Gleason v. Peck

The opinion of the court was delivered by Collamer, J. Audita querela is a judicial writ. Former [59] ly it was issued only in discretion, but afterwards was sued out of chancery ; but must always be to the court having the record. Its purpose is to set aside a judgment or execution, and therefore, like scire facias, error, certiorari and all other judicial writs, it must be between the parties to the former proceeding. Here neither of the defendants in this suit was a party to the judgment or execution; and, of course, no judgment Gould be rendered to operate on the judgment or execution, and therefore no damages which, by our statute, are incident to such judgment, could be given. It is said the action could not have been against the administrator, as he was in no fault. That is not true. If the administrator undertook to take charge of, and receive pay on the judgment, it was his duty to control the execution and his neglect of this was a fault, and for this fault, and in conformity with law, he, as the legal representative of the creditor in the execution, was the proper person to have been pursued by the present plaintiff; or application should have been made to the court to supersede and set aside the execution as improperly issued. It is insisted that the county court did wrong in rendering judgment for all the defendants, when the facts alleged in the complaint were fully proved, at least, against one of the defendants. Had the issue been to' the jury, the verdict must have been against such defendant, and then, on motion in arrest, judgment would have been arrested. But as the issue was to the court, who do not render a verdict, and as no motion in arrest was made, and as any judgment for the plaintiff would have been erroneous, for want of any proper party defendant, there seems to have been no other course left to the court but to render judgment for all the defendants. Judgment affirmed.