Gray v. Parker

Decided March 15, 1844

Supreme Court of Vermont · decided 1844-03-15

<p>If a writ be abated, on the ground that there is no such person as the plaintiff, no judgment can be rendered for costs.</p> <p>If, in such case, an execution for costs be issued against the persons in whose names the suit was intended to be brought, such execution is void, and will be set aside on audita querela.</p>

Cited by 1 later decisions — most recently January 1845

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1844-03-15

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¶1The opinion of the court was delivered by

Redfield, J.

¶2This case is, in effect, settled by the judgment which has just been pronounced in the case of Wilson et al. v. Fleming, ante, p. 652. For, in the very case, in which it is claimed the judgment, upon which this execution issued, was rendered, it was, after repeated arguments and consultations, most solemnly determined, upon the defendants’ plea, that there was no such person in rerum natura as “ Gray, Drew & Co.;” and that these plaintiffs were not, and could not become, parties to the record. Of course, then, no judgment could be rendered against them for costs. If any such judgment was made up by the clerk, it was void, and so is the execution issued upon it, — and it must be set aside.

¶3Judgment that the declaration is sufficient, and that the execution therein described be set aside, and the plaintiffs recover their damages and costs.