42 Ark. 268 | Ark. | 1883
This was an action on an attachment bond against Thrower, Silver and Cameron. The bond was given in a case pending before the mayor of Eureka Springs, sitting as a justice of the peace, wherein Silver and others were plaintiffs and Mrs. Luck was defendant. Upon the dissolution of the attachment, Mrs. Luck brought this action, alleging that the marshal in executing the writ had taken and damaged her furniture, had destroyed her business and compelled her to go to a boarding house and to employ an attorney.
Thrower and Oameron filed a plea of former recovery for the same cause of action and satisfaction of the judgment so recovered.
The record is in some confusion upon the point whether Silver joined in this plea or not. He had been proceeded against as a non-resident and had been brought in by publication of a warning order in a newspaper. But no attachment against him had been prayed for or granted. The record entry shows the filing of an answer by his co-defendants at March term, 1882. And the answer begins : “ Come the said defendants, B. K. Thrower and J. H. Cameron, by their attorneys, Peel and Hodge, and for plea and answer to plaintiff’s said complaint, say,” etc. After Cameron’s name, the words “and D. II. Silver” are interlined ; but it does not appear when and by whom this interline-ation was made. At September term, judgment by default was rendered against Silver, and a jury impanneled, who assessed the plaintiff’s damages at $500.
The court evidently proceeded upon the idea that Silver had never appeared to the action. And if such was the case, no personal judgment could be rendered against him upon constructive service. Gantt’s Digest, sec. 4737; Williams v. Ewing, 31 Ark., 229; Goodwin v. Anderson, 17 Ib., 36; Cooper v. Reynolds, 10 Wall., 308; Pennoyer v. Neff, 95 U. S., 714; Coleman’s Appeal, 75 Penn. St., 441; Drake on Attachment, 5th ed., secs. 5, 449.
If, on the contrary, Silver did unite with his co-defendants in a joint answer, then no valid judgment could be given against him until the issue raised by that answer had been, in some way, disposed of. Hicks v. Vann, 4 Ark., 526, Reed v. Bank of The State, 5 Ib., 193; Alexander v. Stewart, 23 Ib., 18.
The judgment was, therefore, in any view, erroneous, and must be reversed. Upon the remanding of the cause, Silver is to be regarded as in court, the same as if he had. been personally served with process. He has voluntarily made himself a party to the action by prosecuting this-writ of error.
