Evans v. Gee (39 U.S. 1)/Opinion of the Court

The principal matters appearing in the record are not now open to investigation, being the same adjudged of by this Court in 1837; the report of which is found in 11 Peters, 81.

The original judgment against Thomas Evans was rendered at May term, 1836. No execution seems to have issued until 16th March, 1838, when one was taken out bearing teste the second Monday of October, 1837, and returnable the second Monday of April, 1838.

Nothing appears in the record showing that Thomas Evans was dead, save an affidavit of one of his sons, and the circumstance that the administrator's name is used in prosecuting the writ of error: but no suggestion of the death of Thomas Evans, nor any revival of the judgment against his administrator, is found.

The execution was levied on sundry slaves, and a bond given for their delivery, which recites that the execution, in virtue of which the levy was made, bore teste at May term, 1836; and to this date the writ may have had relation, by the laws of Alabama, and the facts of the case.

One of the sons of Thomas Evans made an affidavit, stating his father to have died on the 12th day of September, 1837, on which the motion to quash the execution and delivery-bond was founded. The motion was refused; but for what particular reason, does not appear; nor does this Court feel itself authorized to inquire. It is the settled doctrine here, that a writ of error does not lie upon the refusal of a motion to quash an execution: such record of refusal not being a final judgment in the sense of the twenty-second section of the Judiciary Act. We will content ourselves by referring to the opinion of the Court in the cause of Boyle vs. Zacharie and Turner, 6 Peters, 654. It is therefore ordered, that the writ of error be dismissed, and the supersedeas discharged.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Alabama, and was argued by counsel. On consideration whereof, it is ordered and adjudged by this Court, that this writ of error be, and the same is hereby, dismissed with costs; and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to proceed therein according to law and justice.