Watts & Joyner v. Norton

1 Charlton 353

• Court: Chatham Superior Court, Ga.
• Decided: May 15, 1831
• Status: Published

Opinion

SSy MW, JJuiclge.

TWO motions were presented to the consideration of the Court in this case. The defendant in the execution has made an affidavit of illegality, under the provisions of our Judiciary Act of 1799, upon which the Sheriff returned the execution to this Court, from whence it had issued. The plaintiff in execution moves to set this affidavit aside, upon the ground, that the exe-. cution issued legally, and that the objection stated in the affidavit to the enforcement of the execution, is founded upon the allegation of subsequent payment and satisfaction.

It is unnecessary that the Court should decide upon this motion, since the defendant, having been unprepared to sustain the facts set forth in his affidavit, has virtually abandoned that proceeding, and submitted to the Court a distinct motion, founded upon affidavit, for an order nisi upon the plaintiffs, to shew cause at the next term of the Court, why satisfaction should not he entered up, upon the judgment. When the process of the Court is attempted to he used oppressively and against justice, as by levying an execution, after the judgment had been satisfied, the party was formerly driven for relief to the writ of audita querela, and subsequently, by an indulgence of the Courts, almost every case in which audita, querela, was necessary, is now disposed of upon motion, and if the Court requires information, it will direct an issue to be made up for that purpose.

John C. Nicoll, for plaintiffs—John Millen, for defendant.

It is therefore perfectly regular and proper that the defendant should come before the Court upon motion for relief in this case; but he is not prepared to shew the payment stated in the affidavit, and therefore has modified the motion which he ought to have made, by asking for a rule upon the plaintiffs in execution to shew cause, (fee. at the next term. There can be no objection to granting this order; it is perfectly harmless, and can only operate upon the plaintiffs as a notice, unless it be extended in its terms, to stay in the mean time all proceedings upon the execution; and it is asking too much of a Court of law to suspend its proceedings, and hang up a party after judgment, upon an affidavit like this. If the defendant had been prepared with his proofs, from the controlling power which a Court retains over its own judgments, he could have found relief here upon the motion. But as it is, he must apply to a Court of Equity, if his object be to suspend the proceedings upon the execution ; which Court, whilst it stops the plaintiffs, can put the defendant upon terms, and require him to give security for any sum that may be found due.

The defendant will therefore take his order, restricted simply to a rule upon the plaintiffs to shew cause at the next term of this Court,' why satisfaction should not be entered upon the said judgment.

See the following authorities : 2 Cain. 254. 10 Mass. Webb vs. Lovejoy. 17 Mass. 153. 1 John. 532. 1 Strange, 40. 2Saun. 148, c. 1 Boss. & P. 429. 1 Wil, 331. Doug. 196. 1 Salk. 93. 4 Burr. 2287. Barns, 130. Cowp. 727.

R, W. Habersham, & G. W. Owens, for eomplainants-«-JoHN C. Nicole, for defendants,