Estill v. Bailey

Lacy, Judge, delivered the opinion of the Court: ■ This case was an action of debt brought by Benjamin Bailey against Samuel Estill in the Chicot Circuit Court. The defendant by his attorney moved the court to dismiss the suit; but the motion was overruled and judgment entered up against him by default. To reverse the judgment, he has sued out his writ of error, and now prosecutes it in this coart. There is but one point raised by the record or the assignment of error; and that has been fully decided in the case of Gilbreath vs. Kuykendall. See 1 Pike's Rep. 50, 51, 2, 3. The writ bears date on the 20th of February, 1837, and it runs in the name of the United States of America. It was issued since the admission of Arkansas into the Union; and of course should have run in the name of the State; for. by the 14th Section of article VI. of the Constitution, it is declared that “ all writs and other process shall run in the name of the State of Arkansas.” And as this writ docs not, it is therefore null and void, and the judgment below must be reversed with costs. But as the plaintiff in error has voluntarily made himself a party to the suit by appearing and prosecuting this writ; he must now be considered as regularly before the court below as if he had been duly served with a valid process to appear at the term to which the cause was returnable. The case must therefore be remanded to the Chicot Circuit Court, to be proceeded therein agreeably to this opinion.