Hinman v. Swift

[319] The opinion of the court was delivered by Bennett, J. The first question to be considered arises upon the defendant’s motion to dismiss. It is claimed, that the complaint was allowed and signed without any sufficient affidavit that the facts set forth' in it were true. It is said, that the affidavit must be appended to and become a part of the complaint. The provision of the statute is, that no writ of audita querela shall be állowed and signed, without affidavit first made by the complainant, or his agent, or attorney, that the facts set forth in such writ are true, and that he believes the same will be made to appear on the trial of the cause. The judge, who allowed this writ, certifies, that the facts set forth in it were sworn to; and an affidavit by the attorney was produced on the trial. The statute does not require the affidavit to be annexed to, or become a part of the process; neither does it provide for the custody of the affidavit. In practice it would be more correct to attach the affidavit to the process; but as the statute does not require it, we think it would be going too far to dismiss the action, because this had not been done. The minute of recognizance, if signed by the judge, by which it appears, that E. B. Burton was recognized, &c., is conclusive. It is matter of record and cannot be contradicted by parol. The plea in bar, we think, cannot be sustained. The case of Crawford v. Cheney, 12 Vt. 567, is decisive of this point. ' In that case it was held, that, where the justice, who issued the writ, was absent on the return day thereof, another justice, in order regularly to continue the cause, must appear at the place, where the writ was returnable, within the two hours, and there continue the cause, or the suit would be discontinued. In the present case this was not done, and the jurisdiction of the magistrate over the cause was lost. It was doubtless true, that the defendant in the audita querela was thrown off his guard, in respect to the manner in which the continuance wás entered; but we can see nothing, in the multifarious matter set forth in the plea, which could have the effect to reinstate the jurisdiction of the court, or prevent its loss. The judgment of the county court is affirmed.