The following, taken from appellant’s abstract, is a clear and full statement of tbe facts:
‘ ‘ Tbis is an aрplication for a writ of certiorari presented to tbe Louisiana Court of Common Pleas May 23,1904.
■ “Tbe H. W. Crooker Shoe Company is a nonresident corporation. On tbe tbirty-first day of March, 1903, the H. W. Crooker Shоe Company instituted suit against relator, John C. Fry, for $249.20, before respondent, Henry J. Armstrong, justice of tbe peace of Buffalo township, Pike county, Missouri, and summons issued on said tbirty-first day of March, 1903, and made returnable on tbе ninth day of April, 1903. Service was bad upon relator March 31, 1903. On April 9, 1903, the respondent rendered judgment against relator, by default, for tbe full amount sued for. On tbe next day, April 10,1903, tbe respondent, tbe justice of tbe peaсe, set said judgment aside and thereupon reinstituted suit for said IT. W. Crooker Shoe Company against John C. Fry, relаtor. Tbe latter suit finally found its way to tbe St. Louis Court of Appeals, and by tbe St. Louis Court of Appeals, both tbe justiсe and Louisiana Court of Common Pleas were reversed. On March 11, 1904, execution was issued by respondent, tbe said justice, based upon tbe judgment rendered by him April 9,1903. Therefore, tbe relator presented bis application for a writ of certiorari to tbe Louisiana Court of Common Pleas and tbe court cаused tbe writ to be issued, and tbe respondent, in obedience to said writ, made bis return, thereupon tbe cоurt quashed tbe writ.”
On tbis state of facts, two questions of law arise; first, can a justice of tbe peace rеnder a valid judgment on a nine days’ service of summons on tbe defendant or, in other words, is such a judgment void or vоidable only? Second, is certiorari tbe proper remedy to correct or annul tbe judgment? As far bаck as Perryman v. State ex rel. Relfe,
“A broad distinction is to be drawn between cases where no service on defendant аppears and those in which service is shown, but where it is in some respect deficient or irregular. In the lаtter cases, jurisdiction attaches, subject to be defeated by objections to the irregularity, interposed in season in some direct manner. In the former class, jurisdiction is not obtained, if the law requires serviсe.
“Where the facts touching the acquisition of jurisdiction are fully disclosed, the principles of law governing liability to collateral attack are applied no less favorably to judgments of justices оf the peace than to the adjudications of courts having more extensive powers.”
We cоnclude that the judgment of the justice is not void for the reason that at least ten days’ notice of the suit wаs not given the defendant, as required by section 3862, R. S. 1899, but for this reason it is irregular and, as was said in Perryman v. State ex rеl. Relfe, supra, might have been reversed, had the defendant appealed. May he accоmplish the same result by a writ of certiorari, is the second'question for solution. As a general rule certiorari can not be substituted for appeal or writ of error. It may be used where appeal or writ оf error does not provide adequate relief. [State ex rel. v. Shelton,
The judgment is affirmed.
Goode, J., on the ground that relatоr having previously pleaded the judgment of April 9th as a bar to a subsequent judgment, is estopped to now assert said judgment is void and on the further ground that in Crooker Shoe , Co. v. Fry, said judgment of April 9 was ruled not to be void.