47 Ark. 511 | Ark. | 1886
The appellee sued the appellant upon an open account, duly verified, before a justice of the peace. The appellant appeared on the return day of the summons and filed an answer, but the justice conceiving that the answer was of a nature that required verification, caused it to be stricken from the files upon motion of the plaintiff’s attorney, and refused to hear evidence from the defendant to sustain the allegations of the answer that had been stricken out; and as the defendant did not offer to amend or answer further, judgment was rendered against him. After the time for appeal from this judgment had expired, the defendant petitioned the circuit court to quash the judgment upon certiorari. The transcript from the justice’s docket, which accompanied the petition, set forth the facts as stated above. The petition offered no excuse for not prosecuting the appeal and it was dismissed upon demurrer. The petition seeks to reverse the judgment of dismissal.
The justice of the peace had jurisdiction of the cause of action and of the person of the defendant, and any irregular or erroneous act on his part is no more than erroneous exercise of jurisdiction, and does not make the judgment rendered liable to be successfully assailed collaterally or quashed upon certiorari. Nor can the writ of certiorari be used for the correction of errors as upon appeal. Pearce, ex parte, 44 Ark., 509.
The record does not show affirmatively that no proof was taken upon the rendition of judgment, and in the absence of such showing the presumption is that the justice performed his duty in that respect. St. L., I. M. & S. Ry. v. Barnes, 35 Ark., 95. Moreover, the statute authorizes the rendition of judgment upon a verified account without other proof of its correctness (Hershy v. Yantes, 46 Ark., 498); but if we should regard the indebtedness upon the account as denied and the burden of proof upon the plaintiff, it was nevertheless only error in procedure, according to the decision in Railroad v. Barnes, supra, for the justice to render judgment in sucha case without proof, and does not subject the judgment to quashal upon certiorari.
But the writ of certiorari should not be issued in any case where there has been a right of appeal unless the opportunity of appealing has been lost without the fault of the party entitled to it. Payne v. McCabe, 37 Ark., 318.
It is argued, however, by the appellant, that he was deprived of his right to appear and be heard, and that the judgment is therefore a sentence without judicial determination of his rights, and entitled to no respect. But his conclusion is based upon a false assumption of fact, and the case of Windsor v. McVeigh, 93 U. S., 274, which is relied upon to sustain the position, is therefore inapplicable. In that case the trial court refused to permit the defendant to appear and defend upon any terms because he was engaged in rebellion against the United States government, and the supreme court held the judgment against him void in a collateral attack upon it. But in the case at bar the record does not bear out the appellant’s contention that there was an absolute refusal to permit him to appear and defend. It is recited in the justice’s judgment that “the court being of the opinion that the defendant could not tender an issue until his answer was verified, refused to hear evidence in support thereof; and being well and sufficiently advised in the premises,” proceeded to render judgment.
The defendant made no effort to comply with the condition that the court placed upon his right to make defense — that is to verify his answer, but preferred to allow judgment to be rendered against him rather than comply with the ruling of the •court. The justice was in error in striking out the defendant’s answer and in refusing to hear his defense without a written or verified answer; but a justice of the peace has the right to determine every question that arises in a cause pending in his court that a superior court has under like circumstances, and when he errs in his conclusions upon the law, the judgments of his court are no more open to attack than those of the circuit •court.-
The appellant’s only remedy to correct the errors complained •of was by appeal to the circuit court, where the right of defense without a verified or written answer would have been accorded him.
Affirm.
