Boyle v. Zacharie & Turner

■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 preceding cause.

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.

*655 The fieri facias was levied on the .ship on the 31st of March 1828; the bill in equity was filed, and an injunction awarded, on the 8th of the succeeding April. On the.8th of May following, the writ of fieri facias was returned to the circuit court with the marshal’s return thereon, “ levied as per schedule on the 31st of March 1828. Injunction issued on the 8th of April 1828.” On the 29th of August 1829, a writ of vehditioni 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 ex-ponas, 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 la sell the ship seised 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 origihal 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. 288, b. is entirely correct, in stating that “ a writ of error lieth when a man is grieved by an error in *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 aqt in a summary manner; for in such cases the motion is not granted ex debito justitise, 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. Rep. 484, Mr Chancellor Kent, in delivering the opinion of the court of errors, alluding to this practice, said, “it is notan 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 rulp 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, *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, be 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. Rep. 531, note. Wicket v. Creamer, 1 Salk. 264. Johnson v. Harvey, 4 Mass. Rep. 483 . Bleasdale v. Darby, 9 Price, 600. Clason v. Shotwell, 1 Tidd’s Prac. 470, 471; Kent’s (Chancellor) Opinion, 12 Johns. Rep. 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 *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, áre 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 jn 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. R. 212; United States v. Howland, 4 Wheat. R. 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 spealting, 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 isrendered, 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 cxe *659 eutions, 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 regulátions and restrictions which the state laws have imposed upon the state courts to govern them in .the actual use, suspension of 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, 564 ) furnishes a commentaryon this point; and it is freely expounded and illustrated in the subsequent cases of Wayman v. Southard, 10 Wheat. R. 1, and United States Bank v. Halstead, 10 Wheat. 51 . No rule of the circuit court of Maryland has been produced which adopts these sstate 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 bettef 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’s R. 271, 280; to which alone therefore it seems necessary to refer. See Charter v. Pector, Cro. Eliz. 597, Moore’s R. 542; Clark v. Withers, 6 Mod. 290, 293, 298; S. C. 1 Salk. 321; Blanchard v. Myers, 9 John. R. 66; 2 Tidd’s Pr. 1072; Com. Dig. Execution, C. 5, C. 8; Bac. Abridg. Supersedeas, G. See also M’Cullough v. Guetner, 1 Binn. R. 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 revisablo by this court. Whatever might have been properly done by the circuit court, upon *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 re-examinable here. And there is no pretence 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-per cent, 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 per centum per annum.