Dingman v. Myers

79 Mass. 1

• Court: Massachusetts Supreme Judicial Court
• Decided: June 15, 1859
• Status: Published

Opinion

Dewey, J.

The giving of a bond to repay the amount of the judgment, if reversed on review within a year, was a prerequisite to issuing an execution, and imperatively required by the Rev. Sts. c. 92, § 6. For this error the question now arises, what is the proper remedy? A writ of error does not lie in such case, as was held in Johnson v. Harvey, 4 Mass. 483. The defendant in the former suit might have sued out a writ of review within a year after the rendition of the judgment. We think he may also resort to his writ of audita querela, given by the Rev. Sts. c. 112, § 1. This seems to be sanctioned by the court in their opinion in the case of Johnson v. Harvey, above cited. In Lovejoy v. Webber, 10 Mass. 103, it was said that the cases where audita querela is a proper remedy are left to be determined by the rules of the common law. It was also held to be a concurrent remedy with a petition for review.

This form of proceeding has more usually been resorted to, to procure a discharge from an illegal arrest improperly obtained, or a release of property from being sold upon an execution then in force, and in the hands of an officer. But this remedy is not thus restricted. 2 Saund. 148, notes. Com. Dig. Audita Querela, A. Gridley v. Harraden, 14 Mass. 497.

Upon the facts offered in evidence, the writ of audita querela was a proper remedy, the execution issued illegally, and all proceedings under it must be vacated. Exceptions sustained.