Shearer v. Boyd , 10 Ala. 279 ( 1846 )

GOLDTHWAITE, J.

1. In the English courts of common law, the practice, when an execution has issued improperly, is, to obtain a judge’s order to stay proceedings, until the defendant can submit a motion in court; (Tidd’s Prac. 511;) and this summary mode of redress by motion, it is said, obtains in all cases, when it would be allowed by audita querela. [Ib. 212.J With us, the matter, to some extent, is regulated by statute, which directs the allowance of a supei'sedeas, on application to a judge at Chambers, whenever an execution has improperly issued. [Dig. 208, § 38.] This statute was at first considered as extending only to cases where the execution issued irregularly. [Fryor v. Austil, 2 Stewart, 120; 3 S. & P. 345; 3 Ala. Rep. 668.] Subsequently, however, it has been held to apply to all cases where executions are improperly sued out, whether on account of mere irregularity or because the plaintiff has no just right to enforce process. [Lockhart v. McElroy, 4 Ala. Rep. 572; 7 Ib. 469.] The practice under our statute is, to consider the petition to the judge, as the allegation of facts out of which the party predicates his claim for redress, and as such it may be pleaded or demurred to. [Spence v. Walker, 7 Ala. Rep. 568; Mabry v. Herndon, 8 Ala. Rep. 848.] Even when the superdeas is quashed, as having improvidently issued, we have held it did not impair the right of the party to interpose the motion necessary for his relief, and that the petition might be con-considered as such a motion. [Osweetchee Co. v. Hope, 5 Ala. Rep. 629.] This summary of the statute, decisions, and practice upon this subject, is sufficient to show the petition is regarded as the commencement of a suit, and on its determination costs are due to the successful party, in the same manner as in any other suit.

2. Another consequence likewise flows from considering the petition as a suit, and that is, that the petitioner cannot seek relief in more than one cause. In other words, although a suit, yet it is so connected with previous proceedings, with regard to which the relief is sought, that they cannot be combined, or mixed up with the proceedings in another suit, and in this view it makes no difference whether the other suit is between the same or different parties. The petition under consideration affords as strong an illustration as any other, of the necessity that the proceedings to supersede the execution shall be applied to the particular case. It may be asked, how was the court to know which execution was to be entirely superseded, and which to be partially so; and if the petitioner suceeeds as to one, but fails as to the other, how are the costs to be divided? So far as the petition for the supersedeas is concerned, these remarks are suflicient to show, that in its present condition it is fatally defective in combining two distinct suits together, and for that reason the demurrer should have been sustained.

3. The judgment itself, considered as one upon a motion to enter satisfaction, in consequence of the payment, is also erroneous, for the same reasons, as it does not designate which is paid and which unpaid, or what portions of which have have been satisfied. The principle settled in Osweetchee v. Hope, before cited, although it might warrant the court, as upon motion, in one or both cases, to inquire into the facts, and enter satisfaction as these may appear, does not sustain this judgment, which seems to cover both cases, but which, in fact, determines neither.

The proper judgment upon the petition would be, to dismiss it for the misjoinder; but notwithstanding this, the court would be warranted in entertaining a motion .to enter satifaction upon either, or both judgments, if the facts shown will warrant such relief.

Judgment reversed and cause remanded for further proceedings.