Atkinson v. Allen

12 Vt. 619

• Court: Supreme Court of Vermont
• Decided: August 15, 1839
• Status: Published

Opinion

The opinion of the court was delivered by

Redeield J.

— The fact that the county court suffered a juror to sit in the trial of the cause, who was legally incompetent, was no ground for arresting the judgment. It was undoubtedly good ground for a new trial; and, probably, would have been good ground for reversing the judgment on exceptions, or writ of error. Boardman v. Wood, 3 Vt. R. 570.

But the mere fact that a juryman sat in the case, on a former trial, or had formed an opinion, if he had not given a verdict,or in any other way expressed that opinion, constituted no sufficient ground of challenge. This is very satisfactorily shown by the Chief Justice, in the opinion delivered by him, in the case last cited, where he goes into an elaborate revision of the decisions upon this subject. The rule is adhered to in the case of French v. Smith, 4 Vt. R. 363. In the present case, it did not appear that the jurors had even formed an opinion.

The only remaining objection made to the proceedings in the court below is, that the plaintiffs were suffered to attack the judgment in favor of Charles Murray against Alpha Allyn, collaterally, by showing that it was not bona-fide, but colorable merely, got up by Allen to shield himself and his tenant, the defendant — Murray having no knowledge of the proceedings. It is obvious, that as the plaintiffs, and those under whom they claim title, had possession of the premises prior to Alpha Allen, and were forcibly ousted by him, they can upon this first seizin only, recover of Allen and all who have entered, either under him, or upon his possession, whether with or without his consent, unless they can shield themselves under a title older and better than that of the plaintiffs. This they attempted by force of the judgment in favor of Murray, the original proprietor, against Alpha Allyn, he being put out of possession and the present defendant and those under whom he claims title, being put in under color of this judgment. This judgment the plaintiffs were permitted to avoid, by proof addressed to the jury, in the manner above stated. As the plaintiffs were neither parties, nor privy to this judgment, and could have brought no process or suit whatever to reverse or set it aside, they must be permitted to avoid the effect of the judgment in this manner, if at all. The rule that a judgment of a court of competent jurisdiction is conclusive, until reversed or in some manner set aside and annulled, and that it cannot be attacked collaterally, by evidence tending to show that it was irregularly or improperly obtained, only applies to parties and privies to the judgment, who may take proceedings for its reversal, and in no sense extends to strangers.\It is obvious, if the facts found by the jury in this case are to be regarded, that the defendant is the tenant of Alpha Allyn, and has no more connexion with the title of Murray than if he had attempted to show title from him, by means of a forged deed. And it is not, for a moment, to be tolerated, that the rights of parties to the title of lands, are to be shifted and postponed, to their juniors, by merely colorable proceedings of this character. This mode of redress has always been allowed to strangers or third persons. Dutchess of Kingston’s case, 11 State Tr. 230. Crosby v. Leng, 12 East, 409. Lloyd v. Maddox, Moore, 917. 11 State Tr. 262. 1 Stark. Ev. 6th Ed. 259.

The judgment of the county court is affirmed.