5 Ark. 517 | Ark. | 1844
By the Court,
This writ of summons is clearly illegal and void, because there are not fifteen days between the date and return day thereof, and so is the service, because it appears to have been made after the day on which the writ was returnable. The defendant therefore was under no legal obligation to appear to, or answer the action. The question therefore arises, did he voluntarily enter his appearance to the action, in such manner as to authorize the court to pronounce judgment against him, either by nil dicit or default? We think he did not. To constitute such appearance as would authorize the court to proceed to judgment against him without service of process, some act of his indicating clearly a design to dispense with the service of process and voluntarily appear to the action must be shown by the record — as where the party comes and defends or confesses the action, or, without defending or confessing it, says he has nothing to allege in the premises, or where by any other affirmative act, he legally binds himself to appear. In such case the law warrants the court in proceeding to judgment against him without a service of process to appear and answer the action, otherwise no judgment can be legally pronounced against him. Here it appears to us perfectly manifest that the defendant below never intended to dispense with the service of process and voluntarily appear to the action, nor does he appear to have done any act which the law recognizes as an appearance to the action, consequently the judgment is erroneous and must be reversed, annulled and set aside with costs, and the case be remanded to the court from whence it came, with instructions to that court to proceed therein according to law, and as though the defendant below had been duly served with process, he having voluntarily made himself a party to the suit by prosecuting this writ of error.