Edinburgh American Land Mortgage Co. v. Canterbury

55 So. 498, 172 Ala. 323, 1911 Ala. LEXIS 192

• Court: Supreme Court of Alabama
• Decided: May 18, 1911
• Status: Published

Opinion

DOWDELL, C. J.-

The present appeal is prosecuted from an order of the circuit judge denying appellant’s petition for a supersedeas. The petition shows that the appellee, Canterbury, as administrator, obtained a judgment in ejectment against the appellant in the circuit court of Marengo county, and that an appeal was taken to this court, and the judgment here affirmed.— 169 Ala. 444, 53 S'outh. 823. The petitioner seeks to have the execution superseded, and to require the plaintiff (appellee here) to try over his case in the circuit court; and this upon the theory that petitioner lost the fruits of its appeal from the judgment in ejectment by reason of a failure of the trial judge to properly indorse its bill of exceptions in that case.

No authority is cited to sustain the view of the petitioner here as to the office of a writ- of supersedeas, and we apprehend that none can he found. The circuit court, it is true, as a general rule, has the inherent power to control its process and to prevent an abuse of the same, and to this end the writ of supersedeas may be employed. But it is not shown that there has been any abuse of process in the present instance. The only process taken is in execution of the judgment obtained in ejectment, and snch as the judgment authorized. The court certainly has no power, after adjournment, to set aside the judgment and require the plaintiff to try over his suit; and this seems to be the purpose of the petition.

The petition for supersedeas was properly denied, and the order appealed from will be affirmed.

Affirmed.

Anderson, Sayre, and Somerville, JJ., concur.