Columbia Bldg., Loan & Savings Ass'n's Assignee v. Gregory

112 S.W. 608, 129 Ky. 489, 1908 Ky. LEXIS 183

• Court: Court of Appeals of Kentucky
• Decided: September 29, 1908
• Status: Published

Opinion

Opinion of the Court by

Judge Hobson —

Affirming.

A judgment was rendered on February 19, 1898, in Jefferson circuit court in favor of tbe Columbia Building Loan & Savings Association against C. E. Gregory and E, B. Gregory. No execution was issued on the judgment until July 12, 1907. An execution having been issued, E. B. Gregory entered a motion in the court to quash the execution upon tbq ground that she was only a surety in the debt for which the judgment was rendered, and that no execution had issued upon the judgment within seven years. The court sustained the .motion, and the association’s assignee appeals.

Section 2548, Ky. St. 1903, is as follows: “A surety shall be discharged from all liability under any judgment or decree, after the lapse of seven years without any execution issued thereon, and prosecuted in good faith for the collection thereof.” The record clearly shows that E. B. Gregory received no part of the consideration, and was only the surety of her husband on the note for which the judgment was rendered. It is true that she might have pleaded her coverture, and defeated a judgment on the note; but the fact that she did not make this plea does not deprive her of the rights which any other surety would have .if execution is not issued within seven years. The statute applies to all sureties and it is not material that the record does not show that the defendant is only a. surety in the debt. It is the fact of suretyship that controls in the case of a judgment, just as the fact of suretyship controls in a suit on a note, although the note does not show that the person is surety. Day v. Billingsly, 3 Bush, 157.

The court has inherent power over its own process, and may quash it where it is issued after the time has elapsed within which it may be lawfully issued, or after the judgment is satisfied, or when for any other reason it may not be enforced. Woolley v. Louisville, 118 Ky. 897, 82 S. W. 608, 26 Ky. Law Rep. 872; 1 Freeman on Judgment, section 77; Garvin v. Neal, 13 B. Mon. 256. The proper remedy,, where process has been improperly issued, is by motion to quash it. An audita querela was the ancient remedy, but the practice now is to grant summary relief upon motion in cases of this sort. The case of Hauns v. Central Kentucky Asylum, 103 Ky. 562, 20 Ky. Law Rep. 240, 45 S. W. 890, involved the question whether the property levied upon was subject to levy and sale. It did not involve the validity of the process. Whether the property levied upon is subject to the execution must be determined by action; but questions which simply go to the validity of the process may be determined summarily on motion. The process here, having been issued after the time allowed by law for that purpose, was properly quashed. 17 Cyc. 1154-1156; Noe v. Conyers, 6 J. J. Marsh. 514.

Judgment affirmed.