Aldrich v. Bonett

Rbdeield, Ch. J. It is claimed that this case is controlled by what is said in Paddleford v. Bancroft, 22 Vt: 529: “ That the continuance of a cause upon the suggestion of the plaintiff and without any legal ground for such continuance will operate as a legal discontinuance of the action and no valid judgment could be thereafter rendered.” This was unquestionably the rule of the common law, and generally exists in this country, probably. But it is one of those mere informalities, which is generally matter of error, and for such mere matters of error and informality, audita querela will not ordinarily be sustained, unless the defendant is thereby subjected to some injustice or wrong. And what is said in Paddleford v. Bancroft, in general terms, that such judgments will be set aside on audita querela, must be limited to cases of similar character to the one then under consideration, where the irregularity is attempted to be set up, not only as valid and good, in law, but for the purpose of depriving the other party of a defence, which he would have enjoyed, if the judgment had been entered at the proper time, as a discharge in bankruptcy. But in the present case there is nothing' of this character. There is no injustice attempted upon the complainant. The defendant had made proper service of his writ, and the complainant had given notice of defence. The return day of the writ had arrived, the action was properly entered and answered to on the part of the plaintiff in that suit. He had every reason to expect that the present complainant would appear and demand a trial, as he had said. But from the sickness of his own family he could not wait. He then procured a continuance»just as he supposed the complainant would desire, treating his assertion that he desired a trial as a fact, and bona fide acting upon it. This was certainly doing no intentional wrong to the complainant and no technical wrong, except that in strictness the suit might have been entered defaulted and continued for assessment of damages. We do not regard this irregularity as any sufficient ground for maintaining 205 this proceeding. It seems to ns that the complainant’s conduct in giving notice of defence, lead to all the irregularity which occurred, and to allow this suit to prevail, would he to punish the defendant for an error into which he was naturally led by the complainant. It seems to us the same in principle, as the case of Scott v. Larkin, 13 Vt. 112, where the parties agreed to a continuance, out of court, which was entered on the files, without either party, or the court, being present, at the time set for trial, and audita querela was denied.' Judgment affirmed.