10 Ala. 274 | Ala. | 1846
There is no difference in principle, between the facts on which this application is based, and those of Hall y. Hrabrowski, 9 Ala. 278. The petition sets forth, that the plaintiff in error having obtained judgment below, collected the amount thereof by execution, and afterwards prosecuted a writ of error to this court, and at this term of the court has procured a reversal of the judgment. In the case cited, the money was enforced by execution, after the writ of error was sued out, but before the commencement of the term of this court, at which the judgment was reversed ; the application in that case, as in this, being after the reversal of the judgment. If the application had been made before the hearing of the cause, we would have directed the dismissal of the writ of error, unless the plaintiff refunded the money coerced by the execution. As the motion has not been made until the judgment was reversed, the defendant must pay the costs of this court; but If the facts set forth in the motion are not denied by the plaintiff on oath, a stay of the certificate will be directed, until the money collected by the execution is refunded to the defendant.
The argument of the plainttff’s counsel, that this court cannot take original jurisdiction, and try the fact of payment if that is disputed, is premature. It will be time enough to consider that question, when the facts set forth in the affidavit of the defendant, are denied in the same manner by the plaintiff.
The motion is allowed, and a rule upon the plaintiff granted, to show cause at the next term of this court, why the certificate of this court, of the reversal of this cause, should not be stayed, until the money coerced by the plaintiff under execution in this cause is refunded to the defendant.