Linebaugh v. Rinker ( 1824 )

Peck, J.

delivered the opinion of the Court.

Linebaugh had been sued before a justice of the peace, and had judgment rendered against him for $18.90; the judgment remained without execution sued out for about eighteen months; his property being seized under an execution on the judgment, he complained to the County Court by his petition, alleging that he had paid off the judgment, and prayed a certiorari and supersedeas, which was granted, when the execution was brought up.

There was a rule entered to show cause why the writs of certiorari and supersedeas should be dismissed, which, on argument, was discharged; a trial was had before a jury, who found the fact that the judgment had been paid, except the sum of $4.75; and on that finding the Court quashed the execution, except as to the said sum of $ 4.75. Appeal in the nature of a writ of error was taken to the Circuit Court, and there, on the motion entered in the County Court, the writs were dismissed, from which judgment of dismissal appeal is taken to this Court.

And now the question is raised whether or not the certiorari can be used to the end to which it is attempted to be applied in this case.

The Court are of opinion it can. The writs of certiorari and super-sedeas are instruments in the hands of superior jurisdictions, by which they can inquire into and control the exercise of inferior jurisdictions.

The writ of audita querela is not in common use in this country; the certiorari is a writ of very general resort; and as the end can be attained in a case like the present by the use of it, we see no reason why it should be denied.

It has been used to bring up the proceedings of military tribunals where they have assessed fines against those not subject to their jurisdiction, and when brought up the proceedings in such cases have been quashed. Durham’s -case, Supreme Court, June term, 1814, Knoxville, 4 Hay. 54.

Judgment of the' Circuit Court reversed, and that of the County Court affirmed.