101 Ark. 124 | Ark. | 1911
This was an action instituted by the German Investment Company, the plaintiff below, the assignee of a note, against J. F. Westbrook, the maker, and D. R. Miller, the payee and indorser thereof. The suit was instituted before one of the justices of the peace of Pulaski County, in the township where D. R. Miller, one of the defendants, resided, and summons for J. F. Westbrook, the other defendant, was issued to the constable of Prairie County, where he resided, and service thereof was duly made upon him there in pursuance of section 4558 of Kirby’s Digest. On the return day of the summons against both defendants, neither made defense to the suit. Judgment by confession was rendered by the justice of the peace against defendant Miller, and by default against defendant Westbrook. Four days thereafter, defendant West-brook filed with said justice of the peace an affidavit and bond for appeal to.the circuit court from said judgment. The transcript was' duly lodged in the circuit court, which, upon motion, “quashed the service of summons had herein” on said West-brook, and adjudged that the cause as to him should be dismissed. From this judgment of dismissal the plaintiff has appealed.
The filing of the affidavit and bond for appeal by West-brook was such a substantial act as to constitute an appearance by him to the suit, and gave jurisdiction over his person to the circuit court upon the appeal. Whether or not service of the summons upon him in Prairie County, issued upon a suit instituted against him in a county not of his residence, was, under the circumstancés of this case, authorized by statute, the defendant Westbrook made himself a party to the proceeding by the act of filing his affidavit and bond for appeal, and could not thereafter object to the jurisdiction which the circuit court by this act acquired over his person. When the transcript was duly lodged in the circuit court, that court obtained jurisdiction over the subject-matter of the suit and the person of the defendant Westbrook. He could not then object in the crcuit court to the want of service of summons upon him in the justice of the peace court. He was precluded from raising the question as' to whether he had been properly served with summons in the justice of the peace court by the appeal which he prosecuted therefrom to the circuit court. Carden v. Bailey, 87 Ark. 280; Kansas City, S. & M. R. Co. v. Summers, 45 Ark. 295; Hopkins v. Harper, 46 Ark. 251; Holloway v. Holloway, 85 Ark. 431; Ball v. Kuykendall, 2 Ark. 195; McKee v. Murphy, 1 Ark. 55.
The court therefore erred in ordering the cause dismissed on account of any alleged improper service of the summons on Westbrook.
The judgment is reversed, and the cause remanded for new' trial.
