Hopkinson v. Sears

The opinion of the court was delivered by Redfield, J. — At common law no formal order of supersedeas is made upon the granting of a writ of error, at least so far as the party is concerned. In practice the writ is sued out before the final judgment, and takes effect from the time of signing final judgment, if bail be put in within four days, and this time is reckoned from the time judgment is not only signed but made up in form. Blackburn v. [498] Kymer, 5 Taunton, 672. If the writ is sued out after final judgment, as still it may be, it operates as a supersedeas or stay of execution, from the time of'the alloioance of the writ, .that is, the delivery of the writ to the clerk of errors, and not from the time of service of notice upon the defendant in error, or his attorney, which is important only for the purpose of bringing them into contempt, if they presume to proceed and levy the execution. 2 Saund. R. 101, notes f, g, h, and cases there cited. Jaques v. Nixon, 1 T. R. 280. Gravall v. Stimpson, 1 B. & P. 478. But if the sheriff have begun to execute his writ of execution, it is not superseded by suing out a writ of error merely. Tocock v. Honyman, Yelverton’s R. 6, and notes. Meriton v. Stevens, Cro. Eliz. 597. But in this case, the money, which is-raised by levy upon the goods of the debtor, and sale, is brought into court, to abide the event of the writ of error. 2 Saund. R. 101, n. i. But in many cases in the English practice, perhaps in all cases,where a writ of error is awarded after the execution is in the hands of the sheriff, a formal writ of supersedeas goes to the sheriff, which is served by delivering it into his hands, and this writ, as its name indicates, arrests all further proceedings. If the body is in custody it is suffered to go at large upon sufficient security being given for the ultimate payment of the judgment if affirmed. But if the goods of the debtor have been levied upon they are sold and the money retained. In our practice, if the writ of audita querela, and the petition for new trial, in cases like the present, operate as a supersedeas, in any manner, it is by reason of a special order to that effect, made by the authority issuing the writ, which is virtually combining the writ of supersedeas with the other writ. As these provisions are statutory in our system of jurisprudence, their effect ought not to be determined except with reference to the several statutes upon this subject. As this supersedeas, the effect of which we are now considering, issued before the present revision of statutes came in force, we must refer to the former statutes. From those it Is very obvious, we think, that the order of supersedeas was intended to arrest all further proceedings upon the execution, in whatever stage it was. The statute of 1829, [499] under which this supersedeas issued, provides that the judge may order “ a supersedeas of the execution, and a stay of all proceedings thereon, until final judgment.” The phraseology seems to imply, not only that the execution is to be thereby prevented, but if in progress, it is to be forthwith arrested, and to remain in statu quo; for the concluding sentence reads thus“until a final decision shall be-made on such petition; and if execution shall not have issued such judge may order that the same shall not be issued during the pendency of such petition.” The provisions of the revised statutes may be considered, in some sense, a legislative construction of the former statute upon this point, and they read thus ; “ The judge may, in any case, order a stay of all proceedings on the judgment, whether execution shall have issued or not.” The statutory enactments, in regard to the writ of audita querela, and the form in which the recognizance is required to be taken, “ for the redelivery of the body or estate, as the case may be, to the custody of the officer,” &c., clearly indicate that the legislature intended to give the same effect to the order of supersedeas, in that class of cases, which we'are now giving to it, in the class of cases under consideration. Such, too, has been the uniform practice under both these stututes. . A question was made, at the bar, as to the mode in which ■this order was served upon the sheriff’. We think it was well enough. Had it been a separate writ, it might perhaps have been well served by delivering it to the sheriff; but that, in the present case, could not have been done, as it must be returned to the court. We think that, at the least, it would take effect from the time it was made known to the sheriff, as, at common law, after this the party would be in contempt. Such is the rule in some of the early decisions in Connecticut, which I think have been there followed. Phelps v. Landon, 2 Day, 370. In Massachusetts, too, they have given the supersedeas, on granting a writ of error, the same extension we now give it. Bailey v. Baxter, 1 Mass. 156. So, also, upon a petition for a new trial, after execution had issued, Parker, J. ordered the execution to be seperseded, upon proper security being given. Bond v. Cutler, 7 Mass. 205. In the state of New York, they have [500] followed the English rule in regard to this subject. Blanchard v. Myers, 9 Johns R., 66. The decision upon this point, in effect, disposes of the case. The order of supersedeas having rendered the writ of execution wholly powerless and inoperative, it was the same as if the execution had been recalled, or never issued. The sheriff, after this, proceeded in his own wrong, and the enforcing the payment must be regarded as an act wholly unauthorized, and as virtual extortion. It cannot be considered in any sense a voluntary payment by the plaintiff. Hé must have his redress by action at law, (this being final process, he could not otherwise be heard at all,) and this seems to be the appropriate remedy. If the party, compelled to pay money on final process, after that process is superseded, and this made known to the sheriff, cannot have redress by action at law, then indeed would he be without all remedy, unless he resort to forcible resistance, which could not be justified unless the law denies all peaceable redress. Judgment affirmed.