Duhaime's Law Dictionary


Audita Querela Definition:

An application to a court after judgment seeking to avoid execution of that judgment because of some event intervening between judgment and execution which compromises the judgment creditor's entitlement to execution.

Related Terms: Judgment Debtor, Judgment Creditor, Fieri Facias

In Wallace v Bossom, Justice Ritchie of Canada's Supreme Court wrote, at page 492, citing Bacon's Abridgement:

"Formerly, relief against judgment could only be had through the instrumentality of the writ of audita querela, but now the writ has fallen into disuse....

"An audita querela is a writ to be delivered against an unjust judgment or execution by setting them aside for some injustice of the party that obtained them ...."

At Chapter 7A of the 1980 American Corpus Juris Secundum, the authors write:

"The writ of audita querela is a common law writ to afford relief to a judgment debtor against a judgment or execution because of some defense or discharge arising subsequent to the rendition of judgment or the issue of the execution.

"Generally, the use of the writ of audita querela has been superseded by a more summary mode of relief; but the common law remedy is not taken away by the mere establishment of a concurrent remedy."

Similarly, John Bouvier's 1897 Law Dictionary re audita querela:

"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."

REFERENCES:

  • Ginnow, A., editor-in-chief, Corpus Juris Secundum (St. Paul, Minn., West Publishing Co., 1098), Volume 7A.
  • Wallace v Bossom, [1879] 2 SCR 488

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