Hawley v. Mead

The opinion of the court was delivered by Veazey, J. This is audita querela to set aside a justice judgment rendered in a trustee suit. The defendant Hawley in that suit was set up in the writ as of St. Armand, Province of Quebec, and a copy of the writ was left with the trustee for him, and was served on him in no other way. The justice record shows that on the return day of the writ the defendant did not appear and was defaulted. The exceptions state that the County Court found upon parol evidence received under objection, that the defendant in the justice suit received from the trustee the copy of the writ left with him for the defendant from three to five days before the return day thereof, and in season to have appeared and defended said suit, if he had chosen to do so. In Kidder v. Hadley, 25 Vt. 544, the writ was served by the attachment of property and by leaving a copy in the hands of a person having the property in custody, for the reason, as stated in the return, that the defendant, at the time of the service, was in Canton, Mass. In that case Isham, J., says: “Upon these facts notice of the suit should have been proved before judgment was rendered, . . . and the fact that such notice was given should appear on the justice records ; otherwise the judgment will be vacated, unless recognizance for review was taken. The record in this case shows no such notice or recognizance, and it is not sufficient to prove such, notice in fact, on- a trial of this suit, as that will not aid the record of the justice.” As shown by Redfield, J., in Rollins v. Clement, 49 Vt. 98, the alternative mentioned by Judge Isham was probably an inadvertence. The statute has provided a method of obtaining a valid judgment against a party, upon whom .no service of the writ can be made by reason of his absence from the State, but in such cases the statutory requirements must be complied with. They are “ mandatory ” and “ imperative.” Rollins v. Clement, supra. And when [346] a judgment is attacked, the party who obtained it is concluded by the record as to whether the statute has been complied with. The court will not presume a compliance in the absence of express statement in the records, or find it from evidence aliunde the record. The statute directs one continuance where the service was such only as this case shows. After that it is in the discretion of the justice to further continue the cause for notice, “ unless the plaintiff satisfy the justice that the defendant had sufficient notice of the suit to enable such defendant to appear.” Gen. Sts. c. 81, s. 51. It does not appear from the justice record in this case that there was any continuance for notice, but the reverse ; neither that any notice in fact was given; neither that any recognizance for review was taken. The principles governing this class of cases have been repeatedly stated and discussed by the learned judges in the numerous cases cited by counsel on both sides, and recently by Redfield, J., in Rollins v. Clement, supra, and- taken together they fully cover this case. Judgment reversed, and cause remanded.