an infant remains in force this process will not lie in favor of an offi- cer against whom judgment has been recovered for neglecting to serve exe- writ is altogether personal it will die with the person and not survive to his representative S 1 V I SERVIC e The writ of audita querela must be served upon the parties made defendants to it.

Autor of the post: Undefined

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