Godfrey v. Downer

The opinion of the court was delivered by Redfield, J. This is a writ of audita querela to set aside an alleged fraudulent judgment in favor of the intestate against these plaintiffs. The “ cause of action ” is the taking of a judgment against Godfrey, without personal service of the writ, when he was without this state. Godfrey was admitted as a witness for the plaintiffs, against the defendant’s objection. Solomon Downer, the sole party plaintiff in the judgment alleged to have been fraudulent as to Godfrey, having deceased, we think that Godfrey is excluded as a witness, both by the letter and spirit of the statute. The exclusion of Godfrey as a witness, does not depend upon the character of his testimony. He might be called to prove that Downer agreed with him to discontinue said suit, and afterwards took a judgment in fraud of the agreement, and of the plaintiffs’ rights. This, in the language of Bennett, J., would not place the parties “ on an evener.” II. We think the writ counting upon this judgment, taken from the files of the court, was properly admissable as evidence, for the purpose for which it was offered. And as the whole record of said judgment was finally put in evidence, and was before the court, the exceptions as to that matter cannot be sustained. III. The defendant claimed, and requested the court to charge the jury, that the record was conclusive that there was personal service upon Godfrey, and such as gave the court jurisdiction of his person. The record recites that “ Solomon Downer commenced his action against said Campbell and Godfrey, by attachment of their property, with notice.” This might be true as to the attachment, and no service of the writ upon Godfrey, such as would give the court jurisdiction of his person. The distinction [657] between jurisdiction of property attached, and of the person of a defendant, is too familiar to the profession to be discussed. That Godfrey was without the state at the time of the attachment, and continued so until after the judgment, is not inconsistent with the record. But when a process is brought to inquire directly into, and correct or annul, a judgment for fraud, the inquiry is not to be baffled and the fraud covered, by any constructive conclusiveness of the record. Paddleford v. Bancroft Riker, 22 Vt. 529. Ch. J. Redpield says in that case, “When process is brought directly upon the judgment, the whole subject is, necessarily, open to inquiry, asa mere matter in pais.” What limitations, if any, there may be in such inquiry, this case does not require us to discuss. We find no error in the ruling of the court as to the record, or in the charge to the jury. Judgment reversed, and cause remanded.