Shearer v. Boyd
Supreme Court of Alabama
Writ of error to the Circuit Court of St. Clair. Supeesedeas sued out by Boyd against Shearer, to stay proceedings on certain executions.
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Writ of error to the Circuit Court of St. Clair. Supeesedeas sued out by Boyd against Shearer, to stay proceedings on certain executions. The petition asserts, that at the spring term 1831, Shearer, as the indorsee of Benjamin Smith, recovered a judgment against one Joel Chandler, for $248 56, besides costs; and at the same time said Smith for the use of Shearer, recovered another judgment against said Chandler, for about $523 23. Both of these judgments were removed to the supreme court, the petitioner, Boyd, being Chandler’s surety on the writ of error bond. They were affirmed at the June…
1Opinion of the CourtGoldthwaite, J.
1. In the English courts of common law, the practice, when an execution has issued improperly, is, to obtain a judge’s order to stay proceedings, until the defendant can submit a motion in court; (Tidd’s Prac. 511;) and this summary mode of redress by motion, it is said, obtains in all cases, when it would be allowed by audita querela. [Ib. 212.J With us, the matter, to some extent, is regulated by statute, which directs the allowance of a supei'sedeas, on application to a judge at Chambers, whenever an execution has improperly issued. [Dig. 208, § 38.] This statute was at first considered as…
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