Clark v. Grayson

Dickinson, Judge, delivered the opinion of the court: The only question is as to the legality of the judgment. The re-_ cord simply shows the motion, and that the judgment was entered in conformity to the application of the party, and appears to be predicated on the 34th section of the act regulating the proceedings before Justices of the Peace, as contained in McCampbell's and Steele’s Dig.,p. 362, which provides that “in all cases of appeal or certiorari from Justices of the Peace, by existing laws on those subjects, if the judgment of the Justice be affirmed, or judgment given on a trial upon the merits de novo, in the Circuit Court, judgment shall be given, and execution issue not only against the original defendant or defendants in the suit before such Justice, but also against his or their security or securities in the appeal bond, or bonds, to prosecute such certiorari; and the amount of such judgment with costs, shall be levied by the Sheriff or proper officer on the'estate, real or personal, of such security or securities in case the original party does not, or cannot, satisfy the said judgment. And the Sheriff, or proper officer, shall specify, in his return of the writ, how and by whom such execution shall have been satisfied; provided that the amount satisfied and paid by such security or securities shall be taken and considered a debt of record in his or their favor against any such principal debtor or debtors. And such security or securities may, as in other cases of debt of record, thereupon sue out execution against the property, real or personal, of such principal debtor or debtors.” There is no evidence that any notice, either actual or constructive, was given to Clark, or that he waived it by personal appearance. The filing of the motion was the first and only step taken previous to judgment. It was decided at last term of this court, in the case of Webb vs. Estill, that a party must have notice, either actual or constructive', before a judgment can be legally and rightfully entered against him. This doctrine we consider supported by every principle of justice, and too well established to admit of a doubt of its correctness. From the state of the case as presented,to us on the record, we are of opinion that the court below erred in permitting judgment to be entered against Clark, and therefore ought to be reversed with costs.