Lockhart v. McElroy
Supreme Court of Alabama
Ekrok to the Circuit Court of Russell. This proceeding was commenced by motion, in the Court below, by the defendant in error, against the plaintiff in error, as Coroner of Russell county, and his sureties, for failing to make the money on an execution, which it was alledged could have been made by due diligence, upon which the plaintiff obtained a judgment for the amount of the execution, with ten per cent, damages thereon.
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Ekrok to the Circuit Court of Russell. This proceeding was commenced by motion, in the Court below, by the defendant in error, against the plaintiff in error, as Coroner of Russell county, and his sureties, for failing to make the money on an execution, which it was alledged could have been made by due diligence, upon which the plaintiff obtained a judgment for the amount of the execution, with ten per cent, damages thereon. An execution having issued thereon, the plaintiffs in error presented their petition to the Judge of the Circuit Court, al-ledging in substance that at the same time the…
1Opinion of the CourtOrmond, J.
At common law the writ of audita querela was provided for redress, where a matter of discharge had arisen after the judgment, as payment or release! This proceeding was in the nature of a bill in equity. [1 Bac. Ab. 307; 3 B. Com. 405.]
It has however gone into disuse from the summary jurisdiction exercised by the common law Judges, granting relief on motion, and staying proceedings díiring vacation, until application can be made to the Court during term time.
The ground of this jurisdiction is the power and the duty of all Courts to prevent the abuse of its process, where an improper or unjust…
2Cited by27 opinions
- Abercrombie v. ConnerSupreme Court of Alabama · 1846
- Givens v. TidmoreSupreme Court of Alabama · 1845
- Newman v. StateSupreme Court of Alabama · 1909
- Branch Bank at Mobile v. ColemanSupreme Court of Alabama · 1852
- Thompson v. LassiterSupreme Court of Alabama · 1888
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