Jesse French Piano & Organ Co. v. Bradley

DOWDELL, J. This is a petition for a supersedeas of an execution issued by the clerk of the circuit court on a statutory replevin bond in a detinue suit, which, said bond had been returned by the sheriff as forfeited. A demurrer ivas sustained to the petition, and, upon failure of tlie petitioner to further plead, the petition was dismissed. From the judgment of the court dismissing' the petition, this appeal is prosecuted. There is but one assignment of error, and this is based on the ruling of the court in sustaining the demurrer. The petition among other things shows that the petitioner, -who was the plaintiff in the detinue suit, prosecuted an appeal from the judgment in that suit to this Court, giving security for costs and executing a supersedeas bond. The security for costs in said appeal and the supersedeas bond were not given until after the expiration of thirty days from the rendition of the judgment in the detinue suit, but before the return of the replevin bond by the sheriff as having been forfeited. The petition further shows that, on the 30th of June, 1903, the judgment appealed from in the detinue suit was affirmed by this Court, and on the 28th of July, 1.903, and within thirty days after said judgment of affirmance by this Court, the petitioner delivered the piano to the sheriff, but the sheriff, .on the solicitation of the defendant, refused to receive the same, and, on the first day of August thereafter, returned the replevin bond with his endorsement of forfeiture thereon, and, thereupon, the clerk issued the execution, which is now sought to be superseded. [534] As a proposition of law, the doctrine seems to be well settled by former adjudications of this Court, that matter existing anterior to the judgment cannot be made a ground for supersedeas of an execution issued on such judgment. — Marshall v. Candler, 21 Ala. 490; Matthews v. Robinson, 20 Ala. 130; State v. Beasley, 45 Ala. 81; Thompson v. Lassiter, 86 Ala. 536. On a petition for supersedeas of an execution it was said by this Court in Branch Bank v. Coleman, 20 Ala. 140; “The proceeding in this case cannot be regarded as a proceeding at common la.w, in the strict sense of that term. It is substituted, in our practice, for the writ of audita querela, and the same rules which govern the one must regulate the other, with but slight exceptions.”— Citing Lockhart v. McElroy, 4 Ala. 572; Edwards v. Lewis, 16 Ala. 813; Dunlap v. Clements, 18 Ala. 778; Rutland v. Pippin, 10 Ala. 469. “This writ and the proceeding on which it was founded were in the nature of a bill in equity, (1 Bac. Ab. 307; 2 Blac. Com. 405) ; and the ground of the jurisdiction to award it is said to be the power and duty of all courts to prevent, the abuse of their process, where an improper, or unjust use is attempted to be made of it, (Lockhart v. McElroy, supra) ; indeed, it may be properly regarded in all instances, in which the matter of discharge insisted upon in the petition does not appear on the record, as a substitute for a bill in equity. Great latitude must, therefore, be allowed in making up the issue, and a corresponding latitude extended to the proof under such issue. So that, even if the matter, relied upon by the petitioner would form a good equitable satisfaction of the judgment, which the writ of execution is used to enforce, it may be inquired into in this way, and the execution perpetually superseded.” From the above authorities it will be seen that the primary and principal object of the remedy by the writ of supersedeas is to prevent the abuse of the process of the court, and, while it is said to be in the nature of a bill in equity as to matter of discharge insisted on in the petition. which does not appear of' record, such matter of discharge insisted on in the petition must be matter arising subsequent to, and not anterior to, the judgment. [535] In cases like the one before us, where a replevin bond lias been executed, the statute, § 1479 of the Code of 1896, provides among other things, that “If the property be delivered, and the damages assessed for its detention and the costs be not paid, the sheriff must upon the bond make return of the fact, and execution must issue against any or all of the obligors for such damages and costs, or for either, as either may be unpaid.” The petition avers a delivery of the piano, the property replevied, or, what was equivalent therein, an offer to deliver and a refusal by the sheriff to receive the same, and this within thirty days after the judgment of affirmance by this Court. On the facts averred in the petition, and which were confessed on demurrer, it was the duty of the sheriff to have received the piano, and made return on the bond of the fact of the delivery, in accordance with the directions in the statute. This the sheriff did not do, but, instead thereof,’ returned the bond as forfeited in tota. This action deprived the petitioner of a clear legal right, and operated an injustice to it through an improper use of the process, of the court, and to meet and correct such wrong, it- is that the remedy here employed, of a petition for a sitpensccleas of the execution, is peculiarly adapted. Our conclusion is that the court erred in. sustaining the demurrer to the petition, and it follows that the judgment appealed from must be reversed, and the cause remanded. Reversed and remanded. McClellan, C. J., Simpson, Anderson and Denson, J.J., concurring.