Thompson v. Lassiter

• Decision Date: 01 May 1889
• Citation: Thompson v. Lassiter, 86 Ala. 536, 6 So. 33 (Ala. 1889)
• Parties: THOMPSON v. LASSITER.
• Court: Alabama Supreme Court

6 So. 33

86 Ala. 536

THOMPSON v. LASSITER.

Supreme Court of Alabama

May 1, 1889

Appeal from circuit court, Bullock county; JESSE M. CARMICHAEL Judge.

Petition for supersedeas, brought by J. T. Lassiter against M. W. Thompson. The relief was granted, and defendant appeals.

Watts & Son, for appellant.

Law & Smith, for appellee.

CLOPTON J.

On May 20, 1882, appellant instituted an action on the case against Amos Powell, appellee, and others, to recover damages for the removal and conversion of cotton and other crops, whereby he was unable to enforce is lien as landlord for rent and advances. During the progress of the case the complaint was amended by striking out the name of appellee. Afterwards, appellant brought an action against appellee for money had and received. On February 16, 1887, judgment was rendered in favor of appellant against the remaining defendants in the action ex delicto, and on the next day appellant recovered judgment against appellee in the action of assumpsit. The judgment against Powell and others has been satisfied. The present proceeding is by supersedeas, instituted by appellee to vacate an execution issued to enforce the judgment recovered against him. The petition for supersedeas alleges that the recovery in the action on the case against Powell and others consisted in part of the cotton mentioned in the complaint, and that the recovery against petitioner was for the proceeds of the sale of the same cotton.

Counsel for appellant contend that petitioner is estopped from going behind the judgment for the purpose of showing that the two suits were founded on the same general cause of action. The argument is that the election of appellant to bring an action of tort against some of the tort-feasors was pleadable in bar of the subsequent action of assumpsit; and that the judgment in the latter action determines all defenses that might have been urged before it was rendered, and is conclusive. It is said in Bacon's Abridgement, (volume 1 p. 510,) in reference to the writ of audita querela: This process "is a writ to be delivered against an unjust judgment or execution by setting them aside for some injustice of the party that obtained them, which could not be pleaded in bar to the action; for, if it could be pleaded, it was the party's own fault, and therefore he shall not be relieved, that proceedings may not be endless." In our practice the proceeding by supersedeas is substituted for the writ, and generally will lie in the cases in which a writ of audita querela would lie at common law. Matter which operates an equitable satisfaction of a judgment may...