Tyler v. Lathrop

5 Vt. 170

• Court: Supreme Court of Vermont
• Decided: December 15, 1832
• Status: Published

Opinion

The opinion of the Court was pronounced by

Hutchinson C. J.

We think the appeal ought to have been allowed. The Statute, see p. 139, allows appeals generally, and adds provisoes, one of which is, “that no appeal shall be allowed in any action, brought on notes or settled accounts, if such notes or settled accounts shall not exceed the sum of twenty dollars.” This has no reference to the sum remaining due upon such notes, like the Statute, which regulates the original jurisdiction of Justices, 0f the Peace. The action is appealable, if the note, or notes exceed the sum of twenty dollars. Such was the case this original action.

Adams, for defendant. X), A. Smalley, for plaintiff.

The defendant’s Counsel suggested, in argument, that an Jludita Querela was not the proper remedy, even if the appeal ought to have been allowed. But this Court have long since sanctioned this remedy. The party, entitled to an appeal, has a right to a hearing in the County Court, upon the merits of his cause. Of this he is deprived, by a refusal to allow an appeal. Moreover an appeal vacates, or at least, suspends, the judgement. By denying the appeal, the judgement remains in force, and execution issues. No other remedy was provided by our laws, till a late Statute, which allows a petition in the nature of an Audita Querela, but without its exact ceremonies, as a remedy for this, and some other cases, named in that Statute. The Audita Qtuerela, as long used in such a case, is an apt remedy for such an aggreivance, because the party aggrieved is liable to execution, without having had his full day in Court; and because this writ may be made a su-persedeas to such execution.

The judgement of the County Court is affirmed.