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An involuntary non-suit takes place when the plaintiff, on being called when his case is before the court for trial, neglects to appear, or when he has given no evidence upon which a jury could find a verdict; in such case no verdict is given, but judgment of non-suit is rendered against the plaintiff.110

After issue has been joined, if the plaintiff neglects to bring such issue on to be tried in due time as required by the course and practice of the court in the particular case, judgment will be given against him for this default, and this is called a judgment as in case of non-suit.

3311. The judgment must be given by the judges of the court, and it was formerly pronounced in open court; but although it is still supposed to be so, this practice has been so generally relaxed that now, except in the case of an issue at law, there is no actual delivery of judgment in court or elsewhere. When the cause is in such a state that by the practice of the court the plaintiff or defendant is entitled to judgment, he obtains the signature or allowance of the proper officer of the court, expressing, generally, that judgment is given in his favor; and this is called signing judgment.

the same cause, it may often be advantageous to the plaintiff to suffer a voluntary non-suit. He may do so at any stage of the trial before the case is finally submitted to the jury, but not after verdict. Brown v. Harter, 16 Cal. 76; Chadwick v. Miller, 6 Iowa, 34; Clarke v. Wall, 5 Fla. 476; Long v. Thwing, 9 Ind. 179; Bogert v. Chrystie, 4 Zabr. N. J. 57; Templeton v. Wolf, 19 Mo. 101. In Illinois, the plaintiff may become ncn-suit so long as any material issue, as the assessment of damages, remains undetermined. Adams v. Shepard, 24 Ill. 464.

110 In all the states judgment by non-suit may be entered if the plaintiff does not appear when called. But in regard to involuntary non-suits after he has introduced evidence, the practice varies. In most of the states, as stated in the text, it will be ordered if the plaintiff's evidence is not sufficient to warrant a verdict. Beaulieu v. Portland, 48 Me. 291; Dean v. Fuller, 40 Penn. St. 474; Gardinier v. Otis, 13 Wisc. 460; Renwick v. LaGrange Bank, 29 Ga. 200.

It has been held that a non-suit may be ordered where the uncontradicted evidence of the defendant completely overthrows the plaintiff's case. Lomer v. Meeker, 25 N. Y. 361. But this is doubtful. Pillsbury v. Pillsbury, 20 N. H. 90. In some states the court cannot order a non-suit if the plaintiff has introduced any evidence. Byrd v. Blessing, 11 Ohio, St. 362; Castle v. Bullard, 23 How. 172; Williams v. Port. 9 Ind. 551; Hill v. Rucker, 14 Ark. 706. VOL. II.-20

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CHAPTER XVI.

PROCEEDINGS IN THE NATURE OF APPEALS.

3313–3318. The remedy by audita querela.

3314. The parties.
3315. The allowance of the writ of audita querela.
3316. In what cases audita querela lies.
3317. The pleadings in audita querela.

3318. The judgment in audita querela. 3319–3362. The remedy by writ of error.

3320. The writ of error coram nobis.
3321-3362. Writs of error.
3322–3341. The parties to proceedings in error.
3323–3335. By whom a writ of error may be sued.

3324. By a single person having the legal right.
3325. By privies.
3326. By bail.
3327. By remainder-men or reversioners.
3328. By a vendee of land sold pendente lite.
3329. Who may bring error in case of death.
3332. Who may bring error in case of marriage.
3333. Who may bring error in case of infancy.

3334. Who must bring error when several persons are interested. 3336–3341. Against whom error may be brought.

3337. When against a single person.
3338. Who is to be defendant in case of death.
3340. Who is to be detendant in case of marriage.
3341. Who must be defendants when several are interested.
3342. When writs of error may issue, and their form.
3343. Bail in error, when required.
3344. Return of the writ.
3345. Amendment of the writ.
3346. The quashing of the writ.

3347. Abatement of the writ. 3348–3350. The assignment of errors.

3349. Errors of fact.
3350. Errors in law.
3351. Pleas in error.

3353. The issue.
3354–3362. The judgment in error.

3355. When there are several dependent judgments.
3356. When there are several independent judgments.
3357. Reversal of judgment below.
3359. When a venire de novo is granted.
3360. Costs in error.
3361. The writ of restitution.

3362. The remittitur.
3363-3367. The remedy by certiorari.
3364. The mode of obtaining a certiorari.

3365. How the certiorari is to be returned.
3366. How far a certiorari operates as a supersedeas.
3367. When a procedendo will be ordered.
3367, a. The remedy by writ of review.
3368. The remedy by writ of false judgment.

3312. The judgments obtained in the manner above described, however regular their form, may nevertheless be erroneous, or the plaintiff or successful party may have done some act which would render it unjust that they should be executed. The law has given a power either to the same court where the judgment was obtained, or to a superior court, to revise the proceedings. These modes of reversion are principally five. They are: by audita querela, by writ of error, by certiorari, by review, and by false judgment.

3313. The object of issuing a writ of audita querela is to be relieved from a judgment or execution because of some injustice of the party who obtained it which could not have been pleaded in bar to the action. It is a remedial process, which bears solely on the wrongful acts of the opposite party, and not apon the erroneous judgments or acts of the court. In its form an audita querela is a regular suit in which the parties may plead, take issue on the merits; and on a judgment upon such suit, a writ of error may be brought. In this proceeding there must be proper parties, the writ must be allowed, there must be proper cases on which it lies, there must be pleadings, and a judgment.

3314. All parties aggrieved have a right to this writ, and the parties to the judgment and execution sought to be vacated, or their legal representatives, must be made parties to such writ. And where judgment against two is fraudulent as to one, both must join in bringing an audita querela to vacate it, notwithstanding one of the defendants was party to the fraud.* It lies also for bail when judgment is obtained against them by scire facias to answer the debt of their principal, and it happens afterward that the original judgment against the principal is reversed; for here the bail, after the judgment had against them, have no opportunity to plead this special matter, and they are therefore entitled to redress by audita querela.

3315. An audita querela is of common right and ex debito justitiæ, and need not be moved for, but the supersedeas upon it must be moved for, and it will or will not be granted according to the circumstances of the case.?' The audita querela must issue out of the court where the record is.8

3316. An audita querela is in the nature of an equitable suit, in which the equitable rights of the parties will be considered. It bears on the wrongful

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This writ is but little used, because in modern practice it is usual to grant the same relief on motion which might be obtained by audita querela. Baker v. Judges of Ulster, 4 Johns. N. Y. 191; Harper v. Kean, 11 Serg. & R. Penn. 290; Witherow v. Keller, 11 Serg. & R. Penn. 274. In Virginia, Smock v. Dade, 5 Rand. Va. 639. In South Carolina, Longworth v. Screven, 2 Hill, So. C. 298; and Tennessee, Marsh v. Haywood, 6 Humphr. Tenn. 210, the remedy by audita querela is obsolete. In Massachusetts and Vermont, it is regulated by statute. Stanisford v. Barry, 1 Aik. Vt. 321 ; Lovejoy v. Webber, 10 Mass. 101; Brackett v. Winslow, 17 Mass. 153.

? Brooks v. Hunt, 17 Johns. N. Y. 484.
3 Gleason v. Peck, 12 Vt. 56; Herrick v. Orange Bank, 27 Vt. 584.

* Titlemore v. Wainwright, 16 Vt. 173; see Melton v. Howard, 8 Miss. 103; Dane, Abr. c. 186, a. 1. It cannot be brought jointly by a defendant and trustee in trustee process, to set aside the several judgments obtained against them, the grounds of complaint being wholly distinct. Johnson v. Plimpton, 30 Vt. 420.

5 Rolle, Abr. 308.
6 Nathan v. Giles, 5 Taunt. 558; 1 Marsh. 226.

: Waddington v. Vredenburg, 2 Johns. Cas. N. Y. 227; Comyn, Dig. Audita Querela, E, 3 and 5. 8 Fitzherbert, Nat. Brev. 105, B.

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acts of the opposite party, and not on the erroneous judgments and acts of the court; it will not lie, therefore, where the cause of complaint is a proper subject for a writ of error, although the remedy by error may have been taken away by statute. 10

The party must have been injured, or be in danger of injury, in order to maintain this action. It lies to relieve a defendant against whom a judgment has been recovered, and who is, therefore, in execution, or danger of execution, although he has a right to be discharged by matter which has happened since the judgment; as, if the plaintiff has given the defendant a general release, or the latter has paid the debt to the former without obtaining satisfaction to be entered upon the record.2 It lies also where the matter of defence arose before judgment, and the defendant had no opportunity to plead it for want of notice, or, having notice, was deprived of the opportunity by the fraud or collusion of the other party."

In these, and the like cases, where the defendant is entitled to a discharge, and if he could have pleaded such matter, either at the beginning of the suit or puis darrein continuance, the judgment would have been rendered on the other side, an audita querela lies to give him that relief to which in equity the complaining party is entitled.

3317. In this writ, like a scire facias, the whole of the case is spread out; it is like a declaration, and it answers that purpose." A declaration, however, may be filed, and then it should recite the whole record of the recovery, and show a sufficient gravamen, or cause of complaint.

The proper plea to such an action is not guilty. 16

3318. The judgment is for damages against the party who is guilty of the wrong, and to redress the grievance of which the plaintiff complains. verdict found for the complainant, the court cannot give a judgment for the defendant non obstante veredicto,18 nor can there be a motion in arrest of judgment."

3319. When, in the course of the trial, an error has been committed as to a matter of law, which is not cured by the statutes of amendments and jeofails nor by the common law, such error may be cured or removed by a writ of error after a final judgment has been pronounced. In England, a writ of error, like an original writ, is sued out of chancery, directed to the judges of the court in

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• Weeks v. Lawrence, 1 Vt. 433; School Dist. v. Rood, 27 Vt. 214.

Dodge v. Hubbell, (í Vt. 491 ; Tuttle v. Burlington, Brayt. Vt. 27. 11. Bryant v. Johnson, 24 Me. 304.

12 Parker v. Jones, 5 Jones, Eq. No. C. 276; Glover v. Chase, 27 Vt. 533. Audita querela is the proper remedy to set aside a levy of execution on real estate when the officer has made a false return of the appraisal. Hopkins v. Hayward, 34 Vt. 474; or to set aside a judgment from which an appeal was improperly refused. Edwards v. Osgood, 33 Vt. 224; or to obtain relief from an execution issued for too large an amount by a mistake of the clerk. Stone v. Chamberlain, 7 Gray, Mass. 206.

13 Johnson v. Harvey, 4 Mass. 485; Smock v. Dade, 5 Rand. Va. 639; Wardell v. Eden, 2 Johns. Cas. N. Y. 258. But for any matter which might have been pleaded, the writ does not lie, as where the defendant neglects to plead his discharge in insolvency. Faxon v. Baxter, 11 Cush. Mass. 35; see Griswold v. Rutland, 23 Vt. 324. 14 Dane, Abr. c. 186, a, 1, 3.

Comyn, Dig. Audita' Querela, E, 6; Dane, Abr. c. 186, a, 1, % 20; Oakes v. School District, 33 Vt. 156.

16 Little v. Good, 1 Aik. Vt. 363; Lovejoy v. Webber, 10 Mass. 103.

! 1 Aik. 363; 10 Mass. 103; Brackett v. Winslow, 17 Mass. 159; Dane, Abr. c. 186, a, 1, & 20.

18 French v. Steele, 14 Vt. 579.

19 See Nathan v. Giles, 5 Taunt. 558. The writ of audita querela is now rarely used, as the relief sought by it may under the statutes of the different states be granted on motion. Chambers v. Neal, 13 B. Monr. Ky. 256; Job v. Walker, 3 Md. 129. The writ is not in use in Alabama. Dunlap v. Clements, 18 Ala. 778.

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which such judgment was given, and commanding them, in some cases, themselves to examine the record ; in others, to send it to another court of appellate jurisdiction, to be examined, in order that some alleged error may be corrected.

In this country, the constitutions of the several states vest in the supreme courts or courts of errors of each state respectively the supervisory power to revise the judgments of inferior courts. Writs of error issue out of such courts, directed to the inferior courts, commanding them to send the record into the supreme or superior court, to be there examined and decided upon according to law and justice.

A writ of error can be brought only on a final judgment, although the errors assigned may be such as have occurred at any stage. The refusing leave

? to amend, refusing to allow the plaintiff to dismiss, sustaining a demurrer, and an order for a new trial are not final judgments on which error can be brought.2 And matters occurring since judgment are not grounds for error, as the irregular issuing of an execution.22

The object of a writ of error is to reverse a wrongful judgment; it is brought by the party complaining of the judgment, whether he be plaintiff in the action or plaintiff below, or whether he be defendant in such action or defendant below. The party complaining of the alleged error is called plaintiff in error, and the opposite party defendant in error.

There are two kinds of writs of error: the one, as has been intimated, by which the judges are authorized to correct any error of fact which ought not to have been committed, called a writ of error coram nobis ; 23 and the writ of error which requires the inferior court to send the record into the superior court to be examined.

3320. In general, chere is no method of revising an error in the determination of facts but by a new trial, because the finding of the jury is conclusive ; and although a matter should exist which was not brought into issue; as, for example, if the defendant omitted to plead a release, which he might have pleaded, this is no error in the proceeding, it is only a mistake of the defendant. But there are some facts which affect the validity and regularity of the proceeding itself, and to remedy these errors the party in interest may sue out the writ of error coram nobis, so called because the record and process upon which it is founded are stated in the writ to remain “ before us,” that is, in the court in which the error remains, for this writ always lies in the same court where the record is. The death of one of the parties at the commencement of the suit; the appearance of an infant in a personal action, by an attorney, and not by guardian ; the coverture of either party at the commencement of the suit, when her husband is not joined with her, are instances of this kind.24 Again it has been decided that if the plaintiff in error die pending the writ, and the supreme court, notwithstanding, reverses the judgment, the defendant in error may bring error coram nobis there, upon this judgment of reversal, and assign the death of the plaintiff to the former writ as error.25 Such facts as

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20 Wallace v. Middlebrook, 28 Conn. 464; Cathcart v. Commonwealth, 37 Penn. St. 108.

21 Crawford v. New Jersey Co., 4 Dutch. N. J. 479; Newman v. Dick, 23 Ill. 338; Robinson_v. Morgan, 32 Mo. 428; Beatty v. Hatcher, 13 Ohio, St. 115; Doswell v. De la Lanza, 20 How. 29.

22 Lovell v. Kelley, 48 Me. 263.

23 It is doubtful whether the writ coram nobis exists in Wisconsin. Second Bank v. Upman, 14 Wisc. 28.

24 1 Saund. 101; 1 Archbold, Pract. 212; Stephen, Pl. 140; Day v. Hamburgh, 1 Browne, Penn. 75; Hurst v. Fisher, 1 Watts & S. Penn. 441; Kemp v. Cook, 18 Md. 130. 25 Rolle, Abr. 747. See Beall v. Powell, 4 Ga. 525.

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