Cooley v. Gregory , 16 Wis. 303 ( 1862 )

By the Court,

Dixon, C. J.

The order is appealable. It is a final order affecting a substantial right, made upon a summary application in an action after judgment. Laws of 1860, chap. 264, sec. 10, subd. 2.

It is well settled in modern practice, that for facts arising after judgment, or after the time has passed before judgment in which the party can avail himself of them in the action, showing that the judgment ought not to be executed in whole or in part, relief may be given upon motion to vacate the judgment, to order it satisfied, or to stay proceedings, according to the circumstances of the particular case. This practice was recognized, and several authorities cited by this court, in Spafford vs. Janesville, 15 Wis., 474. If the facts are disputed, and the nature of the controversy be such as to require it, the court may direct an issue to determine them, and grant relief upon the motion, in accordance with the verdict of the jury. Lister vs. Mundell, 1 Bos. & Pul., 427, was an application to have a writ oí fieri facias set aside, and the goods and money levied on under it restored to the defendant, on the ground of his having become a bankrupt subsequent to the time when the cause of action accrued, and having obtained bis certificate, between the day on which the writ of fieri facias issued and the day on which it was executed. The court entertained the motion, saying they took it to be the modern practice to interpose in a summary way in all cases where the party would be entitled to relief on an audita querela, To the. suggestion of counsel that the defendant was deprived of the benefit of the bankrupt act under the twelfth section, by reason of having lost more than $5 in one day by horse-racing, and also, that he had frequently promised payment after his certificate was obtained, it was replied by'the court that if they entertained a summary jurisdiction in order to relieve a party from the necessity of having recourse to an audita querela, they must look into the circumstances of the case, and see whether there was any thing to prevent the audita querela from taking effect. The rule was accordingly ordered to stand over, the plaintiff to deliver a declaration, the defendant to plead his certificate, and the parties to go to trial at the ensuing assizes.

The statute makes it the duty of the attorney, or party receiving the amount, to satisfy a judgment upon payment of the same, and of the fees for acknowledgment and entry of satisfaction. R. S., chap. 132, sec. 44. Under a similar statute, (Pardon’s Digest, 55,) it was recently held that courts clearly possess the power, upon summary application by motion, to order satisfaction; and in case of dispute, to direct an issue to try whether a judgment has been actually paid. Homer & McCann vs. Honer, 39 Pa. St. R., 126.

We perceive no difficulty in pursuing the same course in the case at bar. The wheat was pledged to secure the payment of the judgment, with authority to the plaintiffs to sell and apply the proceeds, in case payment had not been made by a given day. If the sale was unfairly conducted, or if the plaintiffs violated any subsequent agreement, with regard to the wheat, the jury, under proper instructions, will fix the sum which should be allowed to the defendants, and the same will be accordingly deducted from the judgment.

Order reversed, and cause remanded for further proceedings according to law.