Harmon v. Martin

The opinion of the court was delivered by Veazey, J. The rule is established by repeated decisions in this State that where the judgment is by default against a defendant who was without the State when the writ was served, and is without notice to him, and the plaintiff enters into no recognizance to refund upon a writ of review, as required by statute, Gen. Sts. c. 31, s. 52, the defendant is entitled to have the same vacated upon audita querela; and this remedy exists notwithstanding the statute providing a remedy by petition for new trial; Alexander v. Abbott, 21 Vt. 476 ; Whitney v. Silver, 22 Vt. 636 ; Kidder v. Hadley, 25 Vt. 544; and although no execution has issued ; Stone v. Seaver, 5 Vt. 546, 553 ; Glover v. Chase, 27 Vt. 533. The record of the justice does not show, and it is not claimed, that the defendant had notice in fact before the default. No recognizance for review was taken. But the defendant in this suit insists that audita querela will not lie in favor of the principal debtor and trustee jointly to vacate the judgments rendered against them severally in a trustée action ; and he cites Johnson v. Plimpton, 30 Vt. 420, in support of this proposition. . Whether the law as announced in that case applies to this case is not material to determine. The question came up in that case on demurrer. The ground of objection now insisted upon was as apparent when the writ was served and entered in court as it is now; yet the defendant did not raise the question in any form, but agreed to a reference, and made no allusion to a misjoinder until he made it in argument to the referee after the testimony was all in. No exception was filed in the County Court to the report of the referee, but judgment was rendered thereon, to [258] which the defendant excepted. Under these circumstances, he now claims that the misjoinder is fatal. We think he was too late in raising the question; In Maxfield v. Scott, 17 Vt. 684, where it was held that a reference was a waiver of the question of jurisdiction, Hebard, J., says : “ It would be inequitable and unjust for the defendant to experiment upon the merits of the plaintiff’s claim, before a tribunal created by the parties for the express purpose of taking a more equitable view of the case than would be consonant with rules and legal forms of proceeding before the court, and, when unsuccessful there, to throw himself back upon a defect that was apparent in the outset, and which might have been taken advantage of before the expense of litigating the merits of the case had been incurred. . . . The effect, in short, of this reference, as of all others, is to waive all those questions of formality and technicality that otherwise might have been insisted upon, and transfer the matter to a different tribunal, which only takes cognizance of the merits of the controversy.” This case is cited with approbation by Redfield, G. J., in Briggs v. Oakes, 26 Vt. 138, also by Aldis, J., as decisive of Reed v. Stockwell, 34 Vt. 206. Without citing further from the numerous cases in our reports, where a reference by agreement has been held to constitute a waiver of defences that might otherwise have been made, we think it no extension of the doctrine to apply it against the defendant in this case. It is by no means clear that if the case had not been referred, but had been tried by the court on the pleadings as they stand, no demurrer or plea in abatement having been interposed, we should not have been led to the same determination of the case on other grounds. See Bartlett v. Boyd, 34 Vt. 256 ; Wing v. Cooper, 37 Vt. 169; Gould Pl. c. 5, s. 106. But as the case stands and was presented on the briefs, we rest it on the ground above indicated. This view renders it unnecessary to pass upon other questions referred to in the briefs. Judgment affirmed.