Hickey v. Matthews, 43 Ark. 341

Hickey v. Matthews

43 Ark. 341 | Ark. | 1884

Smith, J.

This was eertiorari to quash the judgment of a Justice of the Peaee. The transcript of the Justice’s proceedings, filed with the petition and authenticated by the certificate of the Justice, shows an action begun, before him, by Hickey against Matthews on an account, the amount of which is not stated, December 18, 1877; the issue of a summons for the defendant, the placing of it in the hands of a special constable, and the noting on the docket, of service of the same by reading on the 19th; the failure of the defendant, to appear on the 22d of December, the day set for trial, and a judgment by default for — dollars and costs.

On the other hand,.the transcript returned by the Justice in obedience to the writ of certiorari, shows the following state of facts ; Action begun December 15, 1877, on a promissory note, puiporting to have been made by the defendant for a sum under $50; the appearance of the defendant by attorney’on the 22nd and trial before a jury, with verdict 'and judgment for the plaintiff for $45.53.

At the instance of the petitioner for the writ the Justice was required to bring his docket into court; and upon inspection of the same, and examination of the Justice, his judgment was quashed by the Circuit Court.

0iL¿£Tno for appeal, ’ The only points that are open to- contestation in this proceeding are, whether a judgment valid on its face was in fact rendered; and whether the court which rendered it had jurisdiction of the subject matter and of the defendant’s person. Mere errors and irregularities could be corrected only on appeal.

The judgment that was set out in the exhibit attached to the petition was void for several reasons. No specific sum was found to be due the plaintiff. Nor is there any paper or memorandum in the record from which the amount could be ascertained by computation, as might be the case with a promissory note. But according to this exhibit, the action was upon an open account,, the amount of which is not specified, nor does it appear to have been sworn to. Further, it does not appear that the sum in controversy was within the jurisdiction of a Justice of the Peace, nor that the defendant had legal notice of the pendency of the cause, the service being by reading when it should have been by copy (Gantt’s Dig. Secs., 3730, 4512) and the judgment itself distinctly negativing the voluntary appearance of the defendant to the action.

«4 aeT; .tice m However, the transcript returned by the Justice is of jjjgkgj, authority than that exhibited with the petition. And that discloses a regular judgment upon a cause of of action over which he had jurisdiction and in a case wherein the defendant had appeared by attorney. Under the old law the return made to the writ of certiorari was conclusive as to the facts stated in it, and the facts stated in the petition could not be regarded. Redmond v. Anderson, 18 Ark., 449; McCoy v. County Court, 21 Id., 475; Dicus v. Bright, 23 Id. 107.

If the return was false the remedy was an action against the magistrate. People v. Ontario, 15 Barb., 286; Haines v. Judges, 20 Wend., 625. But in the year 1873 the Legislature passed an act, which enlarges the scope and office of this writ.

Affidavits may now_be read on such applications and evidence dehors the record may be introduced by either party on the hearing. The record of the inferior judicial tribunal is, however, still conclusive so far as it goes. Gantt’s Dig. Sec’s. 1196-7.

The effect of this Statute is to take away the conclusiveness of the return and to enable the court to look beyond the record certified to the original record itself, and to hear evidence as to any subsequent alterations and amendments of that record. This was done in the present ease. What was developed upon an inspection,of the original docket entries and the examination of the Justice is not disclosed. There is no bill of exceptions preserving the evidence upon which the court acted. And in the absence of any showing to the contrary, we, are bound to presume in favor of the correctness of the judgment below, that the record, when produced, did not agree with that set out in the return.

Affirmed.