Thomas Cargo, Plaintiff In Error v. John Chapman
| Decision Date | 01 December 1857 |
| Citation | 15 L.Ed. 1021,20 How. 555,61 U.S. 555 |
| Parties | THOMAS McCARGO, PLAINTIFF IN ERROR, v. JOHN L. CHAPMAN |
| Court | U.S. Supreme Court |
THIS case was brought up, by writ of error, from the Circuit Court of the United States for the southern district of Mississippi.
The facts of the case are set forth in the opinion of the court.
It was argued by Mr. Bradley for the plaintiff in error, and by Mr. Badger for the defendant, upon which side there was also a brief by Mr. Badger and Mr. Carlisle.
This case is brought before us by a writ of error to the Circuit Court for the southern district of Mississippi.
On the 14th of May, 1855, the defendant moved to quash an execution issued in the above case, on two grounds: first, because the same issued more than seven years after a prior execution; second, because the same issued more than seven years after the return of the last preceding execution, in said cause.
On this motion the defendant read to the court the record of the judgment in the Circuit Court, which was entered for the sum of twenty-one hundred and nine dollars, and costs; on which an execution was issued the 15th of June, 1843, and was returned, no property found; and afterwards, an alias fi. fa. was issued, the 20th of April, 1855, which was levied on lots 3 and 6, section 35, township 14, range 6 west, as the property of the defendant, which was not sold for want of time.
It appeared that no other execution ever issued upon the above judgment, and the court sustained the motion and quashed the execution, to which an exception was taken. This writ of error is intended to bring before us the question, whether the motion to quash the execution was properly sustained. A preliminary question, however, arises, whether a writ of error can be maintained, on the decision of the above motion.
The judiciary act of 1789 authorizes this court to revise final judgments by a writ of error. And this court say, in Toland v. Sprague, 12 Curtis, 734, that a decision of the court upon a rule or motion is not of that character. And in Boyle v. Zacharie, 10 Curtis, the court say: 'In modern times, courts of law exercise a summary jurisdiction, upon motion, over executions, and quash them, without putting a party to his writ of audita querela; but these motions are addressed to the sound discretion of the court, and their refusal is not a ground for a writ of error.' In Mountz v. Hodgson, 2 Curtis, 124, it is said: In the case of Early v. Rogers et al., 16 How., 599, it is said: 'Wheth...
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...post-judgment writs, orders on motion to quash execution did not vacate judgments and had little finality. McCargo v. Chapman , 61 U.S. (20 How.) 555, 556, 15 L.Ed. 1021 (1857). Because orders on motions to quash execution did not have preclusive effect on future executions, review of these......
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