A writ of error will not lie to a circuit court of the United
States to revise its decision in refusing to grant a writ of
venditioni exponas, issued on a judgment obtained in that
court. A writ of error does not lie in such a case.
All motions to quash executions are addressed to the sound
discretion of the court, and as a summary relief which the court is
not compellable to allow. The party is deprived of no right by the
refusal, and he is at full liberty to redress his grievance by writ
of error or
audita querela or other remedy known to the
common law. The refusal to quash is not, in the sense of the common
law, a judgment, much less a final judgment. It is a mere
interlocutory order. Even at common law, error only lies from a
final judgment, and by the express provisions of the Judiciary Act
of 1789, a writ of error lies to this Court only in cases of final
judgments.
The acts of Maryland regulating the proceedings on injunctions
and other chancery proceedings and giving certain effects to them
in courts of law are of no force in relation to the courts of the
United States. The chancery jurisdiction given by the Constitution
and laws of the United States is the same in all the states of the
Union, and the rule of decision is the same in all. In the exercise
of that jurisdiction, the courts of the United States are not
governed by the state practice, but the Act of Congress of 1792,
chap. 36, has provided that the modes of proceeding in equity suits
shall be according to the principles, rules, and usages which
belong to courts of equity, as contradistinguished from courts of
law. And the settled doctrine of this Court is that the remedies in
equity are to be administered not according to the state practice,
but according to the practice of courts of equity in the parent
country, as contradistinguished from courts of law, subject, of
course, to the provisions of the acts of Congress and to such
alterations and rules as in the exercise of the powers delegated by
those acts the courts of the United States may from time to time
prescribe.
In respect to suits at common law, it is true that the laws of
the United States have adopted the forms of writs and executions
and other process, and the modes of proceeding, authorized and used
under the state laws, subject, however, to such alterations and
additions as may from time to time be made by the courts of the
United States. But writs of execution issuing from the courts of
the United States in virtue of those provisions are not controlled
or controllable in their general operation or effect by, any
collateral regulations and restrictions which the state laws have
imposed upon the state courts to govern
them in the actual use, suspension, or superseding of them. Such
regulations and restrictions are exclusively addressed to the state
tribunals, and have no efficacy in the courts of the United States
unless adopted by them.
The cases of
Palmer v.
Allen, 7 Cranch 550,
11 U. S. 564;
Wayman v.
Southard, 10 Wheat. 1, and
Bank of the
United States v. Halstead, 10 Wheat. 51, cited.
Page 31 U. S. 649
The facts of this case are stated, in part, in the preceding
equity case and in the opinion of the Court, delivered by MR.
JUSTICE STORY.
The defendants in error, citizens of Louisiana and merchants of
New Orleans, instituted a suit in the circuit court against Hugh
Boyle of Baltimore for the amount which they had been obliged to
pay as his securities in an attachment against his property at New
Orleans. The action was brought on 23 December, 1819.
Mr. Boyle appeared to the suit at May term, 1820, and filed a
plea of nonassumpsit, and issue was joined; the cause was then
continued to November term, 1820, and then to May term, 1821, when
the defendant withdrew his plea and confessed judgment for the
damages in the declaration and costs, these damages to be released
upon the payment of $3,113.80, with interest from 15 November,
1819, and $17.25 costs, "subject to the legal operation of the
defendant's discharge under the insolvent laws of Maryland." On 8
October, 1822, a
scire facias was issued to revive the
judgment, and a fiat was entered on 7 November, 1823, and for
$16.75 costs on fiat.
A
fieri facias, to lie, was issued to December term,
1824, and renewed from time to time until 12 December, 1827, when
it was taken out of the office and delivered to the marshal, and
was by him, on 31 March, 1828, levied on the ship called
The
General Smith, and so by him returned to May term, 1828, in
these words: "Levied as per schedule on 31 March, 1828. Injunction
issued on 8 April, 1828."
On 7 April, 1828, the plaintiff in error filed his bill of
complaint on the equity side of the circuit court against Zacharie
& Turner to stay proceedings at law upon the judgment, and a
writ of injunction was granted by the circuit judge and issued on
the 8th day of the same month.
The bill which had been filed by the plaintiff in error on the
equity side of the court having been dismissed, the attorney for
the plaintiffs, on 10 June, 1829, gave an order to the clerk to
issue a writ of
venditioni exponas, which was issued on 29
August, 1829, and delivered to the marshal, who
Page 31 U. S. 650
made a return thereof to the December term, 1829, that he had
received the amount of the execution from the defendant, and had it
ready to bring into court.
The defendant at the same term made a motion to quash the writ
of
venditioni exponas and filed the following reasons in
support of his motion.
1. That the judge who granted the said writ of injunction
required the defendant, Hugh Boyle, to execute an injunction bond
or obligation before the said writ was issued. The bond was in the
common form.
2. And also the one hundredth rule of the court, adopted, with
others, by the Circuit Court of the United States for the Fourth
Circuit, in and for the District of Maryland, passed and adopted by
the court as the rules for the orderly conducting of business in
the court in cases at common law and to regulate the practice in
the court at November term 1802.
One Hundredth Rule.
"Writs of
capias ad satisfaciendum, fieri facias (or
attachment by way of execution), as authorized by the act of
assembly of this state, may issue at the option of the party in
whose favor any judgment shall be rendered for the recovery of any
debt or damages, but only one execution shall be served returnable
to the same court unless sufficient money shall not be levied to
satisfy the judgment, in which case the
capias ad
satisfaciendum may be afterwards served for the residue, which
shall be endorsed thereon, and the costs of the writ not served
shall be paid by the party issuing it."
And also the Act of the General Assembly of Maryland, passed at
November session, 1799, chapter 79, entitled "An act to prevent
unnecessary delay and expense, and for the further advancement of
justice in the court of chancery," and also the Act of the General
Assembly of Maryland entitled "An act for the ease of the
inhabitants in examining evidences relating to the bounds of lands,
and in the manner of obtaining injunctions," passed at October
session, 1723, chapter 8.
And also appealed to the knowledge of the court that according
to the uniform and immemorial practice in the State of Maryland
with regard to the state courts, whenever a writ of
fieri
facias had been levied and the proceedings were stayed by
injunction before the day of sale, the officer who had levied the
writ of
fieri facias delivered up the property seized
by
Page 31 U. S. 651
him to the defendant at law upon the service upon the said
officer of notice of the writ of injunction.
The court overruled the motion and ordered and directed the
marshal to bring into court the money mentioned in his return, and
the cause was removed to this court by writ of error.
Page 31 U. S. 654
MR. JUSTICE STORY delivered the opinion of the Court.
This is a writ of error to the Circuit Court of the District of
Maryland between the same parties and upon the same judgment on
which the bill in equity, which has just been disposed of, was
founded. The facts relative to the judgments need not be again
repeated, as they are fully disclosed in the
31 U.
S.
The object of the present writ of error is to revise the
decision of the circuit court in refusing to quash a writ of
venditioni exponas issued for the sale of the ship
General Smith, which was seized upon the
fieri
facias on the judgment, upon a motion made by the counsel for
Boyle for that purpose.
Page 31 U. S. 655
The
fieri facias was levied on the ship on 31 March,
1828; the bill in equity was filed, and an injunction awarded on
the 8th of the succeeding April. On 8 May following, the writ of
fieri facias was returned to the circuit court with the
marshal's return thereon, "levied as per schedule on 31 March,
1828. Injunction issued on 8 April, 1828." On 29 August, 1829, a
writ of
venditioni exponas issued from the circuit court,
returnable to the next December term of the court. At the return
term, a motion was made in behalf of Boyle to quash the
venditioni exponas, grounded, among other things, upon the
injunction, and bond given in pursuance thereof, and the provisions
of the Act of Maryland of 1799, chap. 79, and the Act of Maryland
of 1723, chap. 8. A rule was then made at the same term upon the
marshal to return the writ of
venditioni exponas, upon
which he made a return, in substance, that the amount of the money
had been paid into his hands, and was now in bank to his credit, to
be returned as made under the writ of
venditioni exponas,
if the court should be of opinion that it rightfully issued, and
empowered and obliged the marshal to sell the ship seized under the
fieri facias issued in 1828, stayed by injunction as
aforesaid. The court overruled the motion to quash the
venditioni exponas, and ordered the money returned on the
writ to be brought into court. The present writ of error is brought
upon this refusal to quash the
venditioni exponas.
The first question naturally presenting itself upon this posture
of the facts is whether a writ of error lies in such a case. It is
material to state that no error is assigned on the original
judgment, or on the award of the
fieri facias, which
indeed are conceded to have been rightfully issued, and to be above
exception. But the error assigned is the supposed irregularity and
incorrectness of the award of the
venditioni exponas after
the writ of injunction from the chancery side of the court had been
granted.
The argument to maintain the writ of error has proceeded in a
great measure upon grounds which are not in the slightest degree
controverted by this Court. It is admitted that the language in
Co.Litt. 288b is entirely correct in stating that "a writ of error
lieth when a man is grieved by an error in
Page 31 U. S. 656
the foundation, proceeding, judgment or execution" in a suit.
But it is added in the same authority that "without a judgment on
an award in the nature of a judgment, no writ of error doth lie."
If, therefore, there is an erroneous award of execution, not
warranted by the judgment, or erroneous proceedings under the
execution, a writ of error will lie to redress the grievance. The
question here is not whether a writ of error lies to an erroneous
award of execution, for there was no error in the award of the
fieri facias. But the question is whether a writ of error
lies on the refusal to quash the auxiliary process of
venditioni exponas upon mere motion. In modern times,
courts of law will often interfere by summary proceedings on motion
and quash an execution erroneously awarded where a writ of error or
other remedy, such as a writ of
audita querela, would
clearly lie. But because a court may, it does not follow that it is
bound thus to act in a summary manner, for in such cases the motion
is not granted
ex debito justitiae, but in the exercise of
a sound discretion by the court. The relief is allowed or refused
according to circumstances, and it is by no means uncommon for the
court to refuse to interfere upon motion in cases where the
proceedings are clearly erroneous, and to put the party to his writ
of error or other remedy, for the refusal of the motion leaves
every remedy which is of right open to him.
In
Brooks v. Hunt, 17 Johns. 484, Mr. Chancellor Kent,
in delivering the opinion of the court of errors alluding to this
practice, said
"It is not an uncommon thing for a court of law, if the case be
difficult or dubious, to refuse to relieve a party after judgment
and execution in a summary way by motion, and to put him to his
audita querela."
That was a case very similar to the present. A motion was made
to the supreme court of New York to set aside a
fieri
facias on the ground that the party was discharged under the
insolvent laws of that state. The court refused the motion, and on
error brought, the Court of Errors of New York quashed the writ of
error. Mr. Chancellor Kent, on behalf of the court, assigned as one
of the grounds of quashing the writ of error that the rule or order
denying the motion was not a judgment within the meaning of the
constitution or laws of New York. It was only a decision upon a
collateral or interlocutory point,
Page 31 U. S. 657
and could not well be distinguished from a variety of other
special motions and orders which are made in the progress of a suit
and which have never been deemed the foundation of a writ of error.
A writ of error would only lie upon a final judgment or
determination of a cause, and it was never known to lie upon a
motion to set aside process. And in the close of his opinion, he
emphatically observed, if the case
"is to be carried from this court to the Supreme Court of the
United States, I should hope, for the credit of our practice, it
might be on the
audita querela, and not upon such a
strange mode of proceeding as that of a writ of error brought upon
a motion and affidavit."
There are other cases leading to the same conclusion.
See
Wardell v. Eden, 1 Johns. 531, note.
Wicket v.
Creamer, 1 Salk. 264.
Johnson v. Harvey, 4 Mass. 483.
Bleasdale v. Darby, 9 Price 600.
Clason v.
Shotwell, 1 Tidd's Prac. 470, 471; Kent's (Chancellor)
Opinion, 12 Johns. 31, 50. Com.Dig. Pleader, 3 B. 12. A very strong
case illustrating the general doctrine is that error will not lie
to the refusal of a court to grant a peremptory mandamus upon a
return made to a prior mandamus which the court allowed as
sufficient. This was held by the House of Lords in
Pender v.
Herle, 3 Bro.Parl.Cases 505.
We consider all motions of this sort to quash executions as
addressed to the sound discretion of the court and as a summary
relief which the court is not compellable to allow. The party is
deprived of no right by the refusal, and he is at full liberty to
redress his grievance by writ of error or
audita querela
or other remedy known to the common law. The refusal to quash is
not, in the sense of the common law, a judgment; much less is it a
final judgment. It is a mere interlocutory order. Even at the
common law, error only lies from a final judgment, and by the
express provisions of the Judiciary Act of 1786, chap. 20, sec. 22,
a writ of error lies to this Court only in cases of final
judgments.
But if this objection were not, as we think it is, insuperable,
there would be other decisive objections against the party. In the
first place, the very ground of argument to maintain the motion to
quash is that the injunction operated as a supersedeas of the
execution according to the Acts of Maryland of 1723, chap. 8, and
of 1799, chap. 79, regulating proceedings
Page 31 U. S. 658
in chancery and injunctions, which give to an injunction the
effect of a supersedeas at law. But the acts of Maryland regulating
the proceedings on injunctions and other chancery proceedings and
giving certain effects to them in courts of law are of no force in
relation to the courts of the United States.
The chancery jurisdiction given by the Constitution and laws of
the United States is the same in all the states of the union, and
the rule of decision is the same in all. In the exercise of that
jurisdiction, the courts of the United States are not governed by
the state practice, but the Act of congress of 1792, ch. 36, has
provided that the modes of proceeding in equity suits shall be
according to the principles, rules, and usages which belong to
courts of equity, as contradistinguished from courts of law. And
the settled doctrine of this Court is that the remedies in equity
are to be administered not according to the state practice, but
according to the practice of courts of equity in the parent
country, as contradistinguished from that of courts of law,
subject, of course, to the provisions of the acts of congress and
to such alterations and rules as, in the exercise of the powers
delegated by those acts, the courts of the United States may from
time to time, prescribe.
Robinson v.
Campbell, 3 Wheat. 212;
United
States v. Howland, 4 Wheat. 108. So that, in this
view of the matter, the effect of the injunction granted by the
circuit court was to be decided by the general principles of courts
of equity, and not by any peculiar statute enactments of the State
of Maryland.
Strictly speaking, at the common law an injunction in equity
does not operate as a supersedeas, although it may furnish a proper
ground for the court of law, in which the judgment is rendered, to
interfere by summary order to quash or stay the proceedings on the
execution. If the injunction is disobeyed, a court of equity has
its own mode of administering suitable redress. But a court of law
is under no obligations to enforce it as a matter of right or duty.
In respect to suits at common law, it is true that the laws of the
United States have adopted the forms of writs, executions, and
other process, and the modes of proceeding authorized and used
under the state laws, subject, however, to such alterations and
additions as may from time to time be made by the courts of the
United States. But writs and
Page 31 U. S. 659
executions, issuing from the courts of the United States in
virtue of these provisions, are not controlled or controllable in
their general operation and effect by any collateral regulations
and restrictions which the state laws have imposed upon the state
courts to govern them in the actual use, suspension, or superseding
of them. Such regulations and restrictions are exclusively
addressed to the state tribunals, and have no efficacy in the
courts of the United States unless adopted by them. The case of
Palmer v.
Allen, 7 Cranch 550,
11 U. S. 564,
furnishes a commentary on this point, and it is freely expounded
and illustrated in the subsequent cases of
Wayman v.
Southard, 10 Wheat. 1, and
United
States Bank v. Halstead, 10 Wheat. 51. No rule of
the Circuit Court of Maryland has been produced which adopts these
state regulations, and the existence of one is not to be
assumed.
But if the injunction could be admitted to operate as a
supersedeas at law under any circumstances in the courts of the
United States, there would yet remain a decisive objection against
its application in the present case. Nothing is better settled at
the common law than the doctrine that a supersedeas, in order to
stay proceedings on an execution, must come before there is a levy
made under the execution, for if it comes afterwards, the sheriff
is at liberty to proceed upon a writ of
venditioni exponas
to sell the goods. There are many cases in the books to this
effect, but they are admirably summed up by Lord Chief Justice
Willis in delivering the opinion of the court in
Meriton v.
Stevens, Willis 271, 280, to which alone therefore it seems
necessary to refer.
See Charter v. Pector, Cro.Eliz. 597,
Moore 542;
Clark v. Withers, 6 Mod. 290, 293, 298;
S.C. 1 Salk. 321;
Blanchard v. Myers, 9 John. 66;
2 Tidd's Pr. 1072; Com.Dig. Execution, C. 5, C. 8; Bac.Abridg.
Supersedeas, G.
See also McCullough v. Guetner, 1 Binn.
214.
In the present case, the levy on the
fieri facias was
made more than a week before the injunction was granted, so that,
according to the course of the common law, it ought not to operate
as a supersedeas to the
venditioni exponas.
In every view of this case it is clear that there is no error in
the proceedings which is revisable by this Court. Whatever might
have been properly done by the circuit court upon
Page 31 U. S. 660
the motion to quash, in order to give full effect to its own
injunction, was matter exclusively for the consideration of that
court in the exercise of its discretion, and is not reexaminable
here. And there is no pretense of any error in the judgment or
award of the execution under which the levy was made. The judgment
of the circuit court is therefore
Affirmed with damages at the rate of six percent and
costs.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Maryland and was argued by counsel, on consideration whereof it is
ordered and adjudged by this Court that the judgment of the said
circuit court in this cause be and the same is hereby affirmed with
costs and damages at the rate of six percentum per annum.
