194 S.W.2d 871 | Ark. | 1946
J. W. Hess brought suit in replevin against Jettie Morgan, in a justice of the peace court, to recover possession of a bull, valued at $60. In preparing the papers the Justice of the Peace used printed blanks prepared for the purpose, which, when filled out, contained the recitals essential to obtain an order for the delivery of the bull to Hess. The affidavit recites that oath and without having Hess sign it. A bond in the it was subscribed and sworn to before the Justice of the Peace who signed the jurat without administering the sum of $120, which was double the alleged value of the bull, was prepared and signed by Hess, who asked if he might make a cash bond. The Justice of the Peace informed Hess that the bond would have to be approved by the Sheriff, to whom the order of delivery was directed, and the Sheriff agreed to, and did accept a check to his order, drawn by Hess, for $120 in lieu of a personal surety. The validity of the check is not questioned.
It was held in the case of Wilson v. Williams,
The order for the delivery of the bull required Morgan to answer on June 23, 1945, but the cause was continued from that day, and set for trial June 30, 1945, at which time Morgan moved to dismiss the action, for the reason that Hess "had made no affidavit or bond as required by law in suits for replevin." The Justice refused to require the plaintiff to make additional bond, but accepted the check from the plaintiff in lieu of the bond. The court then permitted Hess to sign and make affidavit which he had previously failed to do. There was no error in permitting this to be done. Higgason v. Braswell,
Judgment was rendered by the Justice for the plaintiff, from which judgment the defendant did not appeal. On the contrary, he sued out a writ of certiorari, and prayed the cancellation of the judgment for the alleged reason that the justice court was without jurisdiction. Upon the trial in the circuit court the writ of certiorari was quashed, and from that judgment is this appeal.
Now the law is that an order of delivery may not be issued unless the plaintiff makes the affidavit, and executes the bond required by law, but it was long since held that failure to issue an order of delivery does not effect the nature of the suit. Earlier cases on the subject were reviewed in the case of Chapman v. Claybrook,
"In the case of Schattler v. Heisman,
If it be true that the bond given by Hess did not meet the requirements of the statute in that respect, this would have been ground to quash the order of delivery, but it was not ground to dismiss the suit. Morgan did not ask that the order of delivery be quashed, but asked that the suit be dismissed, and when that motion was denied, he interposed no defense, and seeks to quash the judgment on certiorari.
Our reports are replete with cases to the effect that certiorari cannot be used as a substitute for an appeal or writ of error, and it cannot be used to correct mere errors of the lower court. Among many other cases to that effect are the following: Carolan v. Carolan,
In Railway Company v. State,
In the case of Little Rock Traction Co. v. Wilson,
Here there is no lack of jurisdiction, and the circuit court properly quashed the writ of certiorari, and the judgment is, therefore, affirmed.