Little v. Cook

*365 The opinion of the Court was delivered by Hutchinson, J.

John Little complains, in his audita querela, that he appeared, with his witnesses; the second term, for trial in his'action against Cook, the’ cause appearing of record or by the docket minutes, to be Open for trial'; yet the Court refused him a trial, and ordered judgment entered for Cook to recover his costs.

Also, that Cook has had his execution,, when the Court made no award of execution.

There is a general demurrer id this complaint, and joinder . in .demurrer. .. '

The last charge above námed, regards merely the form of the clerk’s entering and recording the judgment. -The Court usually, when judgment is rendered, say nothing about the execution, nor is it necessary they should, for it follows of course. It is the. right of the party recovering a final judgment, to have execution upon that judgment’. And, when the clerk records a judgment, technical form requires that he should add, “whereof he may have execution.” If the clerk should mistake and omit this in his record, he should add it as soon as he discovers the defect, just as he would correct any other defect in his recording the judgment. Judgments must not be reversed'for want of form in the recording. If the judgment was in fact according to the law of the case, the Court' should direct the clerk to make his record show it to be so".

In relation to the charge in the complaint, that the complainant was refused a trial, it appears probable, nor is it denied, that there was a hearing before the Court the first term, and the court wanted to consider of the subject during vacation, and the continuance was really for that purpose, but the entry made by the clerk was general, without adding “for judgment.” The second term, the Court rendered their judgment, refusing to hear further upon the merits. If these were the facts, the complainant had no reason to expect a further hearing in the cause, nor could he become entitled to it by the general entry of the continuance by the clerk. Suppose the clerk, by some misunderstanding, had entered the continuance under a rule to be defaulted the next term,- when the samewas not authorized by any order of Court or consent of the defendant. Such an entry would deprive the defendant of a trial upon the merits, and-of his appeal or review in the cause. Would the Court, in such a case, suffer the defendant to be bound down by such mistaken entry ? By no means. They ought, from their own knowledge, or satisfactory affidavits, to ascertain the facts, and order the entry to be corrected according to the facts. In the present case the Court must have known whether they had the subject urn der consideration, to form a judgment, and ordered a continuance for that purpose, or whether they ordered a continuance for a future trial; and it was their duty, the second term, to let neither party suffer by a mistaken entry of the clerk upon his docket.

Augustus Young and Joshua Sawyer, for the complainant. Geo. C. West and Isaac Fletcher, for the defendant.

But there is a different and very conclusive answer to this objection. The counsel for the defendant have correctly urged that the process] of audita quereia bears solely upon the acts of the opposite party, and not at all upon the judgment of the Court. The complaint should be, not that the Court rendered a wrong judgment, or refused to render a correct one, but that the party has done so and so, not warranted by his judgment, or has imposed upon the Court, and obtained a judgment without the complainant’s having his day in Court. If, in the present case, the Court had been of opinion that the defendant was not entitled to his execution when he obtained it, this complaint would have been a proper remedy. But, whenever the complaint is, that the Court did wrong, the party complaining must procure the facts to appear of record, either of course or by a bill of exceptions, and bring his writ of error. Or, in some cases, he may apply to the same ■ Court by motion for a new trial. In the last case, the Court may grant a new hearing in tolo. And, in case of the writ of error, the Court of errors reverses the erroneous judgment, and proceeds to render such a judgment as the lower court ought to have rendered. , In both cases the action is kept alive in Court, till legal justice has been done. While, on the other hand, a decision upon an audita querela, which complains of a wrong judgment, if such decision is in favour of the complainant, not only puts an end to that judgment, but drives the action out of Court, and there can be no more proceedings upon it. Moreover, the complainant, in this process, recovers of the opposite party his damages for the wrongful act complained of. The complaint sounds in tort, the proper plea is not guilty ; and damages are recovered of the one who has done the tort. From all this, it would seem to follow, that, if the wrongful act of the Court is complained of, the complaint should be against the Court, and the damages be recovered of the judges. For this no one will contend. This complaint is against the party recovering the judgment, and yet complains of the doings of the Court in rendering that judgment. For such a case this is not the proper remedy.

The clerk will enter a judgment of the Court, that the complaint is insufficient, and that the defendant recover his cost.

Skinnek, Ch. J. and Royce, J. were absent.