| Ark. | Jan 15, 1840
delivered the opinion of the Court:
The only question material to be decided, is whether the writ of capias, without the seal of the Circuit Court thereto, is sufficient in law to authorize a judgment by default, for the non-appearance of the defendant, to be given against hirn? The 14th section of the VI. article of the Constitution of this State, ordains that “ all writs and other process shall run in the name of the State of Arkansas,” and bear tests and be signed by the Clerks of the respective courts from which they issue, Rev. Stat. Ark. 36. And the 2d sec. of the 129th chap, of the Rev. Stat. Ark. 777, provides that u all such writs shall be sealed with the judicial seal of such court.” These injunctions of law are positive and peremptory, and must be observed and obeyed; and, therefore, any process issued out of any court of record having a judicial seal, without such seal being affixed thereto is illegal, and cannot impose any legal duty on the person upon whom it is executed to observe and obey its mandate, or become the foundation of a judgment by default, for the non-appearance of the defendant, and upon this ground the Circuit Court erred in giving judgment agaipst Woolford, he not having entered his appearance to the action, and therefore the judgment of the Circuit Court of Pulaski county must be, and the same is hereby, reversed, annulled, and set aside with costs; and the cause remanded to said Circuit Court for further proceedings thereon to be there had, according to law, and not inconsistent with this opinion. Büt according to the uniform practice in such cases, the defendant below, as he has volufttarily made himself a party to this suit, by prosecuting his writ of error in this court must, upon the return of this case to the Circuit Court as above directed, be regarded as though he had been duly served with a valid writ to appear there, and answer the action of the plaintiff, more than thirty days previous to such term ©f said court.