Kidder v. Hadley

The opinion of the court was delivered by Isham, J. The questions in this case arise, upon two bills of exceptions, one allowed on a motion to dismiss, the other on the trial of the merits of the case. The motion to dismiss was properly overruled. The only cause assigned in the motion, is the neglect of the judge signing the writ, and granting the supersedeas, to take a copy of the whole process and recognizance, and to cause the same to be filed in the office of the county clerk. That duty is imposed Upon the judge by the statute, page 292, § 8, but the consequence resulting from a neglect in the performance of that duty is not declared. The duty is not imposed on the party praying out the writ, and its performance is a matter beyond his control or direction ; the provision is not for his benefit, but for that of the defendant, the performance of which is made to rest personally upon the judge granting the writ., The act is therefore directory in character, and if any injury results from the neglect, it should not be visited upon those upon whom no duty was imposed, or obligation rested, for its'performance. The objections taken to the insufficiency of the recognizance, and the oath on the allowance of the supersedeas, are not properly before this court. No reference is made to those matters in the motion to dismiss; and from the exceptions, it does not appear, that any questions of that kind were raised or passed upon, in the trial of the case in the County Court. For these reasons, we think the motion was properly overruled. The judgment of the County Court, on the exceptions allowed on the merits of the case must also be affirmed. The judgment of the justice was evidently improperly rendered, and by repeated decisions of this court, the plaintiff is entitled to • relief under this process. The case of Marvin v. Wilkins, 1 Aik. 107, has always been considered the leading case upon this subject, and must be considered as decisive of this. In that case, it was held, that where a writ was served by copy, in the absence of the defendant, who was a resident of the State at the commencement of the suit, and the [549] return does not show notice, the plaintiff must prove such notice before judgment is rendered; and that fact must appear on the face of the justice’s record, or proceedings must be had agreeably to the 58th and 59th sections of the Comp. Stat. page 236; otherwise the judgment will be vacated on audita querela. The writ upon which this judgment was rendered, was made returnable on the 7th day of January, 1850, and served by the attachment of property, and by leaving a copy in the hands of one Ephraim Blodgett, who had the property in his possession and custody, for the reason, as stated in the return, that the defendant, at the time of the service of the writ, was in Canton, under an engagement for one year, and that his family resided in Windsor, in this State. Upon these facts, notice of the suit should have been proved before judgment was rendered, whether his legal residence was in Canton or Windsor; and the fact that such notice was given should appear in the justice records ; otherwise the judgment will be vacated, unless recognizance for a review was taken. The record in this case shows no such notice, or recognizance; and it is not sufficient to prove such notice in fact, on the trial of this suit, as that will not aid the record of the justice. The record, in fact, does not show any such notice, unless the appearance of Ephraim Blodgett, and his request for a continuance, will have that effect. But no such effect can be given to that appearance, as the justice states that he was then informed that he appeared without authority from Mr. Kidder, and that he did not profess to appear for him. The defendant in that suit, therefore, should not be concluded by that unauthorized act of Blodgett, and the case stands, as if no such appearance by Blodgett had been entered upon the records. The defendant in that suit has therefore evidently been deprived of his day in court, and the judgment was erroneously rendered, and should be set aside. The judgment of the County Court must therefore be affirmed.