47 Ark. 131 | Ark. | 1886
Peter Webster, the appellant, was the owner of the land in controversy. Being indebted to Daniel, Straus & Co., as evidenced by his promissory note, they sued him on the note before a justice of the peace of Lonoke county. A summons was issued, and returned not served, because the defendant, Peter Webster, could not be found, the constable stating in his return that the defendant had left the county of his residence (Lonoke) to avoid the service of the summons, or so concealed himself that a summons could not be served on him. And thereafter, on the 13th day of April, 1878, the justice of the peace made a warning order in the following words :
“ State of Arkansas, j
' County of Lonoke, J
In Justice's Cottrt, Lonoke Coimty.
“ Daniel, Straus & Co., vs. Peter Webster.
“The defendant, Peter Webster, is warned to appear in this court within 30 days, and answer the complaint of plaintiff filed herein against him.
“ Given under my hand, this 13th day of April, 1878.
“(Signed,) T. C. Beard, J. P.;”
and ordered that this warning order be published for four consecutive weeks in the Lonoke Democrat, a newspaper published in Lonoke county, and appointed A. D. Lawhorn attorney ad litem for the defendant.
On the same day, Dan Daniel, one of the plaintiffs in that action, made and filed an affidavit in the following words:
■ “ The plaintiff, Dan Daniel, for Daniel, Straus & Co., states that the claim in this action against the defendant, Peter Webster, is for money due upon contract, evidenced by a promissory note, and that it is a just claim ; that they ought, as he believes, to recover thereon eighty-four 84-iooth dollars, and that said Peter Webster has left the county of his residence to avoid the service of a summons, as shown by the return of a constable to the writ of summons issued herein. 1
“ (Signed,) Dan Daniel.”
“Subscribed and sworn to before me, this 13th day of April, 1878. (Signed,) T. C. Beard, J. P.;”
and filed the bond required to obtain a general order of attachment, conditioned according to law, which was approved. And on the same day the justice issued an order of attachment, returnable on the 18th day of May, 1878, and adjourned his court to that day. On the 18th day of May, 1878, Lawhorn filed his acceptance of the appointment of attorney ad litem, and the constable to whom the order of attachment was directed made return that no personal property of defendant could be found on which to levy the attachment, and that he had executed the order of attachment upon the above-mentioned tract of land by posting copies thereof in a conspicuous place thereon, and that defendant not being found no copy or' notice was served on him; and the plaintiffs, Daniel, Straus & Co., filed with the justice proof of publication of the warning order, showing that it was published for four consecutive weeks in the Lonoke Democrat, a newspaper printed and published in the county of Lonoke; and the causé was continued until the 18th day of June, 1878, on which day, the plaintiffs appearing, the cause was heard, and the plaintiffs were adjudged to be entitled to recover the amount sued for and the attachment was sustained, and a transcript was ordered to be filed with the clerk of the Lonoke circuit court in order that the land attached might be sold in the manner prescribed by law to satisfy the amount adjudged to be due the plaintiffs. A certified transcript of the judgment and docket entries of the justice of the peace in the cause was filed with the clerk of the Lonoke circuit court, whojhereupon issued an execution, directed to the sheriff of Lonoke county, commanding him to sell the land, which he did, on the 5th day of September, 18-78, and Dan Daniel and Gus Straus, the appellees herein, became the purchasers thereof, they being the highest and best bidders. The land not being redeemed in twelve months the sheriff conveyed it to Daniel & Straus, the purchasers, by deed, reciting therein the names of the parties to the execution, the date when issued, the date of the judgment, the time, place and manner of the sale, and other particulars recited in the execution, certificate of sale, and the failure to redeem in twelve months. On the 4th day of October, 1881, Peter Webster brought this action in the Lonoke circuit court, against appellees, for the recovery of the land, it being in their possession.. Judgment was rendered in favor of appellees. Peter Webster filed a motion for new trial, which was overruled, and he saved exceptions and appealed.
The only question involved in this case is, was the sale made by the sheriff void ?. Appellant insists it was. The following reasons which he gives for saying so, are only necessary to be noticed by us:
1. The affidavit for the attachment was insufficient.
2. The warning order was indefinite, uncertain, and was prematurely issued.
3. The proof of the publication of the warning order was not made as required by law.
4. No affidavit was made by Daniel, Straus & Co., before the issuance of the execution by the clerk, to the effect that Webster had no personal property out of which their debt could be made.
5. No indemnifying bond was given before rendering judgment.
6. The execution was based on an insufficient transcript.
7. The sale made by the sheriff was never approved or confirmed by any court.
Nothing can be presumed which is necessary to give a justice of the peace jurisdiction. “ Courts not of record,” says Freeman on Judgments, “ are like special agents — we must see their authority before regarding their decisions as lawful; but seeing it, we are to respect it. Their authority is not the less certain because specified and confined. It is well settled that when the jurisdiction of a court of limited and special authority appears upon the face of its proceedings, its action can not be collaterally attacked for mere error or irregularity, The jurisdiction appearing, the same presumption of law arises — that it was rightly exercised — as prevails with reference to the action of a court of superior and general authority.” Freeman on Judgments, sec. 524.
.There is a difference between a want of jurisdiction and a defect in obtaining jurisdiction. The defendant must be brought within the power of the court by service of summons, either actual or constructive, or of some other process issued in the suit, or by the voluntary appearance of the defendant in person or by his attorney, in order to give the court jurisdiction. If, however, “there is any irregularity in the process, or in the manner of its service, the defendant must take advantage of such irregularity by some motion or proceeding in the court where the action i's pending. The fact that the defendant is not given all the time allowed him by law to plead, or that he was served by some person incompetent to make a valid service, or any other fact connected with the service of process, on account of which a judgment by default would be reversed upon appeal, will not, ordinarily, make the judgment vulnerable to a collateral attack.” Freeman on Judgments, sec. 126.
In Harrington v. Wofford, 46 Miss., 41, the court said : “ It is insisted that the decree of the court below, ordering a sale of real estate, is not only erroneous, but void, for the want of sufficient return of the service of process upon the defendants. We do not think so. There is a very clear and obvious distinction between a total want of service of process and a defective service of process, as to their effect in judicial proceedings. In the one case the defendant has no notice at all of the suit or proceeding against him. The judgment or decree in such case, it is conceded is coram non judice and void, upon the principles of law and justice. In the other case, the defective service of process gives the defendant actual notice of the suit or proceeding against him, and the judgment or decree in such case, although erroneous, would be valid until reversed by a direct proceeding in an appellate jurisdiction, and its validity can not be collaterally called in question. And this view of the law is believed to be sustained by reason, principle and authority. The case of Smith v. Bradley, 6 Smeed & Marsh, 492, decides that a defective return of process presents the question of error or no error.” Campbell v. Hays, 41 Miss., 562; Isaac v. Price, 2 Dil., 351; DeTar v. Boone County, 34 Iowa, 490; Glover v. Holman, 3 Heisk., 519.
In Ballenger v. Tarbell, 16 Iowa, 492, Mr. Justice Dillon, in delivering the opinion of the court, said: “ The original papers in this action were not before the court, but the transcript shows that the original notice was served by the constable on the 6th day of February, i860, on the wife of Robertson, and as to Tarbell, the service, as recited in the justice’s transcript, was as follows : ' On the 7th day of February, i860, I, H. H. Wilson, a justice of the peace, served the said notice upon John Tarbell, by reading the same to him personally, in the city of Keokuk, who confessed judgment;’ and on the nth day of February, i860, the justice rendered judgment against the defendants, without any appearance by them. That this sérvice, as to Tarbell, was defective, is apparent, because the statute requires five days’ notice, .and here were only four. It may also be defective because served by the justice himself, and not the constable. It was, therefore, clearly erroneous in the justice to have rendered judgment against Tarbell on this service. It would have been, without doubt, reversed on writ of error. But it was erroneous simply, and not void. It is not a case where there is no service at all, but a case where there was a defective service. The justice erred in deciding that this service authorized him to render judgment against Tarbell; but neither Tarbell nor his assignee can question the validity of this judgment^or claim to have it treated as void in this collateral proceeding. Bonsall v. Isett, 14 Iowa, 309; Cooper v. Sunderland, 3 Id., 114; Morrow v. Weed, 4 Id., 77; Boker v. Chapline, 12 Id., 204.”
In the suit before the justice of the peace the warning order supplied the place of a summons. The publication of it in the manner prescribed by the statute constituted it a constructive notice to the 'defendant. The proof of publication filled the place of a return upon a summons. If the warning order was properly published the failure to make the proof of publication by the person and in the form prescribed by law, would be a mere irregularity, and would not defeat the jurisdiction of the justice, and could not be taken advantage of by a collateral proceeding, as shown by the authorities cited. The constructive notice would, nevertheless, have been given.
It is contended by appellant that the proof of the publication of the warning order, made in the suit before the 'justice, was not made as required by law. There was no evidence of the proof of publication of the warning order, except a certified copy of the docket entries of the justice, which the statute makes competent evidence, from which it appears that .proof of publication of the warning order was filed, showing that the warning order was published for four consecutive weeks in the Lonoke Democrat, a newspaper printed and published in Lonoke county. As already shown by the authorities cited, this is sufficient for the purposes of this action.
It is insisted by appellant that the warning order was prematurely made. The statute provides that justices’ courts shall be governed in attachment suits by the rules in force in the circuit courts, so far as they are applicable; that when it is stated in the return, by the proper officer, of a summons against the defendant, that the defendant has left the county of his residence to avoid the service of a summons, or conceals himself so that a summons can not be served on him, the clerk shall make upon the complaint an order warning such defendant to appear in the action within thirty days from the time of making the order; and that when such statements are made in such returh it shall be equivalent to the statement of such facts in an affidavit for attachment. This statement was made in the return on the summons in the suit before, the justice, and the warning order was made after the return, and not prematurely.
On the same day the warning order was made an affidavit was filed, in which affiant states that “the defendant had .left the county of his residence to avoid the service of a summons, as shown by the return of a constable to the writ of summons ” issued by the justice. But it is insisted that the affidavit is defective, because it appears to have been made upon information and belief. We think not. According to every reasonable intendment the reference to the return of the constable was •only made as evidence of the truth of the statement sworn to, and for no other purpose. The affidavit and warning ord.er being made at the same time, the affidavit will be considered to take effect first. The rule is, “ where two acts are done at the same time, that shall be considered to take effect first which ought, in strictness, to have been done first in order to give it ■effect.” Hubbardston L. Co. v. Covert, 35 Mich., 254.
It is further contended that the warning order is vague and uncertain, because it does not show before which justice the defendant was warned to appear. It was susceptible of but one interpretation, and it is clear that he was required to appear before the justice making the warning order. No other reason■able construction could have been placed upon it.
The fourth reason given by appellant why the sale should be held void is, the affidavit required by Section 348 of Mansfield's Digest was not filed. No such affidavit was required or was necessary. Section 4123 Mansfield's Digest says: “'Whenever the constable, to whom any order of attachment issupd by any justice of the peace of this state shall be directed, can find no personal property upon which to levy the same, he may and shall levy such order upon any lands, tenements, town lots, interest in or equity of redemption in any real property belonging to the defendant in such attachment, subject to execution by the laws of this state, and make his return accordingly, describing in said return the property so levied upon.” That was done in this case. The return of the constable shows that he could find no personal property on which to levy the order of attachment. Section 4126 says what shall be done after this, before the land can be sold, and how it shall be sold. It says. “ In all cases by suits by attachment in which lands, tenements, town lots, interest in or equity of redemption in any real property, shall have been levied upon as provided for in the preceding section, the plaintiff, if he obtain judgment thereon, shall be entitled to a transcript of the judgment and proceedings in said cause, and, upon the filing of such transcript in the office of the clerk of the circuit court of the county in which such, judgment was obtained, the same shall be entered in the docket of the circuit court for common law judgments, and shall thenceforth have the same force and effect of a judgment rendered in said circuit court, upon which an order of sale shall be issued by the clerk of said court, directed to the sheriff of the county, under which the property so seized and levied upon and condemned to be sold by said judgment shall be sold in the same manner, and with the same notice, as sales of real property under-executions are made. Provided, no such sale shall be made until the plaintiff shall execute bond to the-defendant in the manner now prescribed by law.”
But appellant says the sale was illegal and void, because, no indemnifying bond was filed before the sale, as required by Secs. 4126 and gigo of Mansf. Dig. There is no positive evidence that such bond was or was not filed. The deed executed by the sheriff to appellees contained the recitals required by the statute, and was duly made and executed, acknowledged and recorded, as required by law. . The statute in such cases, made and provided says such a deed shall be evidence “ of the legality and regularity of the sale of the land so conveyed untiL the contrary be made to appear.” The presumption, then, is, the bond was filed according to law. Mansf. Dig., secs. 668, 3075; Bush v. Visant, 40 Ark., 124.
The sixth objection of appellant to the sale is, that the execution under which it was made, was based on an imperfect and insufficient transcript. If there is any defect in the transcript filed with the clerk, on which the execution was issued, it is, it did not contain a copy of any bond, proof of publication, order of attachment and every other paper filed with the justice, which were not copied on his docket. We fail to see wherein this omission affected appellant injuriously. If such an omission amounts to anything, it is an irregularity which does not make the sale void, and can be of no avail in an action like this.
The statute requires a return of nulla bona to be made upon an execution issued by%a justice of the peace, before a transcript of the justice’s judgment on which it was issued can be filed in the circuit clerk’s office for the purpose of reaching realty. In Jordan v. Bradshaw, 17 Ark., 112, it was held that the failure of the constable to make the return of nulla bona on the execution before the transcript is filed in the circuit clerk’s office is, at most, an irregularity, and as such, can only be taken advantage of by the defendant in the judgment, in a direct proceeding interposed for the purpose of quashing the process issued upon such judgment.
The last objection to the sale we shall notice is, it was not approved or confirmed by any court. Be this as it may, it was not required and was unnecessary. The sale was not made by the court, or under the supervision of any court. It was required to be made under an execution and in the manner prescribed by law for the sale of land under execution, and no report thereof was required to be made to any court.
Judgment affirmed.