John M. French v. James Steele, 14 Vt. 479

The opinion of the court was delivered by Williams, Ch. J. It appears, from the exceptions, that the plaintiff brought a writ of audita querela to be relieved from an execution in favor of the defendant, Steele, against him, which he alleged had been satisfied by a certain sealed contract, set forth, and a tender of a deed in pursuance of the terms thereof. On the trial, the plaintiff having offered evidence in support of his complaint, the county court directed a verdict for the plaintiff, but rendered a judgment for the defendant, on his motion, notwithstanding the verdict.

This proceeding of the county court is considered erroneous. Where a declaration is defective, or if, in this case, the complaint did not entitle the complainant to relief, the defendant should have demurred, or, if he proceeded to trial and a verdict passed against him, he might have moved in arrest of judgment, in which case no cost would have been taxed for either party, and the defendant could have proceeded with his judgment and execution. A judgment, veredicto non obstante, is never rendered for a defendant where he traverses the declaration.

It is rendered for a plaintiff when a verdict is found for the defendant on a plea confessing the action but setting forth a defence insufficient to bar the action, and which clearly shows that in any way of pleading the defendant has no merits. On the same principle it would seem that if a sufficient defence is pleaded and the plaintiff by his replication confesses the defence, but sets forth in avoidance matter wholly insufficient and immaterial, which is traversed, though the issue be found for the plaintiff, judgment should be rendered for the defendant. But the authorities are otherwise. Smith v.

Smith, 4 Wend. 468. Schemerhorn v. Schemerhorn, 5 Wend. 513. The judgment in such a case will only be arrested and the court may award a repleader if they think proper. The court have not been agreed whether the complaint sets forth sufficient to show a satisfaction of the judgment recovered by the defendant, Steele, against the complainant,. so as to entitle the latter to a judgment on the verdict.

No motion in arrest was filed in the county court, and such a motion is never filed in this court, nor do we ever determine upon the sufficiency of a declaration or plea unless the question has been raised in the county court. Our duty is, strictly, to review their judgment. Whether the plaintiff, by an amendment of his declaration, or the defendant, by the introduction of further proof, can obviate the difficulties which have been urged in argument, on either side, must depend on the future proceedings to be had in this case.

We only decide that 'the judgment of the county court must be reversed, the verdict, which was found in the county court, set aside, and the cause remanded to that court for trial.