Shumway v. Sargeant

By the court, Redfield, Ch. J. This is a scire facias, brought on recognizance to this court. The first question made is, that this court have no authority to issue writs of scire facias. This objection is founded upon the statute giving this court power to issue writs of error, certiorari, mandamus, prohibition and quo warranto, ch. 28, § 5. But it is to be noticed, that these writs all pertain to that class denominated prerogative or supervisory writs, and all [442] have reference to proceedings in subordinate tribunals. But the writ of scire facias is one which pertains to all courts of record, as a judicial writ to carry into effect its own judgments. And all courts of record, unless prohibited, have the power to issue it. The writ is brought in this court every year, against bail on mesne process, and no doubt was ever entertained of the right of the court to grant the writ. I find no express authority in the statute for the county court to issue such writs, as a general thing it being incident to their general powers. There is no express statute giving this court authority to grant writs of audita querela; still, it has been held, if the record is in this court, that the writ is to issue from it. Accordingly it has been repeatedly sustained. Some of the cases are reported, and some not. Phelps v. Slades, 13 Vt. 195, was an audita querela, issuing from this court, as I well know, having granted the writ, and the case was sent to the county court, for trial on the general issues, and the case reported does not show very distinctly where the writ did originate. So too, Comstock v. Grout, 17 Vt. 512, is the case of an audita querela in this court, and continued for the pleadings to be closed in this court. We entertain no doubt of the general power of this court to issue writs of scire facias. It is objected, too, that the recognizance did not become a record in this court. But we think the ease of Carlton v. Young, 1 Aik. 332, must be regarded as settling the general question of recognizances taken in a case, finally ended in the supreme court, that they do thereby become matters of record in this court. But it was said this recognizance did not become matter of record anywhere, unless before the judge taking the instrument. But we entertain no doubt that, such recognizances become matter of record in that proceeding in the county court, the same as does any recognizance, taken by the authority issuing a county court writ. And we might have entertained doubt, whether it became matter of record, in the principal action, and did not end with the judgment granting the new trial, if it were not for the express provision of the statute, that the condition of this recognizance shall be forfeited, “if the petitioner shall fail to prosecute his application to “ effect, or finally to recover in such action” thus showing the expressed purpose of making it a security in the principal action. [443] And this conrt have held, too, I think, in case of these petitions, if allowed in the county court, questions of law could not come into this court, until the principal action was finished, thus treating the matter as all one action. Motion to dismiss overruled, and cause' continued for further pleadings.