¶1The opinion of the court was delivered by
¶2The first question made in the present case, that the files in the former «ase between the parties were admitted in evidence in this case, together with the minutes made thereon and signed by the justice, and also the second objection, that the justice was improperly admitted to testify in relation to the manner of such minutes being made and by whom made, seem based upon the same general ground, viz., that the judgment is conclusive and not to be examined. But it seems tous, that when audita querela is brought, alleging the fraudulent misconduct of the party in obtaining a judgment, the judgment itself cannot be regarded as an estoppel upon the inquiry. If so, the remedy would in most cases be wholly unavailing. The conclusiveness of a judgment only extends to collateral attacks. When process is brought directly upon the judgment, whether by way of bill in equity, claiming a new trial, or a perpetual injunction, on the ground of the misconduct of the party in obtaining the judgment, or on petition for new trial, or on petition for rehearing, under our statute, or in cases like the present, the whole subject is necessarily open to inquiry, as a mere matter in pais.
¶3In many cases of audita querela, which have been determined by this court against the sufficiency of the judgments of inferior courts, when those judgments have been reversed and vacated and the parties placed in statu quo mite helium, an objection of the character above alluded to, if sustained, must have precluded all inquiry. Eddy v. Cochrane, 1 Aik. 359, in effect decides this; and the following cases are full authority upon this point, Brown v. Stacy, 9 Vt. 118; Phelps v. Birge, 11 Vt. 161 ; Crawford v. Cheney, 12 Vt. *536567. In Pike v. Hill, 15 Vt. 183, something is said, which is calculated to give the impression, that the court hold a judgment, which is attempted to be vacated by audita querela, equally conclusive, as against that remedy, as when attacked collaterally. But that point was not then before the Court. The record of the court below, in that case, showed the defect complained of, and the other party offered to show, that the record was false in that particular, for the purpose of sustaining the judgment, and the court held, that the party must be bound by the record as it stood. This is no doubt true in all cases. It involves an absurdity, a solecism indeed, to sustain a judgment, or record, by showing its falsity. The sufficiency of all records is to be determined upoh inspection; and, if not sufficient upon their face, they cannot be eked out by parol evidence. But that question is wholly distinct* from that of the conclusiveness of a judgment, when process is brought directly upon it; and this distinction is not sufficiently adverted to, by me, in the case last named.
¶4If this case were really continued, without the appearance of the the defendant, and without his consent, and with no statutory or other legal ground for such continuance, then it was, in strictness, discontinued, and no legal judgment could thereafter be taken in the case, without the consent of the defendant; and if one be taken, after the suit is so discontinued, it will be vacated by audita querela, as has been repeatedly decided by this court. This point was expressly ruled in Pike v. Hill, supra,and indeed in most of the cases above cited. So that the continuance of a suit from term to term, without the consent of the defendant or other just cause, does always discontinue the suit. And this is always, in contemplation of law, the act of the plaintiff. If the plaintiff choose to keep his suit upon the docket from term to term by continuances, it is a matter into which the court never looks. That is matter of course and always of mere routine, if indeed it be not provided for, by the general rules, to be entered by the clerk, without coming, in form even, to the knowledge of the Court.
¶5But especially when it is shown, that no good reason did exist for these continuances, and that a corrupt, or interested and unlawful one was apparent, and which was fully adequate to produce the result, it would be unphilosophical, we know, not to attribute the re-*537suit to the adequate cause. And in the present case, in addition to the legal discontinuance of the cause, by carrying it forward in court, by continuances without cause, the effect of having the judgment bear so late a date is to deprive the defendant of a sufficient legal and equitable defence, which would have been conclusive in his favor, unless impeached for fraud, had the judgment borne its proper date. We think, then, that the defendant has thus, in effect, been as truly deprived of his day in court, his reasonable opportunity to make defence, as if he had never known of the day of court, in the first instance, as in Stone v. Seaver, 5 Vt. 549, or as if he had in any other mode been deprived of his proper day in court, by the fraud and circumvention of the other party, which has always, in this state, been held sufficient ground to vacate the judgment, so obtained, upon audita querela, — which in similar cases, in other states and in England, is more commonly done in the court of chancery perhaps. The case cited from 17 Conn. 531, seems to run with the present quatuor pedibus.
¶6The charge to the jury seems to us entirely correct and in accordance with the principles above stated. And for the same reasons, the motion in arrest was properly overruled.
¶7Judgment affirmed.