Opinion
May 1809.
The writ of audita querela will not be granted to relieve from excess of interest in entering up a judgment, if the judgment creditor will release the excess.
A supersedeas is usually auxiliary to a certiorari, but may be originally remedial, and is certainly more advantageous and summary than an audita querela.
Errors in judgments, arising from misprisions of the clerk, may be corrected by motion in a summary manner, and at a subsequent term. [Acc. Crutchfield v. Stewart, 1 Hum. 380; Farris v. Kilpatrick, 1 Hum. 379.]
HAYWOOD, for the plaintiff, in support of the motion for an audita querela. —
Though the Court may have power to give relief in a summary way it does not exclude relief by this writ. This shows that the Court may put the party to his audita querela, where the Superior Court cannot reverse a judgment for error in law. A writ of error lies coram vobis as to matter of fact though not of law. It is error in point of law in this case, for it appears on the record, and error will not lie. An audita querela is the proper remedy. The judgment is void in toto, on account of the usury, as much so as a bond where usury exists. The usury in the case originated in the judgment, and did not take place before, so that there was no opportunity of pleading. Haywood also relied on 1 Bac. tit. Audita querela, 307, 309; 1 Com. Dig. tit. Audita querela, E. 647.
1 Bos. Pull. 428; 2 Ld. Ray. 1699.
DICKINSON, for the defendants. —
In modern practice, the audita querela is superseded by a remedy on motion. 3 Bl. Com. 405. An audita querela will not lie where error does. 2 Bac. 189. If error here, it is of record; it is in the judgment, and can be corrected on motion. Error coram vobis, or before the same court, will lie for error in fact, as death, c., but not on account of error in law, which may be corrected in a summary manner. Error coram nobis is from the judgment of another court, and does not apply here. He offered to correct the judgment by releasing the excess of the interest, stating that it was a mistake of the clerk.
This was a petition for an audita querela and supersedeas. The supersedeas had been granted by a judge in vacation. Judgment had been taken at a former term for the amount of the debt, and twelve and a half per cent interest, when it should have been but for six per cent interest. The petition charged that the judgment was usurious, and on this ground, the plaintiff now moved in court for an audita querela, in order that the point of usury might be examined. A writ of error had been obtained in the County Court, in October, 1807. In December, 1807, the act passed allowing twelve and a half per cent when judgments should be affirmed on error. In May, 1808, the plaintiff came into court and confessed judgment, as stated above. It was conceived that the act did not operate retrospectively, and consequently the judgment should have been but for six per cent interest.
This judgment certainly ought not to have been for more than six per cent interest, — the excess is erroneous. He would not deny but an audita querela might be proper in some cases, but there was no necessity for it in this. Between the two methods of affording redress in a summary manner, by motion and bill in equity, the audita querela has nearly fallen into disuse. Error coram vobis will not lie except for error in fact, there is no doubt. The error in this case is matter of law appearing on the face of the judgment; and when the Court see that error in law has crept in they will remedy it in an equitable and summary manner. It cannot be conceived why it may not be done in this case. The excess of interest may be released, so as to render the judgment conformable to law. Much has been said by the plaintiff's counsel respecting there being no remedy but an audita querela, as it respects a judgment of this court. It is not designed to determine this question at present, it not being necessary; but it cannot be seen why a supersedeas, as primary process and a remedial writ, may not lie, and this can be granted in vacation. In practice, it generally occurs that a supersedeas is auxiliary to a certiorari, but this is believed not to be the case always; there may be a supersedeas originally remedial as well as by implication and auxiliary. When used as auxiliary process, it has been customary for a single judge in vacation to grant it, — as in the case of a certiorari, nor can any reason be perceived why a single judge in vacation cannot grant it as remedial process. It ought however to be granted as remedial process only in clear cases, where the irregularity appears evident. It should be always granted on such terms as may be consistent with the principles of law in analogous cases, as giving security when required. Under such restrictions this writ may be highly beneficial to the citizen in avoiding the expense and delay of a suit in equity. This mode of proceeding is certainly more advantageous than by audita querela where process by distringas, c., must issue, regular pleadings must take place, and the same delay as in other suits, if not greater. Upon return of the supersedeas, if the matter of complaint be of record it can be inquired into in a summary manner, and justice done as on motion. In this case it is most probable it was a mistake of the clerk in entering up judgment for twelve and a half per cent interest instead of six per cent. This excess of interest has been released, and thus the cause of complaint has been removed. The case is not similar to a contract where usurious interest has been received.
See 20 Vin. Ab. tit. Supersedeas. Bac. Ab. tit. Supersedeas, C.; 1 Wash. 118; 2 Caines' C. E. 318.
concurred in the opinion that the writ of audita querela should be refused as the excess of interest was released.