Page v. Coleman , 9 Port. 275 ( 1839 )

GOLDTHWAITE, J.

Before entering into an examination of the points presented in argument, it is necessary to dispose of the preliminary objection to the jurisdiction of the court. It is insisted for the defendant in error, that a refusal to entertain a motion of this description, is not such a final judgment as will sustain a writ of error.

This question has been several times presented before this court, and has uniformly received the same determination. In Creighton vs. Denby, (Minor, 250,) a judgment of the Circuit court, refusing to quash an execution, was reversed, and the execution quashed by this court. In Wilkinson vs. Goldth waite, (1 Stew. & Por. 159,) the general question, was very fully examined, and the court then decided, that a writ of error could be maintained on a refusal to enter a judgment, nunc pro tunc. In Baylor vs. McGregor & Darling, (1 Stew. & Por. 158,) a judgment of the Circuit court, refusing to credit an execution with a sum of money, was affirmed, by this court, and no question was made as to its jurisdiction. And in the case of Isaacs et al. vs. The Judge of the County court of Jefferson county, (5 Stew. & Por. 402,) a refusal to quash was reversed, and the execution quashed by this court. After these repeated adjudications, the practice cannot be permitted to be questioned.

The record does not disclose the reasons which induced the Circuit court to overrule this motion, and we cannot reverse its decision, unless it satisfactorily appears, that no cause could have existed to warrant the course pursued. The court was not bound to entertain the motion, if notice had never been given to the adverse party, or a sufficient reason for its omission shewn. In the case of Clemens vs. Judson et al. (Minor, 395,) it is said that notice is necessary, when a motion is made to enter judgment nunc pro tunc, hut that the notice need not appear of record. In the case of Baylor vs. McGregor & Darling, (1 Stew. & Por. 158,) the judgment of the Circuit court, refusing a motion to enter a credit on an execution, and to satisfy a judgment, was affirmed, because it did not appear that notice of the motion was given to. the adverse party. Without deciding that a notice is absolutely necessary to be given, in these or similar cases, it is clear from the authorities cited, that a court may, in the exercise of its discretion, refuse to entertain a motion, unless notice is given, or some sufficient reason shewn, for its omission. The entry of the overruling of this motion states, that it was fully heard, but this is in no wise inconsistent with the idea, that after such hearing, the court might have considered the case as one which ought not to be determined, without an opportunity afforded to the adverse party of being beard. If the conclusion could be arrived at, that the party was before the court, we would not be at liberty to hesitate in pronouncing there was error in refusing to quash the execution, as every question raised in this court against the authority to do so, has hitherto been decided, — except that which is supposed to arise from the forthcoming bond.

The entering into this, cannot be construed as a consent that the proceedings should be considered as regular, or as a waiver of the irregularity. If the suit was on the bond, the party might not be permitted to deny the validity of the judgment, because he would be estopped by his solemn deed, in which the existence of it is admitted ; but this very rule, would make it the more important for him to obtain the judgment of the court setting aside the execution, and consequently destroying the1 legal effect of the bond.

The only mode by which the irregularity of the execution could be brought to the notice of the court, was by affidavits, and if the sole entry of judgment is the one shewn, the execution was improperly issued, and should have been quashed — (Tombeckbee Bank vs. Strong’s ex’r 1 Stew. & Por. 187; Draughan vs. Tombeckbee Bank, 1 Stewart, 66; Isaacs et al. vs. Judge of the County court of Jefferson county, 5 Stew. & Por. 402.) The case last cited, is also a conclusive answer to the argument used at bar, that an execution cannot be quashed after its return, as well as the assertion, that the only mode of relief, is by supersedeas. The only reason on which the refusal of the Circuit court to entertain the motion can be sustained, is because the record does not disclose a notice to the adverse party, or a sufficient cause for its omission.

Let the judgment be affirmed,