1 Ark. 455 | Ark. | 1839
delivered the opinion of the court:
This is an action of debt founded upon a writing obligatory, instituted by the plaintiff" in error against the defendants, in the Circuit Court of Johnson county. The plaintiff filed in the clerk’s office his affidavit, which is subscribed and sworn to before the clerk, stating “ that the action of debt that he is now about to institute against Bennett H. Martin, Andrew Scott, John Macbeth, Thomas Strickland, and Sheldon Wooster, is founded on a real subsisting debt; and this affiant verily believes that the sum of six hundred dollars as bail will not be more than will satisfy the debt and costs.” Whereupon a writ of capias ad respondendum was issued, directed to the Sheriff of Johnson county; endorsed for bail in said sum, and a counterpart thereof was regularly issued, directed to the Sheriff of Pope county, which appears to have been regularly executed on all of the defendants except Wooster, upon whom the former writ appears to have been executed by the Coroner, instead of the Sheriff of Johnson county, to whom it was directed.
At the return term of said writs, the defendant Wooster without appearing to the action, filed a separate motion to dismiss the suit on the following grounds:
1st, That there is no such affidavit filed as is required by law, to authorize the issuing of a capias in- this suit.
2nd, That said writ hath not issued by authority of law, but contrary to, and in violation thereof.
3rd, That the writ of capias issued against this defendant is issued by the Sheriff of Johnson county, and served by the Coroner of said county without warrant of law.
4th, That there is no legal and valid service of. said writ- on defendant.
5th, The court has no jurisdiction of the case.
The other defendants also filed their motion jointly to dismiss the suit on the following grounds: *
1st, That there is no such affidavit filed as is required by law to authorize the the issuing of the writ of capias in this suit.
2nd, That said writ hath not issued by authority of law, but contrary to, and in violation thereof.
3rd, That the court has obtained no jurisdiction of the case.
Upon the hearing of said motions, the court dismissed the suit, and gave final judgment for the defendants, that they go hence thereof without day, and recover of the plaintiff their costs of suit. The plaintiff excepted to the opinion of the court sustaining said motions, and filed his bill of exceptions, which composes a part of the record, and prosecutes this writ of error to reverse said judgment.
There is an assignment of errors by the plaintiff, which is joined by the defendants.
The first question presented by the record and assignment of errors, is this; Is the affidavit of the plaintiff sufficient to authorize the issuing of the capias ad respondendum against the defendants?
The act of 1807, Ark. Dig. 317, S. 12, contains this provision— «In all actions of debt founded on any judgment, writing obligatory, . bill or note in writing, for the payment of money or other property, iu actions of covenant, and in actions on the case, where the plaintiff makes affidavit or affirmation of a real subsisting debt, and of the sum in which he verily believes the defendant ought to give bail to secure such debt and cost, (which affidavit may be taken before any justice of the peace in this Territory, and before the clerk of the court from which the writ is to issue, and filed in his office,) it shall, and may be lawful for the plaintiff to sue out of the clerk’s office of the proper court, a writ of summons, as is prescribed in the preceding section, or a writ of capias ad respondendum; on which capias the true species of action, and the sum for which bail is demanded, shall be endorsed on said writ.”
The plaintiff in his affidavit filed in this case states that this action is founded upon a real subsisting debt, and he verily believes that the sum of six thousand dollars as bail, will not be more than will satisfy the debt and costs; and although it is notin the very phraseology of the Statute, in our opinion it comprehends every thing required to be stated; for as no person can hear it read without understanding from it that the plaintiff has sworn that he believes the defendants ought to be held to bail, in the sum of $6,000, fe> secure his debt mentioned in the declaration and costs of suit, and this is all that is required by the-Statute; and it has been held by this court that the affidavit for a writ of attachment, which is a stronger case than the present, need' not be in the very words of the Statute, and if it contains a statement of every essential fact required by the Statute to be sworn to, it is sufficient. We are therefore of the opinion that the affidavit in this case is sufficient in law to authorize the issuing of the capias ad res» pondendum, and consequently that the same did not issue contrary to,, hut in accordance with law. This question being thus determined dispenses with the necessity of our deciding the question principally argued in the defendant’s brief, whether a capias ad respondendum can lawfully issue in any action founded on a writing obligatory without such affidavit or affirmation being made and filed by the plaintiff.— Therefore upon that question we give no opinion.
The next and only remaining question relates to the service of the writ on Wooster, who appears to haye béen the only defendant served in the county where the suit was .instituted. The writ was directed to the Sheriff and served by the Coroner, and therefore the execution is said to be illegal and not valid; but according to the principle acted upon by this court at the present term in the case of Hughes vs. Martin, where the reason thereof is stated, it is not considered a legal ground upon which the suit could be rightfully dismissed, on the motion of the defendants; although it should be conceded that the service is illegal and wholly insufficient, and imposed no. legal obligation on the defendant to appear and answer the plaintiff’s action: and no valid judgment founded thereupon could be given against him, if he had failed to appear; and therefore it is not necessary to decide any thing in relation to the service of the writ on Wooster, as it could have no effect upon the present decision, whatever way it might be determined, and consequently we express no opinion upon it.
From any thing appearing in the record, we do not perceive any ground for the objection that the court had no jurisdiction of the case; for if one of the defendants resided in the county where the suit was institituted when it was commenced, that was sufficient to confer on the court jurisdiction of the case; and it is not usual in practice, where the suit is prosecuted against defendants residing in different counties, to allege the fact in the declaration, or to state in what county •each defendant resides. Although this would, in óur opinion, be the correct practice, yet it is not deemed matérial to the question before us, because it is a matter in pais, which the court cannot judicially know; and therefore the party objecting to the jurisdiction were, if they relied upon the fact, bound to shew that none of the defendants were resident in the county where the venue is laid, when the suit was instituted: and they, having wholly failed to shew that faetón the record, cannot avail themselcves of it. And it appears by the record that the court had jurisdiction of the matter in controversy in the suit. The right of being sued in the county where some one of the defendants reside, when they reside in different counties, is a personal privilege of which the defendants may avail themselves by a proper plea to the jurisdiction of the court; but we are not aware of any Jaw, or settled rule of practice, which permits them to have the same advantage thereof on mere motion, and more especially where the motion is general, as in this case, and does not even pretend to state any facts which if true would deprive the court of its apparently rightful, legal jurisdiction of the cause.
■yj/g are, therefore, of the opinion that the Circuit Court did err in dismissing this suit on the said motions of the defendants; and for this error the judgment ought to be, and the same is hereby reversed, annulled, and set aside with costs, and the cause remanded to said Circuit j0]inson County; and according to the settled practice, the case must, upon the return teim then of to the said court, be proceeded in as though the O'iginal process was returnable thereto, and all of the irjdWMbmts regularly and legally served therewith: they having made theitF'dves parties to the proceedings, by joining to the assignment of errors bled in this court. The motions of the defendants to dismiss the suit must be overruled, and leave be granted to the parties to plead over, or amend their pleadings, in the same manner as they would be authorized bylaw and the rules of practice to do, at the return term of the process, and such further proceedings be had in the case, as are authorized by law, and are not inconsistent with this opinion.