United States Supreme Court Cases & Opinions

U.S. Supreme Court

Evans v. Gee, 39 U.S. 1 (1840)

Evans v. Gee

39 U.S. 1

Syllabus

It is the settled doctrine of the Supreme Court of the United States that a writ of error does not lie from the circuit court on a refusal of a motion to quash an execution;, such refusal not being a final judgment under the twenty-second section of the Judiciary Act of 1789.

The opinion of the Court on the case of Boyle v. Zacharie and Turner, 6 Pet. 648, cited and affirmed.

In the Circuit Court of Alabama, an action was instituted by Sterling H. Gee, the defendant in error, against Thomas Evans on a bill of exchange drawn by Harris G. Evans in favor of Thomas Evans on George M. Rives, of Mobile, for five thousand three hundred and fifty dollars, dated 16 December, 1834, due twelve months after date, negotiable and payable at the office of discount and deposited of the Branch Bank of the United States at Mobile for value received, and protested for nonacceptance.

The declaration does not charge that notice of the nonacceptance was given to the endorser. No proof was given at the trial of such notice.

To this declaration the defendant (the endorser of the bill) demurred, and the plaintiff was nonsuited; afterwards, at the same term, the nonsuit was struck out and the cause continued. At the next term, a jury was empanelled, who found a verdict for plaintiff on which judgment was entered.

Thomas Evans, the defendant in this judgment, died 12 September, 1837; and on 16 March, 1838, a fieri facias issued on the judgment.

Page 39 U. S. 2

The administrator of the deceased made a motion to quash this execution at May term, 1838, but the court overruled the motion and gave judgment, sustaining the execution.

The defendant prosecuted this writ of error.