Abbildungen der Seite
PDF
EPUB

a

a

109

amount of his erroneous judgment, to restore to the opposite party the property which he has taken in execution, or, if such property has been sold, then to restore to him the price for which the same was sold.107

If the execution has been satisfied by a levy on land, a writ of restitution will not be awarded, but the plaintiff in error must resort to a writ of entry, especially if the property has been sold subsequent to the levy by the defendant in error to an innocent purchaser for value without notice.108

3362. After judgment in error has been thus given, the record remains in the court of errors. It is then required that it should be sent below, when it has been affirmed, to be executed; or if it has been reversed and a venire facias de novo has been awarded, that the action may be tried again before such court. It is necessary for this purpose that the record be remitted to the court below, and this is effected by means of a remittitur, which is an entry on the records of the court above that the record of the case has been returned to the court whence it was removed. A certificate made by the clerk of the supreme or superior court to that effect is also called a remittitur. On the return of the record to the court from which it was removed by writ of error, the case will be proceeded in by a venire facias de novo, by execution, or by scire facias against the bail in error, as the case may be, conformably to the judgment of the supreme court.

3363. A certiorari is a writ issued by a supreme or superior court having jurisdiction, directed to the judges or officers of an inferior court, commanding them to return the records of a cause depending before them in a particular case.

In general, there are two ways by which a superior court, which has a supervisory power over all inferior jurisdictions, can correct the erroneous proceedings of inferior courts; the first is by writ of error, which is of right, in civil cases, ex debito justitice, and which lies only after judgment rendered in the inferior court; the second is by certiorari, which is granted only at the discretion of the court, and generally lies at any stage of the proceedings in the court below. A question which is not easily settled frequently arises, which of these two remedies ought to be adopted in practice. It may, however, be laid down generally that when the lower court proceeds according to the course of the common law, and the court above can give a right judgment where the inferior court has given a wrong one, then a writ of error is the proper remedy. It is also equally clear that when neither this course of proceeding can be had nor such right judgment given, then the certiorari is the proper remedy.

The writ of certiorari is issued in two kinds of cases; in one species it accompanies a writ of error, and is issued for the purpose of compelling the production of the whole record when a diminution has been suggested and shown.110 The other kind, which is the only one which will occupy our attention under this section, does not accompany the writ of error, but lies in many cases where a writ of error cannot by law give a right judgment when the lower court gives a wrong one, or in which the proceedings are not according to the course of the common law. In these cases, where the writ of error is not the proper remedy, the certiorari is the ground of the proceeding. It is first used to bring up

. the record and proceedings from the court below; when returned, the court above issues a notice to the party defendant or respondent in the nature of a

a

107 Rolle, Abr. 778; Bacon, Abr. Execution, Q; Boal's Appeal, 2 Rawle, Penn. 37; Bruere v. Britton, 1 Spenc. N. J. 168; George v. Starrett, 40 N. H. 135.

108 Horton v. Wilde, 8 Gray, Mass. 425.
109 Bacon, Abr. Certiorari, A; 4 Viner, Abr. 330; Nelson, Abr. Certiorari.

110 Trudeau v. New Orleans R. R., 15 La. Ann. 717; Gregory v. Slaughter, 19 Ind. 342; Ciark v. Hackett, 1 Black, 77.

summons." After this the court above proceed to act according to law and justice in the decision of the case.

In the examination of this subject we will consider the mode of obtaining a certiorari, how the certiorari is to be returned, how far the certiorari operates as a supersedeas, and when a procedendo will be ordered.

3364. The regular mode of obtaining a certiorari is in general by motion or petition, and the facts upon which it is granted must be established by the oath or affirmation of the applicant unless such facts appear upon the record.112 As a writ of certiorari is clearly not a writ ex debito justitice, because it lies to the court below in any stage of its proceedings not always on the ground of an error in its judgment, but often merely for the purpose of examining its proceedings in order to see that it has not exceeded its jurisdiction or acted irregularly, on surmise of erroneous proceedings the court above must exercise discretionary power in issuing this writ not accompanying a writ of error, and must therefore not allow it to be issued except when claimed by the government, and except in some cases where this writ, from long usage and for particular reasons, has become a matter of course. In general, security must be given to prosecute the writ of certiorari with effect.113

The writ of certiorari will not in general be granted where the party has a remedy by appeal or other proceeding as of right.114 The petition should point out the errors complained of specifically."

3365. The certiorari ought to be returned under the seal of the inferior court, or of the justices to whom it is directed ; and if such court have no proper seal, it may be returned under any seal. It must be returned by the person to whom the writ is directed; but a return made by the clerk of the circuit court of the United States to which a certiorari was directed was held to be sufficient. 116

The return is conclusive as to the facts, and is the only thing to be considered by the court above.117 In some states, however, by statute the proceedings upon a certiorari are a trial of the whole matter de novo. 118

The return should set out the evidence taken below.

116

11 It has never been the practice in Pennsylvania to serve a copy of the writ of certiorari on the attorney of record, as in England; nor is the writ, as is the case in the supreme court of the United States, accompanied with a citation the party. Commonwealth v. McAllister, 1 Watts, Penn. 308.

The writ must be served in Minnesota. Bunday v. Dunbar, 5 Minn. 444. The writ of certiorari is the proper remedy in cases where the proceeding is not according to the common law, and where no remedy is provided by appeal, exceptions, error, or otherwise. Mendon v. Commissioners, 2 All. Mass. 463; Whitney v. Delegates, 14 Cal. 479. The granting it is a matter of discretion. State v. Hudson, 5 Dutch. N. J. 115; In re, Lantis, 9 Mich. 324. When it is asked to review the proceedings of public tribunals, the principal reason for granting it is the want or excess of jurisdiction. Henshaw v. Supervisors, 16 Cal. 208.

It does not lie to revise acts simply ministerial in their character, or to correct errors in the treatment of matters properly within the jurisdiction of the tribunal below. Robinson v. Supervisors, 16 Cal. 208; Tallmadge v. Potter, 12 Wisc. 317.

12 Finch v. McDowell, 7 Cow. N. Y. 538; Kehr v. Gautier, T. U. P. Charlt. Ga. 279; Hunter v. Hunter, id. 303; People v. Onondaga, 8 Wend. N. Y. 519; Harrison v. Clapp, 25 III. 575; Rollison v. Hope, 18 Tex. 446.

113 Johnson v. McKissack, 20 Tex. 160.
114 Davis v. Horn, 4 Greene, Iowa, 94; Clary v. Hoagland, 13 Cal. 173.

116 Chambers v. Lewis, 9 Iowa, 583; Hagood v. Grimes, 24 Tex. 15; Clifford v. Waldrop, 23 Ill. 336.

116 Stewart v. Ingle, 9 Wheat. 526; see Lambert v. People, 7 Cow. N. Y. 103; Ball v. Van Houten, 1 South. N. J. 32.

117 Commissioners v. Supervisors, 27 Ill. 140; Mendon v. Worcester, 5 All. Mass. 13; Chase v. Miller, 41 Penn. St. 403; Hyde v. Nelson, 11 Mich. 353; Schroder v. Crary, 11 Iowa, 555; Taylor v. Bissell, 1 Minn. 225.

118 Commissioners v. Supervisors, 27 III. 140.
19 Mullins v. People, 24 N. Y. 399; Jackson v. People, 9 Mich. 111.
VOL. II.-20

321

3366. After the cause has been removed by certiorari, there is no record in the court below, and, therefore, that court cannot proceed in the cause in any respect, and all its subsequent acts will be erroneous. If before the delivery of the certiorari to the judges of the inferior courts execution had been issued by the court, the judges to whom the certiorari was delivered ought immediately to have awarded a supersedeas to the sheriff, in order to have stopped the execution. The delivery of such supersedeas to the sheriff before he has commenced the execution of the writ renders his subsequent acts wholly void; but if the execution was partially executed before the supersedeas was delivered to him, he may afterward go through with it.120

3367. If the certiorari has been improperly issued by a fraud upon the court, a false allegation, and the like, the courts above will issue a procedendo to the court, commissioners, or others below, to proceed in the cause or busi

By this writ of procedendo the cause is remitted to the court whence the record came, and it commands the inferior court to proceed to the final hearing and determination of the same. It issues not only in the cases above mentioned, but also when it does not appear to the superior court that the suggestion upon which the cause has been removed is sufficiently proved.

3367, a. In some states a remedy for an erroneous judgment is given by statute by a writ of review. It lies for matter outside of the record which cannot be reached by writ of error.121 Thus

Thus if the error assigned is want of legal service of process, if the record shows that the requirements of the law were not complied with, the remedy is by writ of error. But if the records show service when in fact there was none, the remedy is by writ of review. The causes for which a writ of review is granted are fixed by statute. To obtain the writ a petition is presented, and the writ is granted sometimes in the discretion of the court, and in some cases of right. When the defendant lives out of the state, and jurisdiction has been obtained by attachment of his property and service of process by advertisement, the wriť in general may be sued out within a certain time after judgment. The writ when issued is the commencement of a new suit, in which the whole matter is tried de novo, and on the same issue as in the former suit.122

A bond to prosecute the writ to judgment is usually required as a preliminary to issuing the writ or to granting a supersedeas.

This writ is in the nature of an equitable remedy, and does not lie to enforce strict legal rights against equity. 123

3368. In England there is an additional remedy by a writ of false judgment which lies when an erroneous judgment is given, in a court not of record, in which the suitors are judges.121 Though this writ is perhaps never used in this country, it is proper in a work like the present to take a brief view of it.

This writ may be sued out of chancery by any one against whom the judgment is given, his heir, executor, or administrator ; or by any one who has sustained damages, though the other defendants do not join, as they ought to do, in error. If the writ be brought upon a judgment in the sheriff's court, it is

120 Blanchard v. Myers, 9 Johns. N. Y. 66 ; Patchin v. Mayor of Brooklyn, 13 Wend. N. Y. 664; Kingsland v. Gould, 1 Halst. N. J. 161; Mairs v. Sparks, 2 South. N. J. 513; Gardiner v. Murray, 4 Yeates, Penn. 560.

121 Ely v. Hawkins, 15 Ind. 230; Dwinel v. Godfrey, 44 Me. 65.

123 Johnson v. Atlantic R. R., 43 N. H. 410; Curtis v. Curtis, 47 Me. 525; Andrews v. Foster, 42 N. H. 376.

123 Yeager's Appeal, 34 Penn. St. 173; Russell's Appeal, 34 Penn. St. 258; Weld v. Sabin, 20 N. H. 533. 124 Fitzherbert, Nat. Brev. 18.

in the nature of a recordari ; 125 or if upon a judgment in another court, it is in the nature of an accedas ad curiam.123

Upon the return of the writ, when the whole proceedings are certified, and not before, the plaintiff is required to assign errors. To compel a joinder in error, the plaintiff may have a scire facias ad audiendum errores ; or he may

; serve a rule, as on a writ af error. And upon two scire faciases ad audiendum errores awarded, and nihils returned, or scire feci and default made, the judgment shall be reversed.

When the parties are once in court, the subsequent proceedings in false judgment are the same as in error.

123 See Bouvier, Law Dict. Recordari Facias Loquelam.
126 Fitzherbert, Nat. Brev. 18; Bouvier, Law Dict. Accedas ad Curiam.

323

CHAPTER XVII.

EXECUTION.

3369. Definition.
3370. The right to issue an execution.
3371. The form of executions.
3372. When an execution should be issued.

3373. The effect of an execution.
3374-3401. The several kinds of executions.

3375. Executions considered as to their end.
3376–3401. Executions considered as to the objects they are to act upon.
3377-3381. Executions to recover specific things.

3378. The writ of habere facias seisinam.
3379. The writ of habere facias possessionem.
3380. The writ of retorno habendo.

3381. The writ of distringas.
3382-3401. Executions for the recovery of money.
3383–3385. Executions against the body.

3384. The capias ad satisfaciendum.

3385. Attachment.
3386–3401. Executiong against goods, chattels, and land.
3387-3398. The writ of fieri facias.

3388. The form of the writ.
3389. The effect of the writ.
3390. The execution of the writ.
3391. What goods may be seized.
3392. The sale by the sheriff.
3393. The effect of seizure of personal property.
3394. The seizure and sale of lands under execution.
3395. The mode of levying on land.
3396. The return of the writ of fieri facias.
3399. The venditioni exponas.
3400. The levari facias.
3401. The writ of elegit.

3369. An execution has been called the life of the law, and the object of all the proceedings in an action is to obtain this writ. After a final judgment has been entered by the court, by which the plaintiff is adjudged entitled to a thing in the possession of the defendant, or to a sum of money which is to be paid by the latter to the former, unless the plaintiff's adjudged right be suspended by proceedings in the nature of an appeal, or by his own agreement, he is entitled to sue an execution in order to obtain the fruit of his judgment.

By execution is meant the act of carrying into effect the final judgment of a court or other jurisdiction. The writ which authorizes the officer to carry into effect such judgment, and which is the object to be examined in this chapter, is also called an execution.

This chapter will be divided into five heads : of the right to issue an execution; of the form of execution; of the time when an execution should be

« ZurückWeiter »