Kimball v. Randall

56 Vt. 558

Opinion

The opinion of the court was delivered by

Taft, J.

I. The first question arises on the motion to dismiss. It is claimed that the recognizance given under R. L. sec. 1415, is defective. The recognizance was conditioned in .the exact words of the statute, and was therefore sufficient.

II. The other question is on a motion in arrest of judgment. ALudiia querela'bears solely upon the acts of the adverse party. Little v. Cook, 1 Aik. 363. It lies to vacate a judgment where the complainant was deprived of his day in court by the fraud of the defendant. Eddy v. Cochran, 1 Aik. 359. See Weeks v. Lawrence, 1 Vt. 437. The facts in this case, alleged and proven, were, that the justice was absent at the time and place •of the return of the writ. It is true he called at the office, but soon left, and was to have been notified if the complainant appeared. It was the duty of Durant to so notify her; buthe.too, left the' office, and the complainant, with her counsel and brother, repeatedly, but in vain, knocked for admission. . •

Although Durant did not intend to deprive the complainant of any right, his acts had that effect, and amounted in law to such legal misconduct as to entitle the complainant to the relief sought.

Judgment affirmed.