Audita Querela in United States

Audita Querela Definition

(Lat.) A form of action which lies for a defendant to recall or prevent an execution, on account of some matter occurring after judgment amounting to a discharge, and which could not have been, and cannot be, taken advantage of otherwise. 12 Mass. 270. It is a regular suit, in which the parties appear and plead (17 Johns. [N. Y.] 484; 12 Vt. 56, 435; 30 Vt. 420; 8 Miss. 103), and in which damages may be recovered if execution was issued improperly (Brooke, Abr. “Damages,” 38), but the writ must be allowed in open court, and is not of itself a supersedeas (2 Johns. [N. Y.] 227). It is a remedial process, equitable in its nature, based upon facts, and not upon the erroneous judgments or acts of the court. 2 Wm. Saund. 148, note; 10 Mass. 103; 14 Mass. 448; 17 Mass. 159; 1 Aik. (Vt.) 363; 24 Vt. 211; 2 Johns. Cas. (N. Y.) 227; 1 Overt. (Tenn.) 425. And see 7 Gray (Mass.) 206. In modern practice, the same relief is usually granted on motion, and the writ is dismissed. The original purpose of this writ is said to have been relieving a party from the wrongful acts of his adversary and permitting him to show any matter of discharge which may have occurred since the rendition of the judgment.

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Legal Issue for Attorneys

(Lat.) A form of action which lies for a defendant to recall or prevent an execution, on account of some matter occurring after judgment amounting to a discharge, and which could not have been, and cannot be, taken advantage of otherwise. 12 Mass. 270. It is a regular suit, in which the parties appear and plead (17 Johns. [N. Y.] 484; 12 Vt. 56, 435; 30 Vt. 420; 8 Miss. 103), and in which damages may be recovered if execution was issued improperly (Brooke, Abr. “Damages,” 38), but the writ must be allowed in open court, and is not of itself a supersedeas (2 Johns. [N. Y.] 227). It is a remedial process, equitable in its nature, based upon facts, and not upon the erroneous judgments or acts of the court. 2 Wm. Saund. 148, note; 10 Mass. 103; 14 Mass. 448; 17 Mass. 159; 1 Aik. (Vt.) 363; 24 Vt. 211; 2 Johns. Cas. (N. Y.) 227; 1 Overt. (Tenn.) 425. And see 7 Gray (Mass.) 206. In modern practice, the same relief is usually granted on motion, and the writ is dismissed. The original purpose of this writ is said to have been relieving a party from the wrongful acts of his adversary and permitting him to show any matter of discharge which may have occurred since the rendition of the judgment.

This definition of Audita Querela is based on The Cyclopedic Law Dictionary. This entry needs to be proofread.