1 Ark. 376 | Ark. | 1839
delivered the opinion of the court:
This was an action of covenant brought by the appellee against the appellant on a bond to perfect title to a tract of land; the writ hearing date September the 8th, 1837; and is in the following words, viz: The State of Arkansas to the Sheriff of Conway County, greeting— You are hereby commanded to summon Benjamin Murphy, if he be found within your baliwick, to appear before the Judge of our Circuit Court, at the court house in the county aforesaid, on the first day of our next September term, it being the fourth Monday of September next, then and there to answer unto Jenkins Williams in a plea of breach of covenant, damages one thousand dollars; and that you make due return of this writ. In testimony, <&c.
On the twenty-eighth day of the same month in which the writ was issued, being the September term of the court, judgment by default was entered against Murphy, and a writ of enquiry awarded, returnable to the May term thereof, when the damages were assessed by a jury, and judgment entered for six hundred and twenty-four dollars, from, which Murphy appeals to this court.
The fourth assignment of errors, and the only one which., we deem it necessary to look into, is, that the writ of summons bears date in September, 1837,'returnable to the next September term, in September next, (A. D. 1838,) and judgment was rendered by default in September, 1837. By reference to the Arkansas Digest page 313, it is declared that all writs issued by any courts in this State shall be made returnable to the next term after the date of such writ; this act, however, was so far modified by the general assembly, in 1803, same Digest, 3jU, as provides that where a suit is brought within fifteen days immediately preceding the term of the court in which it is issued, the writ-shall be made returnable to the second ferm said court ensuing the date of the writ; bnl: there is no provis;ott by which a writ can be extended beyond the- second term. It is evident, that where the writ, ns in thin instance, is returnable to the 4tB Monday of September next, it has reference the term of the court to be held in 1838, more than one year from the date of the writ, nor does the appellee contend that the writ is good, but insists that the record shows that Murphy appeared in the court below, and thereby waived any advantage which he might have derived from such defect.
What is this statement upon which the appellee relies? On the 28th day of September, 1837, in the same month in which the writ is issued, there was an entry made on the record in the following words: “ This day came the parties by their attorneys, and the defendant having failed to file any plea (o the plaintiff’s declaration, it is consid* ered by the court that judgment be rendered against the defendant for want of a plea,” Does this constitute an appearance; or is it binding on the defendant. The object in resorting to a court of justice, is to seek redress for some injury; to do this the act of the parties, and the act of law must co-operate. Has there been any such a co-operation in this instance as would authorize the court to proceed? In the examination of this subject we do not deem it necessary to review and trace up the mode of bringing writs as known to the common law. By our Statute actions arc commenced by filing the declaration, and issuing the writ or process at the same time. The object of this process is to compel the defendant to appear in coui't, in order to contest the suit, and abide the determination of the law. if he fail to appear and plead within the three first days of the return term, the plaintiff may cause judgment to be entered up against him at any lime during the last day of the term; which judgment shall be final, except when the damages are not liquidated and reduced to writing, in which event a writ of enquiry shall be executed at the next succeeding term after the interlocutory judgment is entered, (Ark's Dig. 320.) Thus we see that if the defendant does not appear and plead, or make an excuse for not so doing, the plaintiff has a full and adequate remedy. In order to constitute an appearance in a legal sense of the term, there must be some substantive act by the defendant that constitutes him a party to the suit. For what purpose did Murphy come into court? If for any ostensible purpose it ought to be shown, for it would be absurd to suppose that he presented himself in the court below simply to waive all defehce and permit judgment to go against him one year before the writ was returnable, for be neither confesses the cause of action, nor malíes any defence: we are clear, therefore, that the entry made on the record, ought not to compromit the parties’ rights, and that the court •erred in permitting proceedings to be had'against Murphy in this suit at the September term thereof in 1837; Delam vs. Hopkins, 14 Hill's R., 118; Hard, Rep., 169; 1 Chitty, 583, 710; but as the appellant has appeared here and assigned his errors, he has become a party to the proceedings, and consequently, Murphy, fin accordance withjjthe rule laid down in the case of Gilbreath vs. Kuykendall, is bound to appear in the circuit court, when the same proceedings will be had. in this suit as though he was served with a" valid process requiring his appearance there more than thirty days before the first term of the court next ensuing,']io which the cascjs remanded.
The judgment of the Circuit Court of Conway County, is therefore hereby reversed and set aside with'costs, and the case remanded to said court for further proceedings to be had therein according to law, •and not inconsistent with ibis opinion.
