Chester v. Miller
Before: Baldwin
Synopsis
Equity has jurisdiction to vacate a judgment fraudulently altered, so as to include a defendant not served with process, and not originally included in the judgment.
No objection to this jurisdiction, that the judgment was on its face void; because the plaintiff was liable to be harrassed by it, and defendants were in the act of enforcing it.
When the record shows, in general terms, the appearance of parties, the appearance will be confined to those parties served with process.
If there be any rule requiring the payment of a debt, in judgment, or a denial of its justice, before a party, complaining of judgment without notice to him, can ask equity to vacate it, that rule cannot apply to the case of judgment rendered for a penalty under a penal statute.
An alteration by the Court, of a judgment, without notice, so as to include a party not served with process, if not void, is voidable at the election of the party.
Baldwin, J. delivered the opinion of the Court— Terry, C. J. concurring.
[560]Bill filed to vacate and set aside a judgment in an action of forcible entry and detainer. The bill states that judgment was rendered, by a Justice of the Peace, 3d September, 1856; that no process was served on the plaintiff, who was one of the defendants in that action; that execution issued on 5th of September, 1856, against the other defendants who had appeared, and that the defendants, finding that they could not make the money of those defendants, “some how” got possession of the Justice’s docket, and interlined the name of the plaintiff in the judgment, and also altered the execution by a like insertion, and are proceeding now to make the money on such process. The defendant, Wilson, demurred to this complaint. The Court below overruled the demurrer.
Afterwards the defendants answered the bill, and, on the trial, a decree was rendered for the plaintiff.
The evidence, on the trial, was conflicting as to whether Chester did or did not appear by Attorney.
1. The judgment, as originally entered, and the execution, as originally issued, were entered and issued as if he had not appeared, and seem subsequently, and without notice, to have been altered. The Judge below having found that there was no appearance for Chester, on this conflicting proof, we do not feel disposed to review his judgment.
2. The only other question is, as to the remedy. Has equity jurisdiction of this case? Though not very explicitly stated, the charges in the bill amount to a charge of fraud—the fraudulent alteration of records. The remedy by appeal might suffice in ordinary cases, if the record showed a want of service as to Chester; but it seems that Chester inquired if judgment had been rendered against him, and was informed that it had not— at least, there is proof to that effect. It was not until after execution of the writ of possession, that the alteration in the writ was made. Hor is there any proof that there was notice of this alteration to Chester until it was too late to appeal from this summary judgment. It will not do to say that the judgment on the face of it was void; the plaintiff was liable to be harrassed by it, and the defendants were in the act of enforcing it against him. (2 Story’s Eq. Sec. 887.)
3. It is said that the Attorney, Brocklebank, appeared for all
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