Gilbreath v. Kuykendall, 1 Ark. 50 (1838)

Oliver Gilbreath against James Kuykendall.

Walker and Fowler, for the plaintiff:

Cummins and Pike, contra.

Ringo, Ch. J.,

delivered the opinion of the Court: This is a writ of error with supersedeas to a judgment by default in an action of 'debt, obtained by Kuykendall against Gilbreath, in the Crawford Cir­cuit Court. The suit was commenced and the writ bears date on the 18th day of August, 1839, and commences as follows, to wit:

“ Territory of Arkansas,).
County of Crawford. ,- y
“ The United States of America to the Sheriff of Crawford county, 44Greeting:’ You are hereby commanded to summon Oliver Gilbreath, “if he be found in your bailiwick, 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 “August next, then and there to answer James Kuykendall,” áte.
The Sheriff’s return to the writ, is in these words, to wit: “ Served “the within summons rite, by reading the same to him in presence of liA. Boyd and James Rise. Richland township, Crawford county% Arkansas Territory, August 28th, 1836.
“JESSE MILLER, deputy Sheriff.
“WM. P. MOORE, Sheriff.”

The defendant below failed to appear, and final judgment by de* fault w;as given against him at the December term, 183G, for the debt-­mentioned in the declaration, and damages for the detention thereof, with costs of suit. Several errors have been assigned, most of which .g unnecessary mention. The second is to the effect that the writ runs in the name of the “United States of America,” when it should have run in the name of the “ State of Arkansas.” And the fourth states, in substance, that it appears that there was no legal ser­vice of the writ and declaration on Gilbreath, and that he did not appear to the action. The questions raised by these assignments of error, may well be'considered,' together; for if the writ was void, or not legally executed'on the defendant below, he was under no legal obligation to, appear or answer the plaintiff’s action, and could not be considered as in default in failing to do so. The defendant’s right to ihsist upon a valid writ and legal service thereof upon him, before he Vfa3 bound to appear, or subject to the consequences of a legal default for'not' appearing, unless waived by himself, must be admitted. No such waiver, either, in fact or in láYv, expressed or implied, is shown by the record, and none can be presumed. -Consequently, as the defendant below did not appear, he must be regarded as entitled to. the benefit of all legal exceptions to the writ and service thereof.

We wiil now proceed to examine the writ and. return, and sec how far they justify and support the judgment given thereupon by the court below. The writ was an ordinary summons. By the act of 1807, sec. If) in Steele and McCampbel's Dig. of the laws of Arkansas, pages 316, 317, yet in force in this State, it is provided that “The service of a summons shall be by reading the writ, declaration, “petition, or statement, to the defendant, or delivering him a copy “thereof, or leaving such copy at his usual place of abode with some “person of the'family above the age of fifteen years, and informing “such person of'the contents thereof; such service to be at least “ fifteen days before the return day thereof,”

" Tirif! statutory provision furnishes the only rule by which the officer executing the summons must be governed. He must conform to. the directions there given,' and any material variation therefrom, will viti­ate the service. ’His return, ought, with reasonable certainty, the time, place, and manner of the service, and the name of the per­son or party upon whom it is made, so that it may appear to the court that the service was made in conformity with the provisions of the statute upon the person or party named in the writ, at a proper time, and within the jurisdiction of the officer making it. By comparing the return- of the Sheriff to the writ in this case, with the statutory provisions above recited,, it appears, manifestly, that the service was not made in the manner directed. The summons, only, and not the writ and declaration, as required by the statute, was read; but to whom that was read, does not appear by the return: and for aught that does appear, the writ may have been read to some person not named in it: we will not presume the fact to have been so; yet such might have been the case, and every thing stated in the return be true. The service was, therefore, not only not in conformity with the provisions of the statute, but the return thereof by the Sheriff is toe indefinite and uncertain to be the foundation of a judgment by default, By the Constitution of this State, under the title Judicial Department^ sec. 14, page 16, it is declared that “all writs and other process shall run in the name of the State of Arkansas, and bear teste and be signed by the Clerks of the respective courts from which they issue.” The first section of athe Schedule to the Constitution, page 19, declares, “That no inconvenience may arise from the change of government, “we declare that all writs, actions, prosecutions, judgments, claims, “ and contracts of individuals and bodies corporate, shall continue as “if no change had taken place; and all process which may be issued “under the authority of the Territory of Arkansas previous to the ad- “ mission of Arkansas into the union of the United States, shall be as “valid as if it issued in the name of the State.” By act of Congress, approved June 15th, 1836, Arkansas was admitted into the union oí the United States as a sovereign and independent State. From that period the Constitution has been in full operation as the paramount law of the State. The provision first quoted, requires that all writs and other process shall run in the name of the State of Arkansas^ and the declaration in the Schedule only applies to writs and process issued “previous to the admission of Arkansas into the union of the United States.” This writ was issued more than two months after the admission of Arkansas into the Union, and does not run in the name of the State of Arkansas, as required by the Constitution; and for that reason it is void. Other exceptions to the writ have been assigned by the plaintiff in error, which it is unnecessary to notice, as we consider the writ void, and the service thereof entirely insufiffi dent, for the reasons above stated. ’ .

The judgment of the court below must therefore be reversed, with costs; but as the plaintiff in error has now made himself a party to the suit, by voluntarily appearing and prosecuting his writ of error, according to the rule of practice established in similar cases by the Court of Appeals of Kentucky, in which we fully concur, he must, upon return of the caseto the court below,be considered as regularly before the court, in like manner as if he had been duly served with process to appear at the term to which the cause is returned.

The case must therefore be remanded to the Crawford Circuit Court,.to be proceeded in by that court, at the next regular term thereof, as if the defendant below was duly served with process returnable thereto.