Thompson v. Lassiter , 86 Ala. 536 ( 1888 )

CLOPTON, J.

On May 20, 1882, appellant instituted an action on the case against Amos Powell, appellee and others, to recover damages for the removal and conversion of cotton and other crops, whereby he was unable to enforce his lien as landlord for rent and advances. During the progress of the case, the complaint was amended by striking out the name of appellee. Afterwards, appellant brought an action against appellee for money had and received. On February 16, 1887, judgment was rendered in favor of appellant, against the remaining defendants in the action ex delicto; and on the next day, appellant recovered judgment against appellee in the action of assumpsit. The judgment, against Powell and others has been satisfied. The present proceeding is by supersedeas, instituted by appellee, to vacate an execution issued to enforce the judgment recovered against him. The petition for supersedeas alleges, that the recovery in the action on the case, against Powell and others, consisted in part of the cotton mentioned in the complaint, and that the recovery against petitioner was for the proceeds of the sale of the same cotton.

Counsel for appellant contend, that petitioner is estojaped from going behind the judgment, for the purpose of showing that the two suits were founded on the same general cause of action. The argument is, that the election of appellant, to bring an action of tort against some of the tortfeasors, was pleadable in bar of the subsequent action of assumpsit; and that the judgment in the latter action determines all defenses that might have been urged before it was rendered, and is conclusive. It is said in Bacon’s Abridgment, in reference to the writ of audita querela-. “This process is a writ to be relieved against an unjust judgment or execution, setting them aside, for some injustice of the party that obtained them, which could not be pleaded in bar to the action; for, if it could be pleaded, it was the party’s own fault, and therefore he shall not be relieved, that proceedings may not be endless.” In our practice, the proceeding by supersedeas is substituted for the writ, and generally will lie in the cases in which a writ of audita querela would lie at common law. Matter which operates an equitable satisfaction of a judgment, may be inquired into by this proceeding, and an execution issued to enforce the judgment may be superseded and vacated; but matters which go behind the judgment, can not be inquired into.—Br. Bank of Mobile v. Coleman, 20 Ala. 140; Mervine v. Parker, 18 Ala. 241.

"We do not understand, from the averments of the petition, that the petitioner seeks to go behind the judgment, for the purpose of setting up any defense which then existed. The petition merely invokes the application of the general rule, that when several actions are brought against joint tortfeasors, and a recovery had in each, the satisfaction of one judgment works the satisfaction of all. Whether the rule applies, when an action of tort is brought against some of them, and subsequently assumpsit, waiving the tort, is brought against another, is not raised by the record. The petition was demurred to, and on the demurrer being overruled, appellant joined issue on the petition, which put petitioner on proof of its allegations. The objection now made was not assigned as cause of demurrer, and the question is not properly presented for our consideration.

From tbe judgment rendered against bim, tbe petitioner-took an appeal to tbis court, giving a supersedeas bond. Tbe judgment was affirmed in January, 1888,,,-witb ten per cent, damages. Tbe judgment against Powell and others was satisfied pending tbis appeal. Tbe execution, wbicb it sought to supersede, was issued on tbe affirmed judgment. Tbe damages awarded on tbe affirmance of tbe judgment were not satisfied by tbe payment of tbe judgment against Powell and others.—Lockhart v. McElroy, 4 Ala. 572.

Tbe proceeding by supersedeas is regarded in tbe nature of a bill in equity, but not so far as to require tbe same strictness in pleading. It was not necessary for tbe petitioner to offer to pay tbe damages and costs. Tbe court could have credited the execution to tbe amount of tbe - satisfaction, and let it stand for tbe damages and tbe costs. Munter v. Leinkauff, 78 Ala. 546.

Reversed and remanded.