Audita querela

Last updated

Audita querela (Law Latin for "[the] complaint [having been] heard") is a writ, stemming from English common law, that serves to permit a defendant who has had a judgment rendered against him or her to seek relief of the consequences of such a judgment where there is some new evidence or legal defense that was not previously available. The writ is thus generally used to prevent a judgment from being executed where enforcement of that judgment would be "contrary to justice". At common law, the writ may be useful where a creditor engages in fraud before the judgment is rendered, or because the debt had been discharged, paid or otherwise satisfied after the judgment is rendered.

Contents

The writ has existed at various times in England, Canada and the United States, and possibly Scotland. In England, it fell out of use in favor of less expensive remedies, and was ultimately abolished in 1875. In Canada, the writ has either fallen into disuse or been abolished entirely. In United States federal civil law, it was abolished by the Federal Rules of Civil Procedure in 1948, but still exists in the civil procedure of some states. The writ has also been adopted to some specialized United States federal criminal practice, especially involving the effects of sentences on immigration law. As to Scotland, few records exist as to the writ, though equivalent actions exist.

History

English beginnings

[Audita querela] 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 has a good defence, but by the ordinary forms of law had no opportunity to make it. but the indulgence now shewn by the courts in granting a summary relief upon motion, in cases of such evident oppression, and driven it quite out of practice.

William Blackstone, Commentaries on the Laws of England , volume 3, page 405

The writ of audita querela defendentis (Law Latin for "[the] complaint [of the] defendant [having been] heard"), later shortened to audita querela, [1] (Law Latin for "[the] complaint [having been] heard") [2] was first authorized by Parliament in 1336, during the reign of Edward III, [2] [3] and may have existed as early as 1282. [4] The writ would issue from the Court of Chancery, directed towards either the King's Bench or the Court of Common Pleas, and would direct the court to hear the parties and "do speedy justice to the debtor". [3] In the Middle Ages, the writ became a general remedy for victims of forgery and similar issues, which development led to the importation of the writ to the United States. [3] The writ was used to vacate a judgment rendered against a debtor where that debtor had paid the debt or the debt had otherwise been discharged. This was to ensure that a creditor could not collect the same debt twice. [5]

A hearing on a writ of audita querela was a full trial on the merits of the case, rather than a simple procedural hearing, and could result in both equitable remedies as well as summary judgment. The expense of pursuing a full trial was one of the factors that led to the writ's decline by the late 1660s, particularly as many plaintiffs only sought summary judgment, and English courts became more willing to entertain much cheaper to pursue motions for summary judgment. [6] Two English statutes in particular, in allowing relatively simple affidavits in ex parte proceedings to secure summary judgment, led to an increase in their use in place of audita querela: the Charities Procedure Act 1812 and the Summary Procedure on Bills of Exchange Act 1855. The former granted several English courts greater liberty to review affidavits and award summary relief in cases involving charitable trusts. The latter permitted bearers of promissory notes and endorsed bills of exchange to pursue ex parte proceedings for summary judgment through the filing of an affidavit. [7]

The writ of audita querela was abolished entirely by the Rules of the Supreme Court [5] in 1875 by Order 42, r. 22. [8]

. . . jeo vous die bien que Audita Querela est done plus dequite qe de comune lay, qar ore tarde il ny avoit pas tiel suyte, et par cas la suyte est done forsqe al primer.

. . . I tell you plainly that Audita Querela is given rather by Equity than by Common Law, for quite recently there was no such suit, and possibly the suit is given only to the first.

Y.B. 17 Edw. 3, fol. 27b, Easter term, pl. 24 (1343) (Eng.) (Stonor, J.) (Luke Owen Pike trans. 1901)

One question that has persisted is whether audita querela functioned in equity or at common law. William Searle Holdsworth argued the former position, whereas Theodore Plucknett argued the latter. Holdsworth's History of English Law cites an early legal opinion by John Stonor as well as Blackstone's Commentaries for the proposition that the writ was of an equitable nature. Plucknett's A Concise History of the Common Law argues that the writ provided no greater relief than was traditionally available at common law for abuse of process. He also offers a different interpretation of Stonor's statement, arguing that it means the writ permitted a defendant to assert common law defenses where a statute's intent was to make such defenses inaccessible. As such, Plucknett argues that the circumstances under which the writ was available were few and circumscribed. [5]

Canada

By 1878, the writ of audita querela had fallen into disuse in Canada, [9] and was considered obsolete by 1940. [10]

Scotland

The writ may have been adopted in Scotland during the reign of Robert the Bruce under the name Breve de pauperibus quod dicitur Audita querela as a brieve,[ clarification needed ] [4] a Scots law writ issuing from chancery. [2] The brieve may have involved a payment from the Exchequer, but did not appear to take root in Scots law. [4] The text of the ancient brieve has been lost. [11]

Prior to the abolition of Audita querela in England, the equivalent action in Scots law was suspension to stay diligence. Subsequently, the English equivalent to the Scots action became stay of execution. [12]

United States

In United States jurisprudence, the writ of audita querela functioned as a common-law action, sounding in tort. As in England, the writ had to be brought in the trial court that rendered the original judgment. An essential element of bringing an action at audita querela was injury or danger thereof, and it had to be brought between the two parties of the earlier proceeding that rendered the judgment. It also required that, if there were multiple defendants subject to the original judgment, they all take part in the proceeding unless the defendant bringing the suit was the sole defendant subject to execution and only brought the suit to vacate the judgment. [13]

The writ saw use in a great variety of circumstances and situations, but there were two primary uses. First, like in England, the writ could be used when a defense was not brought during the earlier trial because it was unavailable, or if the debt subject to the judgment had since been discharged. Second, the writ started to be extended to situations arising prior to judgment, such as where a creditor sought and obtained a judgment in an improper way that deprived the debtor of the chance to defend against the case in court. [14]

Modern status

As one commentator succinctly summarized, the writ of audita querela is "shrouded in ancient lore and mystery."

Robbins 1992, p. 645, quoting Fed. R. Civ. P. 60(b), 1946 advisory committee notes.

Audita querela was abolished in United States federal civil procedure in 1948 [15] by Rule 60(b), which provides the procedure for relief from a final judgment [16] through a motion. [17] The specific language of Rule 60(b) that abolished the writ was moved to 60(e) in 2007. [16] Some states have abolished the writ, and in those that have not, where a motion may be used to accomplish the same outcome, the use of the writ has been almost completely replaced by an equivalent motion. [18] The writ has been explicitly abolished in the states of Florida, [19] Illinois, [20] Indiana, [21] Kansas, [22] Kentucky, [23] Massachusetts, [24] Michigan, [25] Minnesota, [26] Mississippi, [27] Missouri, [28] Nevada, [29] Oregon, [30] Rhode Island, [31] South Carolina [32] and Washington. [33] In Ohio, it is said that audita querela is not part of the law. [34]

In federal criminal procedure, the writ may sometimes be used to contest a conviction on legal grounds where there is no other postconviction remedy available. In this sense, audita querela, along with other common law remedies, serves to fill gaps in the system of postconviction remedies. [35] A specific situation in which this has been used is to avoid the immigration consequences of a conviction. [36] Another case in which it has been used has been to vacate a long-past conviction with a law which has since been judged unconstitutional. [37] [ better source needed ] With respect to state criminal proceedings, while it has been said that the writ is inapplicable, there is authority to the contrary. [38]

Practice

United States

Audita querela serves to permit a defendant who has had a judgment rendered against him or her to seek relief of the consequences of such a judgment where there is some new evidence or legal defense that was not previously available. [39] The writ is thus generally used to prevent a judgment from being executed where enforcement of that judgment would be "contrary to justice". [40] At common law, the writ may be useful where a creditor engages in fraud before the judgment is rendered, or because the debt had been discharged, paid or otherwise satisfied after the judgment is rendered. [39]

Specific uses of the writ may include judgments that the debtor has paid, for debts that have been discharged in bankruptcy and that exceed the jurisdiction of the court. Default judgments rendered where there was no service of process may be set aside through the writ, as may writs of execution issued in an amount greater than the judgment and judgments for debts where the creditor has released his or her rights to the debtor. A judgment against a minor lacking a guardian ad litem or against someone mentally incompetent whose guardian has not been notified may also be voided by the writ. [41]

The writ is distinguished from other remedies primarily in terms of the timing of the grounds for objecting to the judgment, rather than the actual nature of the grounds, [40] such as whether they are purely equitable. [42] It may be further distinguished from the writ of coram nobis in that the latter is used to vacate a judgment, rather than the consequences of a judgment. Thus, audita querela may issue against judgments that were valid when rendered, while coram nobis would be used against judgments that were never valid. [43]

Related Research Articles

Equity is a particular body of law that was developed in the English Court of Chancery. It exists in domestic law, both in civil law and in common law systems, and in international law. The tradition of equity begins in antiquity with the writings of Aristotle (epieikeia) and with Roman law (aequitas). Later, in civil law systems, equity was integrated in the legal rules, while in common law systems it became an independent body of law.

Mandamus is a judicial remedy in the form of an order from a court to any government, subordinate court, corporation, or public authority, to do some specific act which that body is obliged under law to do, and which is in the nature of public duty, and in certain cases one of a statutory duty. It cannot be issued to compel an authority to do something against statutory provision. For example, it cannot be used to force a lower court to take a specific action on applications that have been made, but if the court refuses to rule one way or the other then a mandamus can be used to order the court to rule on the applications.

Writ Formal written order issued by a court

In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative writs, subpoenas, and Certiorari are common types of writ, but many forms exist and have existed.

A writ of prohibition is a writ directing a subordinate to stop doing something the law prohibits. This writ is often issued by a superior court to the lower court directing it not to proceed with a case which does not fall under its jurisdiction.

In law, a judgment, also spelled judgement, is a decision of a court regarding the rights and liabilities of parties in a legal action or proceeding. Judgments also generally provide the court's explanation of why it has chosen to make a particular court order.

A legal fiction is a fact assumed or created by courts, which is then used in order to help reach a decision or to apply a legal rule. The concept is used almost exclusively in common law jurisdictions, particularly in England and Wales.

A demurrer is a pleading in a lawsuit that objects to or challenges a pleading filed by an opposing party. The word demur means "to object"; a demurrer is the document that makes the objection. Lawyers informally define a demurrer as a defendant saying "So what?" to the pleading.

Interpleader is a civil procedure device that allows a plaintiff or a defendant to initiate a lawsuit in order to compel two or more other parties to litigate a dispute. An interpleader action originates when the plaintiff holds property on behalf of another, but does not know to whom the property should be transferred. It is often used to resolve disputes arising under insurance contracts.

The forms of action were the different procedures by which a legal claim could be made during much of the history of the English common law. Depending on the court, a plaintiff would purchase a writ in Chancery which would set in motion a series of events eventually leading to a trial in one of the medieval common law courts. Each writ entailed a different set of procedures and remedies which together amounted to the "form of action".

The writ of coram nobis is a legal order allowing a court to correct its original judgment upon discovery of a fundamental error that did not appear in the records of the original judgment's proceedings and would have prevented the judgment from being pronounced. The term "coram nobis" is Latin for "before us" and the meaning of its full form, quae coram nobis resident, is "which [things] remain in our presence". The writ of coram nobis originated in the courts of common law in the English legal system during the sixteenth century.

Replevin or claim and delivery is a legal remedy, which enables a person to recover personal property taken wrongfully or unlawfully, and to obtain compensation for resulting losses.

In tort law, detinue is an action to recover for the wrongful taking of personal property. It is initiated by an individual who claims to have a greater right to their immediate possession than the current possessor. For an action in detinue to succeed, a claimant must first prove that he had better right to possession of the chattel than the defendant and second that the defendant refused to return the chattel once demanded by the claimant.

In English law, a writ of scire facias was a writ founded upon some judicial record directing the sheriff to make the record known to a specified party, and requiring the defendant to show cause why the party bringing the writ should not be able to cite that record in his own interest, or why, in the case of letters patent and grants, the patent or grant should not be annulled and vacated. In the United States, the writ has been abolished under federal law but may still be available in some state legal systems.

Assumpsit, or more fully, action in assumpsit, was a form of action at common law used to enforce what are now called obligations arising in tort and contract; and in some common law jurisdictions, unjust enrichment. The origins of the action can be traced to the 14th century, when litigants seeking justice in the royal courts turned from the writs of covenant and debt to the trespass on the case.

A subpoena ad testificandum is a court summons to appear and give oral testimony for use at a hearing or trial. The use of a writ for purposes of compelling testimony originated in the ecclesiastical courts of Church during the High Middle Ages, especially in England. The use of the subpoena writ was gradually adopted over time by civil and criminal courts in England and the European continent.

The writ of quominus, or writ of quo minus, was a writ and legal fiction which allowed the Court of Exchequer to obtain a jurisdiction over cases normally brought in the Court of Common Pleas. The Exchequer was tasked with collecting the King's revenue, and the legal fiction worked by having the plaintiff in a debt case claim that he was a debtor to the king, and that the defendant's debt prevented him paying the King. As such, the defendant would be arrested, and the case heard by the Exchequer. The writ's predecessors were in use from at least 1230, and it was in common use during the 16th century. The use continued into the 19th century, until all original writs were abolished in 1883.

Attachment is a legal process by which a court of law, at the request of a creditor, designates specific property owned by the debtor to be transferred to the creditor, or sold for the benefit of the creditor. A wide variety of legal mechanisms are employed by debtors to prevent the attachment of their assets.

Tribunals, Courts and Enforcement Act 2007 United Kingdom legislation

The Tribunals, Courts and Enforcement Act 2007 is an Act of the Parliament of the United Kingdom. It provides for several diverse matters relating to the law, some of them being significant changes to the structure of the courts and fundamental legal procedures. Part 1 provides a scheme for radical overhaul of the tribunal system in the UK, creating a new unified structure with two new tribunals to embrace the former fragmented scheme, along with a Senior President of Tribunals. Part 2 defines new criteria for appointment as a judge, generally reducing the length of experience required with the aim of increasing diversity in the judiciary. Part 3 creates a new system of taking control of goods in order to enforce judgments and abolishes ancient common law writs and remedies such as fieri facias, replevin and distress for rent. It introduces a modern system of 'certified enforcement agents' and 'exempted enforcement agents' which includes civil servants such as court officers and County Court bailiffs, civilian enforcement officers and police officers. Part 4 makes some changes to attachment of earnings and charging orders to make recovery of debts more straightforward. Part 5 makes some changes to insolvency practice in order to provide low-cost protection for people who have previously been excluded owing to their small debts and lack of assets. Part 6 provides protection from seizure for foreign antiquities and artefacts on display in the UK and whose provenance is alleged to be broken by misappropriation. Such artefacts can only be seized on a court order that was compelled by a Community obligation or a treaty obligation.

Civil procedure in South Africa is the formal rules and standards that courts follow in that country when adjudicating civil suits. The legal realm is divided broadly into substantive and procedural law. Substantive law is that law which defines the contents of rights and obligations between legal subjects; procedural law regulates how those rights and obligations are enforced. These rules govern how a lawsuit or case may be commenced, and what kind of service of process is required, along with the types of pleadings or statements of case, motions or applications, and orders allowed in civil cases, the timing and manner of depositions and discovery or disclosure, the conduct of trials, the process for judgment, various available remedies, and how the courts and clerks are to function.

The writ of estrepement, or de estrepamento, was a writ in common law countries that would be used to prevent estrepement, a type of 'voluntary waste'. The waste that the writ would issue to prevent would be waste that occurred in response to a lawsuit seeking possession of the land, or a judgment against the waster where possession had not yet been delivered.

References

  1. ↑ Robbins, Ira P. (December 1992). "The Revitalization of the Common-Law Civil Writ of Audita Querela As A Postconviction Remedy in Criminal Cases: The Immigration Context and Beyond" . Georgetown Immigration Law Journal. 6 (4): 643–644. ISSN   0891-4370. OCLC   49847239. 6 Geo. Immigr. L.J. 643 – via HeinOnline.
  2. 1 2 3 Garner, Bryan A., ed. (2009). Black's Law Dictionary (9th ed.). ISBN   978-0-314-19949-2.
  3. 1 2 3 ( Robbins 1992 , p. 646)citingPlucknett, Theodore F.T. (1956). A Concise History of the Common Law (5th ed.). p. 394.
  4. 1 2 3 Cooper, Thomas, ed. (1946). The Register of Brieves 1286–1386. Edinburgh: The Stair Society. pp. 17, 43.
  5. 1 2 3 ( Robbins 1992 , p. 647)
  6. ↑ Rice, Willy E. (2005). "Questionable Summary Judgments, Appearances of Judicial Bias, and Insurance Defense in Texas Declaratory-Judgment Trials: A Proposal and Arguments for Revising Texas Rules of Civil Procedure 166a(a), 166a(b), and 166a(i)" . Saint Mary's Law Journal. 36 (3): 537. ISSN   2168-880X. OCLC   60627647. 36 St. Mary's L.J. 535 – via HeinOnline.
  7. ↑ ( Rice 2005 , pp. 538–539)
  8. ↑ Gordon, D. M. (February 1970). "Action on A Judgment Under Appeal" . Chitty's Law Journal. 18 (2): 57. 18 Chitty's L.J. 54 – via HeinOnline.
  9. ↑ Wallace v. Bossom (1878), 2 S.C.R. 488 (Can.).
  10. ↑ Sanagan, Gerald D.; Drynan, George K., eds. (1940). The Encyclopedia of Words and Phrases, Legal Maxims. Vol. 1. Toronto: Richard De Boo Ltd. p. 387.
  11. ↑ Duncan, A. A. M. (1958). "The Central Courts before 1532". An Introduction to Scottish Legal History. Edinburgh: The Stair Society. p. 330.
  12. ↑ Brodie-Innes, John William (1903). Comparative Principles of the Laws of England and Scotland . Edinburgh: William Green & Sons. p. 751 – via HeinOnline.
  13. ↑ ( Robbins 1992 , pp. 648–649)
  14. ↑ ( Robbins 1992 , pp. 649–651)
  15. ↑ Wright, Charles Alan; Miller, Arthur R.; Kane, Mary Kay; Marcus, Richard L. (December 2012). "Chapter 8: Judgment". Federal Practice & Procedure: Federal Rules of Civil Procedure. Vol. 11 (3rd ed.). § 2867.
  16. 1 2 7A C.J.S. Audita Querela § 7.
  17. ↑ Federal Rules of Civil Procedure Rule 60.
  18. ↑ 7 Am. Jur. 2d Audita Querela § 2.
  19. ↑ Fla. R. Civ. Proc., §1.540(b)
  20. ↑ Koets, Robert F. "Audita Querela". Illinois Law and Practice. Vol. 4. West Publishing. § 1.
  21. ↑ Griffith, Jr., Lonnie E. "Judgment". Indiana Law Encyclopedia. Vol. 17. West Publishing. § 186.
  22. ↑ Gard, Spencer A.; Casad, Robert C.; Mulligan, Lumen N. "Relief from a judgment or order". Kansas Code Of Civil Procedure Annotated. Kansas Law and Practice. Vol. 4. West Publishing. § 60-260(e).
  23. ↑ Philipps, Jr., Kurt A.; Kramer, David V.; Burleigh, David W. (2012). Rules of Civil Procedure. Kentucky Practice Series. Vol. 7 (6th ed.). West Publishing. R. 60.05.
  24. ↑ Nolan, Joseph R.; Sartorio, Laurie J. "Jurisdiction in General". Equitable Remedies. Massachusetts Practice Series. Vol. 31 (3rd ed.). West Publishing. § 3.13.
  25. ↑ "Summons and Process". Michigan Pleading and Practice. Vol. 1A (2nd ed.). West Publishing. § 16:4.
  26. ↑ Herr, David F.; Haydock, Roger S. "Trials". Civil Rules Annotated. Minnesota Practice Series (5th ed.). West Publishing. R. 60.02.
  27. ↑ Young, Stanford. "The Judgment". Trial Handbook for Mississippi Lawyers (3rd ed.). West Publishing. § 37:8.
  28. ↑ Katz, Steven A. (2012). "Judgments, Orders and Proceedings Thereon". Civil Rules Practice. Missouri Practice Series. Vol. 16. West Publishing. 74.06(d).
  29. ↑ Bailey, Soonhee A.; Jaeger, Jeffrey. "Select Civil Procedural Rules". Courtroom Handbook on Nevada Evidence. West Publishing. R. 60(b).
  30. ↑ Tornquist, Leroy J. "Civil Procedure". Oregon Law and Practice. Vol. 6. West Publishing. R. 71(D).
  31. ↑ Kent, Robert B.; Simpson III, B. Mitchell; Flanders, Jr., Robert G.; Wollin, David A. "Judgment". Rhode Island Civil Procedure With Commentaries. West Publishing. § 60:1.
  32. ↑ Schmidt III, John E.; Zoole, Laura E. "Judgment". Rules of Civil Procedure. South Carolina Jurisprudence. Vol. 25. West Publishing. § 60.0.
  33. ↑ Breskin, David E. Civil Procedure Forms And Commentary. Washington Practice Series. Vol. 10A (3rd ed.). West Publishing. R. 60(d).
  34. ↑ Dvorske, John J.; et al. "Abrogation of Common Law Crimes and Procedure". Criminal Law: Substantive Principles and Offenses. Ohio Jurisprudence. Vol. 29A (3rd ed.). West Publishing. § 9.
  35. ↑ 7 Am. Jur. 2d Audita Querela § 4.
  36. ↑ Kurtis A. Kemper, Annotation, Availability and Appropriateness of Audita Querela Relief in Connection with Immigration and Naturalization Proceedings, 13 A.L.R. Fed. 2d 493 (2006).
  37. ↑ Stern, Mark Joseph (19 October 2016). "An Attorney and a DA Are Seeking Justice for Tennesseans Convicted of "Homosexual Acts"". Slate. Retrieved 22 October 2016.
  38. ↑ 7A C.J.S. Audita Querela § 6 (citing Quintana v. Nickolopoulous, 768 F. Supp. 118 (D.N.J. 1991)).
  39. 1 2 7A C.J.S. Audita Querela § 1.
  40. 1 2 7 Am. Jur. 2d Audita Querela § 1.
  41. ↑ 7 Am. Jur. 2d Audita Querela § 3.
  42. ↑ 7A C.J.S. Audita Querela § 3.
  43. ↑ 7A C.J.S. Audita Querela § 4.

Further reading

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.