Perkins v. Cooper

28 Vt. 729

• Court: Supreme Court of Vermont
• Decided: April 15, 1856
• Status: Published

Opinion

The opinion of the court was delivered by

Redeield, Ch. J.

The county court made this case finally turn upon a single point, whether the justice judgment, sought to be set aside, was taken when the present plaintiff supposed the suit would be discontinued, and when this defendent knew that was his expectation; or in other words, when the parties had agreed the suit should be discontinued.

If this point properly arises upon the declaration, it seems to us decisive of the case. For no principle is better settled, perhaps, than that a judgment entered up in a justice court, under such cir1 cumstances, may be vacated upon audita querela. It is regarded as obtained by mere fraud. And whether Steele’s promise to submit was direct and absolute and original, or only collateral; or whether an action could have been maintained upon it, and if so, whether the whole debt could have been recovered by way of damages, is not important. If Cooper knew that Steele relied upon the submission as a discontinuance of the suit, it was none the less a fraud in him to take judgment upon his claim in violation of such confidence, because his reliance upon the arbitration was not a sufficient security for his debt. It was his folly to make such an arrangement. But having made it, he was no more at liberty to violate its true spirit because it was unequal. This inequality might have been good ground for inducing a jury not to find the fact of his consenting to have the suit discontinued. But it was surely no ground for excusing the violation of the confidence created by the transaction.

We might possibly infer that the jury made rather liberal presumptions in regard to the understanding of the parties, or we might possibly think of some other suggestions which might properly enough have been made to the jury. But none of these are any sufficient ground for a new trial in the case upon exceptions. The only question is, whether the law was correctly stated to the jury. And we have said that it was.

II. Upon the point, whether the question submitted to the jury properly arises upon the declaration, it is alleged that the plaintiff believing the suit was not to be entered in court, did not attend to defend the same, and in consequence of such absence the defendant fraudulently procured judgment, by default. After verdict all presumptions are to be made in favor of the declaration, and of the construction adopted by the court and jury below. And especially is this to be done, where the particular objection now urged was not specifically stated at the trial. Under this view, we think the statement in the declaration is to be understood that the plaintiff absented himself from the trial under the expectation and confidence that the suit was to be discontinued, and that defendant, knowing that he acted upon that confidence, procured judgment to be entered by default. This was the very point submitted to the jury and being found by them is, we think, decisive of the case.

Judgment affirmed.