45 So. 423 | Ala. | 1908
To quash an execution issued on a judgment, in vacation, supersedeas is the proper remedy. Judges of the circuit court have authority in vacation to issue the writ, returnable to the court in term time. The plaintiff in execution is not entitled to notice of the filing of the application to the judge, but is entitled to notice of the hearing in term time. — Ex parte Grant & O’Barr, 53 Ala. 16; Ex parte Henderson, 43 Ala. 392. In the present case the plaintiff appeared in term time and 'filed ansAver to the petition for the supersedeas, making an issue, and demanded a trial by jury. By so doing he waived any irregularity in the issue and return of the writ.
The hearing on the application was continued from time to time. In this condition of the case the plaintiff in execution applies here for a mandamus to compel the court to set aside an order overruling a motion to quash the writ of supersedeas for irregularity in its issuance. After the ruling of the court on said motion, it was then that the plaintiff filed its answer and demanded a jury tidal. On these facts, the plaintiff is not entitled to a mandamus, and its petition is denied.
Petition for mandamus denied.