Perry v. Ward

| Vt. | Dec 15, 1847

The opinion of the court was delivered by

Royce, Ch. J.

The supersedeas, granted upon the allowance of the previous writ of audita querela, by Judge Allen of the county court, was ordered to have effect until the determination of that suit. And, without deciding how far such a supersedeas is subject to the control of the court in which the audita querela is pending, we think, that, without some order professing to dissolve it, it continues in force, though the suit should be removed into this court upon exceptions, and during its pendency here.

But we must understand, from the declaration in this case, that the execution, upon which that supersedeas was designed to operate, had been levied upon the property of the complainants. That fact expressly appears in the recognizance then taken by the judge, as set forth in the declaration. And in order that an audita querela may operate as a supersedeas in such a case, the statute requires, that security be taken to the judgment creditor by way of recognizance, .not only for the return of the property, if awarded, and the payment of intervening damages, but also, in default thereof, for the payment of the debt, damages and costs. Where the value of the property taken in execution is far below the amount of the creditor’s judgment, this closing provision in the recognizance may seem to be a stringent and severe requirement upon the complainant. But in all cases a seasonable restoration of the property will satisfy the recognizance, except as to the intervening damages; and these must be paid, when duly ascertained. And that, on default of compliance with this alternative, the remaining clause creates a direct obligation to pay the whole debt appears as well by the terms in which it is expressed, as by the analogous, or rather parallel, case of Hubbell v. Dodge, 4 Vt. 56" court="Vt." date_filed="1832-01-15" href="https://app.midpage.ai/document/hubbell-v-dodge-6571359?utm_source=webapp" opinion_id="6571359">4 Vt. 56. It was there decided, that a failure to return the body into custody subjected the bail for the whole debt. Hence this part of the security must often be of great importance to the creditor. And here the declaration shows that it was omitted in the recognizance taken on the occasion above referred to.

The question, then, arises, whether this defect was merely cause for abating the process, or whether it rendered the supersedeas void; so that the creditor might lawfully take out another execution upon her judgment against the complainants. The statute is silent as to the consequence to follow from such an omission. But since the authority to issue the writ of audita querela is derived from special statutory provision, and the security therein prescribed is not only required in express and positive terms, but is also essential, to prevent the process from frequently working manifest injustice, we think the requirement should be treated as a limitation upon the power of the judge in granting a supersedeas. Inasmuch, then, as a legal recognizance was not taken upon the allowance of the former writ, it follows, that this defendant had a right to disregard the supersedeas then granted, and take another execution on her judgment. This conclusion would seem to be well sustained by the first ground of decision in Aiken v. Richardson, 15 Vt. 500, and the authorities there cited.

It is next insisted, that the execution now complained of issued irregularly; it being for the whole amount of the judgment, and without restriction of the right to collect interest upon it, as given by the statute, when the interest for a considerable portion of the time had in fact been collected, under the judgment upon a former writ of audita querela. But as this did not appear upon the record of the county court connected with the original judgment, there was no irregularity. It was not as if that record showed a part collected, paid, or remitted. And although we incline to the opinion, that the complainants were entitled to claim a deduction of interest, during the period for which they were adjudged upon the audita quere-la to pay twelve per cent, interest, yet, as we consider the declaration insufficient on other grounds, there is no necessity for deciding upon this point.

The remaining ground alleged for relief is a tender of the sum due the defendant upon her execution. There would seem to be no doubt, that a tender may entitle the judgment debtor to this mode of relief; and, for the reason just suggested, we make no question as to the sufficiency of this tender in amount. But we think, that such a tender cannot avail the debtor, for the purpose of sustaining an audita querela, unless it is kept good and the money brought into court. A different rule would be in conflict with the established law of cash tenders, when made upon á debt. The execution was but the final process in a direct prosecution for the debt. And as a constant readiness to pay must have followed the tender, if made before the prosecution was commenced, or at any previous stage of it, such a readiness was no less essential, when the tender was made in satisfaction of the execution. This readiness should appear affirmatively by the declaration, and cannot be intended. Here nothing is alleged, but the bare fact of tender. Consequently, upon none of the grounds set forth by the complainants, is their declaration sustained.

Judgment of the county court reversed, and judgment that the declaration is insufficient. The defendant electing to take a judgment for only nominal damages, the case was ended in this court.