Betty v. Brown

16 Vt. 669

• Court: Supreme Court of Vermont
• Decided: April 15, 1844
• Status: Published

Opinion

The opinion of the court was delivered by

Redfield, J.

This is an audita querela, brought to set aside an execution and be relieved from a judgment of a justice of the peace.

1. The court’s rendering judgment for the full amount of damages claimed, and granting an irregular certificate upon the execution, is so much the same question decided in Dodge v. Hubbell, 1 Vt. 491, that it is not necessary to spend time in regard to that point.

2. The fact that the writ was issued and served in December, 1840, and made returnable in January, 1840, is not such a defect as will render the judgment void. It is obvious that any defect in the previous process, which is amendable, will not render the judgment void. And, unless the judgment be void, clearly the defendant cannot be relieved, either from the judgment, or execution, by audita querela, and this defect is so obviously clerical, so easily understood by every one, that it would hardly be likely to mislead any one, — and did not, in fact, mislead the present plaintiff, as appears by the case. Under such circumstances, to suffer the judgment to be reversed, or the execution to be set aside, would be offering a premium upon litigation.

Judgment affirmed.