Collins v. Merriam

Bennett, J. The grounds relied upon to sustain this audita querela are, first, a want of notice of the pendency of the suit before the justice, and second, a discontinuance of the suit before the justice prior to the rendition of the judgment. The return of the person deputed to serve the writ, which is [624] sworn to, states that he delivered to Collins a true and attested copy of the writ, with his return on the original writ indorsed thereon. Suppose there was an omission to annex the name of the magistrate who signed the writ to the copy. I apprehend this would not defeat the effect of the service as a notice, and under our decisions would not constitute matter of abatement. Besides, the question of notice was a question of fact, and this was found by the county court. We can not say that the county court gave credit to the testimony of -Merriam, that the name of the justice was not annexed to the copy. In regard to the discontinuance of the suit, it is clear there was testimony tending to prove a continuance of the suit by assent of the defendant, and this was matter to be passed upon by the county court., A subsequent assent to the continuance would be sufficient to prevent a discontinuance. The judgment of the county court is affirmed.