Jesse French Piano & Organ Co. v. Bradley

• Decision Date: 18 May 1905
• Citation: Jesse French Piano & Organ Co. v. Bradley, 143 Ala. 530, 39 So. 47 (Ala. 1905)
• Parties: JESSE FRENCH PIANO & ORGAN CO. v. BRADLEY. a1
• Court: Alabama Supreme Court

39 So. 47

143 Ala. 530

JESSE FRENCH PIANO & ORGAN CO. v. BRADLEY. a1

Supreme Court of Alabama

May 18, 1905

Appeal from Circuit Court, Butler County; J. C. Richardson, Judge.

"To be officially reported."

Petition for a supersedeas of an execution by the Jesse French Piano &amp Organ Company against D. I. Bradley. From a judgment dismissing the petition, plaintiff appeals. Reversed.

Ray Rushton and C. E. Hamilton, for appellant.

D. M Powell, for appellee.

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 was sustained to the petition, and upon failure of the 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 30 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 (35 So. 44), and on the 28th of July 1903, and within 30 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 1st day of August thereafter returned the replevin bond with his indorsement of forfeiture thereon, and thereupon the clerk issued the execution which is now sought to be superseded.

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. Caudler, 21 Ala. 490; Matthews v Robinson, 20 Ala. 130; State v. Beasley, 45 Ala. 81; Thompson v. Lassiter, 86 Ala. 536, 6 So. 33. 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 law 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, 7 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...