Burt v. Hughes

11 Ala. 571 | Ala. | 1847

GOLDTHWAITE, J.

1. It seems there was no judgment rendered in the court below, on the petition for the su-persedeas, and for this reason the writ of error would be premature, if the court had not also proceeded to correct the judgment rendered at the previous term. As the case however, is before us, in all its aspects, we shall proceed to determine the questions arising on the record.

In Lockhart v. McElroy, 4 Ala. Rep. 572, we considered out statutory writ of supersedeas as standing in the stead of the common law writ of audita querela, but the claim of the petition in this case goes much further than that writ was ever held to extend. In Viner’s Abridgement — title Audita Querela, E — it is said the writ will lie only to present some matter of defence which the party could not plead to the suit when in progress. Here the attempt is to set aside a judgment, for a matter of payment which the party could have pleaded. In this view of the case, it seems clear the party could have no relief at common law, by the old writ of au-dita querela, and therefore is not entitled on this ground to a supersedeas.

2. But it is said there is another aspect in which the party is entitled to the writ, or to a judge’s order to delay or stay the execution; and that is, because the clerk improperly entered the judgment for too much, by omitting to reduce the sum of the note by the credit indorsed. If the case was. one of mere clerical misprision, there would be great force in this argument, but the petition shows the credit was erased before the entry of judgment. Under the statute which authorizes the clerk to make an asesssment of the damages in certain actions upon default, &c., if a mistake is made by him in the sum of the judgment, whether he makes it too much or too little, the court may correct it nunc pro tunc. [Merchants’ Bank v. Thorne, 19 John. 244, and several cases in our own court cited in defendant’s brief.] But we are not aware of any adjudications which warrant the court in setting up a credit which is erased previous to the delivery to the clerk to assess the damages. Such an inquiry would be an investigation of the contested claims of the suitors, and as well remarked, would be the very matter which should have been in issue.

Whatever relief the party is entitled to, we are clear that supersedeas is not his proper remedy. [White v. Harris, 5 Hump. 421.] We think the court erred in amending the judgment, under the circumstances disclosed, and that the petition should have been dismissed.

Judgment reversed and remanded.