AUDITA QUERELA SECTION 9. AUDITA QUERELA 3 Blackstone's Commentaries 406 773 An audita querela is where a defendant, against whom judgment is recovered, and who is therefore in danger of execution, or perhaps actually in execution, may be relieved upon good matter of discharge, which has happened since the judgment; as if the plaintiff hath given him a general release; or if the defendant hath paid the debt to the plaintiff without procuring satisfaction to be entered on the record. In these and the like cases, wherein the defendant hath good matter to plead, but hath had no opportunity of pleading it (either at the beginning of the suit, or puis darrein continuance, which, as was shown in a former chapter, must always be before judgment), an audita querela lies, in the nature of a bill in equity, an execution as above mentioned to be void, we must also hold, with Mr. Justice Butler (1 Rich. (S. Car.) 21) that 'no conveyance can be good, which rests upon that which is null and void.'" Accord: Hammat v. Wyman, 9 Mass. 138 (1812); King v. Goodwin, 16 Mass. 63 (1819); Jackson ex dem. Clark v. Morse, 18 Johns. (N. Y.) 441, 9 Am. Dec. 225 (1821); Bates v. Pilling, 6 B. & C. 38 (1826); 9 Dis. R. 44; 5 L. J. (O. S.) K. B. 40; Jackson ex dem. Anderson v. Anderson, 4 Wend. (N. Y.) 474 (1830); Swan v. Saddlemire, 8 Wend. (N. Y.) 676 (1832); Hunter v. Stevenson, I Hill (S. Car.) 415 (1833); Cameron v. Irwin, 5 Hill (N. Y.) 272 (1843); Thrower v. Vaughan, I Rich. L. (S. Car.) 18 (1844); Mouchat v. Brown, 3 Rich. L. (S. Car.) 117 (1846); Neilson v. Neilson, 5 Barb. (N. Y.) 565 (1849); Den er dem. Murrell v. Roberts, 11 Ired. (N. Car.) 33, 424, 53 Am. Dec. 419 (1850); Craft v. Merrill, 14 N. Y. 456 (1856); State v. Salyers, 19 Ind. 432 (1862); Weston v. Clark, 37 Mo. 568 (1866); Lee v. Rogers, 2 Sawyer 549, Fed. Cas. No. 8201 (1874); Splahn v. Gillespie, 48 Ind. 397 (1874); Finley v. Gant, 8 Baxt. (Tenn.) 148 (1874); State v. Prime, 54 Ind. 450 (1876); Frost v. Yonkers Sav. Bank, 70 N. Y. 553, 26 Am. Rep. 627 (1877); Huff v. Morton, 83 Mo. 399 (1884); Chapin v. McLaren, 105 Ind. 563, 5 N. E. 688 (1885); Shaffer v. McCrakin, 90 Iowa 578, 58 N. W. 910, 48 Am. St. 465 (1894); O'Brien v. Allen, 42 Wash. 393, 85 Pac. 8 (1906). Contra: Legard v. Daly, 1 Ves. Sr. 192 (1748) semble; Samms v. Alexander, 3 Yeates (Pa.) 268 (1801); Boren v. McGehee, 6 Port. (Ala.) 432, 31 Am. Dec. 695 (1837); Gibbs v. Neely, 7 Watts (Pa.) 305 (1838); Doe ex dem. Van Campen v. Snyder, 3 How. (Miss.) 66, 32 Am. Dec. 311 (1838); Bishop v. Gregory, 5 B. Mon. (Ky.) 359, 27 Ky. L. 478, 85 S. W. 1197 (1845); Dean v. Connelly, 6 Pa. St. 239 (1847); Morton v. Grenada Male & Female Academies, 8 Sm. & M. (Miss.) 773 (1847) semble; Warner v. Blakeman, 36 Barb. (N. Y.) 501 (1862); Nichols v. Dissler, 31 N. J. L. 461, 86 Am. Dec. 219 (1863); Woltien v. O'Malley, 12 Lanc. Bar (Pa.) 6 (1880); Saunders v. Gould, 124 Pa. St. 237, 16 Atl. 807 (1889); Slater v. Alston, 103 Ala. 605, 15 So. 944, 49 Am. St. 55 (1893). In Hoffman v. Strohecker, 7 Watts (Pa.) 86, 32 Am. Dec. 740 (1838), it is said per Rogers, J.: “In Swan v. Saddlemire, 8 Wend. (N. Y.) 676, it is ruled that an execution upon a judgment, which has been paid and satisfied, is absolutely void, and not merely voidable, and a purchaser under such execution acquires no title. If it is intended to say that a purchaser without notice acquires no title, I should adopt the principle with great hesitation, and should be much inclined to doubt the policy of establishing such a rule. It would not be for the plaintiff and defendant, under such circumstances, to complain, as the injury would result from their own fraud or negligence, in not causing satisfaction to be entered on the judgment. It would be imposing upon a purchaser at sheriff's sale the necessity of ascertaining whether the debt had been paid. He has a right to purchase on the faith of the records of the court which import verity." See also Gibson v. Winslow, 38 Pa. St. 49 (1860); Capital Bank of Topeka v. Huntoon, 35 Kans. 577, II Pac. 369 (1886); Kezar v. Elkins, 52 Vt. 119 (1879). to be relieved against the oppression of the plaintiff. It is a writ directed to the court stating that the complaint of the defendant hath been heard, audita querela defendentis, and then, setting out the matter of the complaint, it at length enjoins the court to call the parties before them, and, having heard their allegations and proofs, to cause justice to be done between them. It also lies for bail, when judgment is obtained against them by scire facias to answer the debt of their principal, and it happens afterwards that the original judgment against their principal is reversed; for here the bail, after judgment had against them, have no opportunity to plead this special matter, and therefore they shall have redress by audita querela; which is a writ of a most remedial nature, and seems to have been invented lest in any case there should be an oppressive defect of justice, where a party who hath a good defense is too late to make it in the ordinary forms of law. But the indulgence now shown by the courts in granting a summary relief upon a motion, in cases of such evident oppression, has almost rendered useless the writ of audita querela, and has driven it quite out of practice.63 63a aTurner v. Davies, 2 William's Saunders, 137 (1670), and notes. In Sutton v. Bishop, 4 Burr. 2283 (1769), audita querela is referred to by the court as an old legal remedy long disused and expensive, but in Baker v. Ridgway, 2 Bing. 41 (1824), it is said by Best, C. J., that audita querela is neither a difficult nor an obsolete proceeding, and in Simons v. Blake, 4 Dowl. 263 (1835), it was held that the court would relieve on summary motion if the case was clear but not otherwise. In England, the rules of the Supreme Court now provide, Order XLII, rule 27: "No proceeding by audita querela shall hereafter be used; but any party against whom judgment has been given may apply to the court or a judge for a stay of execution or other relief against such judgment, upon the ground of facts which have arisen too late to be pleaded; and the court or judge may give such relief and upon such terms as may be just." In Pennsylvania the writ is not obsolete, as was at one time supposed, and it has been occasionally resorted to. Schott v. McFarland, 1 Phila. (Pa.) 53 (1850); Daly v. Derringer, 1 Phila. (Pa.) 324 (1852); Kecn v. Vaughn, 48 Pa. 477 (1865); Emery v. Patton, 9 Phila. (Pa.) 125 (1873); Gordonier v. Billings, 77 Pa. St. 498 (1875) semble; Williams v. Butcher, 1 W. N. C. 304, 7 Leg. Gaz. 129 (1874); McLean v. Bindley, 114 Pa. St. 559, 8 Atl. 1 (1886) semble. In Commonwealth v. Berger, 8 Phila. (Pa.) 237 (1871), it is said per Paxson, J.: "It is too late to question the right to issue such writ in a case where the defendant has a defense which he has had no day in court to plead. But every relief that could be obtained by audita querela is now grantable on motion. The latter more simple and speedy form of proceeding has driven this ancient and cumbrous remedy out of general practice." The writ issues out of the court in which the judgment was entered, only upon petition and special allowance by the court. Waddington v. Vredenbergh, 2 Johns. Cas. 227 (1801); Dearie v. Ker, 7 D. & L. 231, 18 L. J. Ex. 448 (1849); Troup v. Ricardo, 33 Beav. 122 (1863); Newhart v. Wolfe, 102 Pa. 561 (1883). In New York it is said that the remedy by audita querela is not abolished by the code but is preserved and may be resorted to where something has occurred since the rendition of judgment making its enforcement unjust or inequitable or when some fact exists which could not have been pleaded in the former suit. Mallory v. Norton, 21 Barb. (N. Y.) 424 (1856); Śmith v. McCluskey, 45 Barb. (N. Y.) 610 (1866); Phillips v. Dusenberry, 8 Hun (N. Y.) 348 (1876). FOSS V. WITHAM 775 MARK H. FOSS v. GEORGE P. WITHAM. SUPREME JUDICIAL COURT OF MASSACHUSETTS, 1865 91 Mass. 572 Audita querela, brought to reverse a judgment erroneously rendered in favor of the defendant in an action brought by him against the plaintiff, who lived out of the state and had no sufficient notice. of the action; and to supersede an execution issued on such judgment. Judgment was entered in the Superior Court by Ames, J., reversing the judgment and superseding the execution, as prayed for; and an order was passed that the original action should be brought forward on the docket, and the entry of judgment and default be stricken off, and the action remain upon the docket for further directions; and to this order the plaintiff alleged exceptions. HOAR, J.: We are of opinion that the exceptions in this case must be sustained. The writ of audita querela is the commencement of a suit at common law, recognized also by statute in this commonwealth, in which the plaintiff asks to be relieved from a judgment or execution, or both, by reason of some matter affecting their validity which he has not had an opportunity to plead. If the execution has been satisfied in whole or in part, or he has been imprisoned upon it, he may recover compensation in damages in the audita querela. The writ in this case is properly framed for these objects. The plaintiff prays for the relief adapted to his case. But the defendant is not an actor in the suit; and no proceedings are to be had in it for his benefit. Either the plaintiff prevails in whole or in part, and recovers judgment to the extent to which he is entitled to it, or there is a judgment for the defendant, and this is the whole scope and effect of the audita querela. 3 Bl. Comm. 405, 406; Fitzh. Nat. Brev. 102, 105; Gen. Stats. ch. 145, sections 1-7; Lovejoy v. Webber, 10 Mass. 101; Dingman v. Myers, 13 Gray. 1.63b The plaintiff is entitled to a reversal of the judgment erroneously entered against him, to a supersedeas of the execution which improvidently issued, and to his costs. So far the judgment of the superior court was right, and should be supported. But we find no authority for making an order as to any further proceedings in the former suit, under this process. It has sometimes been the practice of courts to give the relief which an audita querela affords, in Accord: Hyde v. Morley, Cro. Eliz. 40 (1584); Child v. Durrant, Cro. Jac. 337 (1615); Flower v. Elgar, Cro. Car. 214 (1631); Dingman v. Myers, 79 Mass. I (1859); Marshall v. Merritt, 95 Mass. 274 (1866). See also, Anonymous, 1 Vent. 264 (1674); Anonymous, 12 Mod. 598 (1700); White v. Harris, 5 Humph. (Tenn.) 421 (1844); Alexander v. Abbott, 21 Vt. 476 (1849); Merritt v. Marshall, 100 Mass. 244 (1868); Folan v. Folan, 59 Maine 566 (1871); Radclyffe v. Barton, 161 Mass. 327, 37 N. E. 373 (1894), and cases there cited; Walter v. Foss, 67 Vt. 591, 32 Atl. 643 (1895); Russell Lumber Co. v. Smith, 82 Conn. 517, 74 Atl. 949 (1909); 4 Cyc. 1058; 3 Enc. Pl. & Pr. 113. Where the proceedings in an action are wholly void for want of jurisdiction there is no necessity for an audita querela. French v. White, 78 Vt. 89, 62 Atl. 35, 2 L. R. A. (N. S.) 804 (1905). a summary way, upon motion, when the facts are not in dispute and recent. Ld. Raym. 1295; 1 M. & S. 199; 4 Johns. 191; 17 Johns. 487; Lovejoy v. Webber, ubi supra. If the proceedings here had been upon motion, we do not mean to decide that they would have been erroneous. But the order to bring forward the former action, if it is competent to the court to make it, is an entirely separate matter, and is not to be entered as a part of the judgment in the present suit. Exceptions sustained. SECTION 10. SATISFACTION OF EXECUTIONS JINKS v. AMERICAN MTG. CO. OF SCOTLAND 102 Ga. 69 COBB, J.: The American Mortgage Company of Scotland, Limited, obtained a judgment against Jinks on the twenty-sixth day of February, 1890, for $1,200 principal, $226.28 interest, $142.62 attorney's fees, and $11.75 costs. On October 2, 1890, an execution issued on this judgment was levied upon certain land as the property of the defendant in execution. On the fifth day of December, 1893, the sheriff made the following entry upon the execution: "After duly advertising the within-described levied lands according to law in the 'Butler Herald' newspaper, the official gazette of the county, I this day exposed the same to sale before the court house door in the town of Butler, Taylor County, Georgia, within the legal hours of sale, and knocked the same off to Austin Corbin for the sum of nineteen hundred dollars, he being the highest and best bidder. This fifth day of December, 1893. C. A. J. Pope, Sheriff." On March 5, 1894, the sheriff levied the execution again upon a part of the property described in the former levy, as well as other property of the defendant. To this levy the defendant interposed an affidavit of illegality, setting up that prior to December 5, 1893, he had paid in cash upon the execution the sum of five hundred dollars and that this sum, together with the amount named in the entry of the sheriff relating to the former levy, was more than sufficient to discharge the execution. Upon the trial of the issue formed upon this affidavit of illegality, the judge directed a verdict in favor of the plaintiff in execution. In this we think that he erred. The entry of a sheriff on process in his hands is generally not traversable. Higgs v. Huson, 8 Ga. 317, 321. Such an entry may be traversed, however, for fraud or collusion. Tillman v. Davis, 28 Ga. 494; Sprinz v. Frank, 81 Ga. 162. The code "widened the laws of traverse as to returns of service." Civil Code, section 4988; Dozier v. Lamb, 59 Ga. 461. But the returns of sheriffs and other levying officers upon final process in their hands are still governed by the law as it stood before the code was adopted. JINKS V. AMERICAN MTG. CO. 777 It being admitted upon the trial that the payment of five hundred dollars had been made, and the execution when introduced in evidence showing an entry of a sale at which an amount more than sufficient to pay the balance due on the execution was realized, the execution appears on its face to have been paid off, and therefore a levy subsequent to such entry was prima facie void. As long as the entry of the sheriff reciting a sale at an amount more than that due on the execution stands upon the records unimpeached and unchallenged, such entry is conclusive upon the plaintiff in execution. If the entry is false, the officer making it is liable in damages to any one injured thereby. If it was made fraudulently or collusively, it may be attacked and set aside at the instance of any one who is the victim of such fraud or collusion. As the amount of the purchase money stated in the sheriff's return of the sale is sufficient to pay off the entire amount then due on the execution, the process is satisfied, so far as the defendant is concerned. If the purchaser has not paid the bid, suit may be brought against him for the purchase money, or the property can be resold at his risk; and if an amount equal to the final bid at the first sale is not realized, the purchaser at such sale is liable for such deficiency. Civil Code, section 5466. Judgment reversed.65 "Payment of the debt in full to the proper officer discharges the execution, although the creditor does not receive the money. Rook v. Wilmot, Cro. Eliz. 209 (1590); O'Neall v. Lusk, 1 Bailey (S. Car.) 220 (1829); Beard v. Millikan, 68 Ind. 231 (1879), and payment of part will be a satisfaction pro tanto, Sandburg v. Papineau, 81 Ill. 446 (1876). A sale of the debtor's property discharges the execution to the extent of the proceeds of the sale. Hoyt v. Peterson, 4 Johns. (N. Y.) 188 (1809); Hamlin v. Boughton, 4 Cow. (N. Y.) 65 (1825); Freeman v. Caldwell, 10 Watts (Pa.) 9 (1840); Planters' Bank v. Spencer, II Miss. (3 Sm. & M.) 305 (1844); McCluskey v. McNeeley, 8 Ill. (3 Gilm.) 578 (1846); Doe ex dem. Reynolds v. Ingersoll, 19 Miss. (11 Sm. & M.) 249, 49 Am. Dec. 57 (1848); Murrell v. Roberts, 33 N. Car. 424, 53 Am. Dec. 419 (1850); Gray v. Griswold, 7 How. Pr. (N. Y.) 44 (1852); Niolin v. Hamner, 22 Ala. 578 (1853); Halcombe v. Loudermilk, 48 N. Car. (3 Jones) 491 (1856); Ettlinger v. Tansey, 17 B. Mon. (Ky.) 364 (1856); Rutledge v. Townsend, 38 Ala. 706 (1863); Douglass' Appeal, 48 Pa. St. 223 (1864); McDevitt's Appeal, 70 Pa. St. 373 (1872); Kleinhenz v. Phelps, 6 Hun (N. Y.) 568 (1876); Elliott v. Higgins, 83 N. Car. 459 (1880); Hoobaugh's Appeal, 122 Pa. St. 88, 15 Atl. 669 (1888); Cake v. Bird, 1 Monag. (Pa.) 466, 470, 15 Atl. 774 (1888); Boos v. Morgan, 130 Ind. 305, 30 N. E. 141 (1891); Tonopah Banking Co. v. McKane Mining Co., 31 Nev. 295, 103 Pac. 230 (1909); Herr v. Lancaster Trust Co., 47 Pa. Super. Ct. 63 (1911). Taking the defendant on a capias ad satisfaciendum, at common law. discharges the debt, at least to the extent that other writs can not issue while he is in custody, and, if he is released by the act of the creditor no further execution can issue. Burnaby's Case, 1 Str. 653_(1725); Vigers v. Aldrich, 4 Burr. 2482 (1769); Tanner v. Hague, 7 Term Rep. 416 (1797); Jacques v. Withey, I D. & E. 557, I H. Bl. 65 (1787); Clark v. Clement, 6 D. & E. 525 (1796); Blackburn v. Stupart, 2 East 243 (1802); Lambert v. Parnell, 15 L. J. Q. B. 55 (1845); Sharpe v. Speckenagle, 3 Serg. & R. (Pa.) 463 (1817); Miller v. Miller, 5 N. J. L. 508 (1819); Loomis v. Stoors, 4 Conn. 440 (1822); Cooper v. Bigalow, I Cow. (N. Y.) 56 (1823); Sunderland v. Loder, 5 Wend. (N. Y.) 58 (1830); Tappan v. Evans, 11 N. H. 311 (1840); McCrillis v. Sisson, 1 R. I. 143 (1840); Dodge v. Doane, 57 Mass. (3 Cush.) 460 (1849); Kennedy v. Duncklee, 67 Mass. (1 Gray) 65 (1854); State v. Dodge, 24 N. J. |