| Ark. | Jul 15, 1839
delivered the opinion of the Court:
It is as much a principle of natural justice, as of legal right, that no one can be made a party to any judicial proceeding, without he has some notice thereof, and an opportunity offered him of defending his interest; and it is equally clear that he cannot be bound by any judicial process, judgment, or decree, to which he has not been legally constituted a party on the record. The summons in the case before us, issued from the Justice’s Court, on the first of June, A. D. 1838, and was made returnable on the 16th day thereof. It was properly executed on the 9th day of June-, A. D. 1838, but the record wholly fails to show that the defendant appeared on that day to-the writ, the 16th day of June, or that the cause was continued-by consent or application of the parties. On the 17th day of June,judgment was entered up by default against the defendant, Israel Woolford, by-the Justice’s Court. It is most manifest that this judgment is illegal and void, for it was entered up on a day not authorized by the summons, and inconsistent with its mandate, and consequently, on a day the defendant was not bound to appear or be in court. The record does not show that he appeared agreeably to the summons outlie 16th day of June, and as it is silent on that point, no legal inference can be drawn in favor of such fact, or that he waived his right-to the notice, and voluntarily came in and defended the suit. Judgment was entered against him by default, but as he was never lawfully notified to appear on the day, or at the time it was given, of course he could not be guilty of any legal default; and, therefore, the judgment before the Justice’s Court, was entirely insufficient and void. It is clearly evident from an inspection of the record, that no appeal was ever prayed or taken either by the defendant or plaintiff in the action, from the judgment of the Justice’s Court. The first part of the entry stated that the plaintiff prayed an appeal, and offered to give special bail, but it wholly fails to show that the court ever entered an order allowing such appeal, or that he ever entered into the recognizance required by law. He has done no single act, required by the Statute regulating the practice in such cases, and consequently as the court never granted him an appeal, it cannot be pretended, that upon his part, there was a valid appeal taken in the case. His mere prayer for an appeal, and offering to- give special bail, can in no possible point of view, be considered as constituting a valid appeal. There must be an action of the court on the subject, as well as of the party, and a compliance with the necessary requisites of the Statute to-constitute a valid appeal.
We will now see whether the defendant ever prayed or took an appeal from the judgment of the Justice’s Court. That he did not is perfectly evident. The record does not even state that he prayed an appeal, much less that he took one. The latter part of the entry states, that “ the said McKnight came personally before the Justice, and acknowledged himself jointly bound with the above named defendant, to pay the costs and condemnation of the Circuit Court. Does this constitute a valid appeal on the part of the defendant, Woolford ? Most assuredly it does not. In the present instance the defendant neither prayed or took an appeal, nor did he enter into a valid recognizance before the Justice of the Peace, agreeably to the provisions of the Statute, in such cases made and provided. . The court neither granted or allowed him the benefit of an appeal, nor did the defendant do any act whatever, amounting to an appeal; as the record unquestionably proves. The supposed recognizance in this case is wholly void and nugatory in every respect. It contains no valid condition, it was not signed by the parties, and it is taken in a case where there was no appeal either prayed or granted. It was made payable to no one, nor did Joseph W. McKnight ever agree to become bound as the security of Israel Woolford in any recognizance. The act regulating appeals from the Justices of the Peace to the Circuit Court, declares “ that if the defendant appeals, he with one or more approved securities, shall enter into a recognizance before the Justice, acknowledging themselves to be indebted to the plaintiff in a sum sufficient to cover the matter in dispute, and all costs, upon condition that, if the judgment of the Justice be affirmed by the court, the defendant will pay the amount of such judgment and costs,'” which recognizance shall be subscribed by the party appealing and his securities, and tested by the Justice. See Dig. 373, sec. 55. It is clearly true, that the defendant did not in one single instance comply with any of these indispensable requisites; and, consequently, there was no appeal prayed for, or taken by him from the judgment of the Jus. lice’s Court. This being the case, it necessarily follows, that the Circuit Court had no jurisdiction of the cause, and of course could pronounce no valid judgment in the premises. In cases coming up on appeals from the decision of Justices of the Peace, the jurisdiction of the Circuit Court attaches and grows out of the appeal prayed and taken. And if there is no appeal, the Circuit Court cannot rightfully assume cognizance of the cause. And so it has been ruled in this Court, in the case of Smith vs. Stinnett. It unquestionably follows from these positions, that the judgment of the Circuit Court was wholly illegal and void, because it neither possessed or acquired jurisdiction of the subject matter in dispute, consequently the judgment and decision of the court below must be reversed with costs, the cause remanded to be proceeded in agreeably to the opinion here delivered, which is, that the Circuit Court dismiss the case for want of jurisdiction, and transmit the original papers back to the Justice’s Court for further proceedings therein, according to law and the instructions here ■ given.