Rice v. Dillahunty

20 Ala. 399

• Court: Supreme Court of Alabama
• Decided: January 15, 1852
• Status: Published

Opinion

PHELAN, J.'

The question presented for decision is, the sufficiency of the petition for a supersedeas, and the facts therein stated, to entitle the plaintiff, if true, to his motion to quash, or to enter satisfaction. The petition, by agreement, stood in the place of a declaration. The demurrer of the plaintiff to the defendant’s plea, when it is visited at the instance of the defendant on the declaration, has the effect of every other demurrer; the defendant thereby admits the declaration to be true. In this way, by the pleadings, the facts stated in the petition are admitted to be true.

What are those facts ? Besides some other facts which are stated, in reference to the issuance of the original fi. fa. and the death of plaintiff’s testator subsequently, and then the issuance of an alias fi.fa. which we need not more particularly consider, it is averred, in very plain and direct terms, that the judgment on which the execution issued “is satisfied.” Here is an averment which, if supported by proof, will clearly entitle the plaintiff to his motion to quash the execution, and also to his motion to have satisfaction entered. Lockhart v. McElroy, 4 Ala. 572. But the demurrer admits the averment to be true. It follows necessarily that the Circuit Court erred, in declaring the petition to be insufficient in law to entitle the plaintiff to his motion, and in dismissing the supersedeas.

Eor this error, let the judgment of the court below be reversed, and the cause remanded.