Kimball v. Kelton

The opinion of the court was delivered by Yeazey, J. This petition is brought under the fraud, accident and mistake statute, so-called, Gen. Sts. c. 38, s. 7, to set aside a judgment of a justice of the peace rendered by default. It is a remedial statute, entitled to be liberally construed, and provides a remedy additional to any existing at the common law. The officer, the agent of the plaintiff in that suit, in serving the writ made the return day wrong in the copy delivered to the then defendant, this petitioner. The default grew out of this mistake. We think it is a plain case where the defendant “ was deprived of his day in court,” by “ fraud, accident or mistake ;” and that he is entitled to this remedy notwithstanding the return of the offi [179] cer on the original writ states that a true copy was delivered to the defendant, and although he might have a remedy against the officer for a false return. Mosseaux v. Brigham, 19 Vt. 457; Witherell v. Gloss, 26 Vt. 748. Judgment affirmed with costs in this-court.