Milor v. Farrelly

Bowen, J. Under the provisions of chapter 97, of Gould’s Digest, Charles G. Farrelly, as administrator of the_ estate of Fred. Heinz, deceased, moved the circuit court of Pulaski county, on the 23d of November, A. D. 1867, for- a summary judgment against Yolney Y. Milor, as late sheriff of Sebastian county, and Daniel McCoy, P. F. Chapman, Charles Milor and Edward Czarinkow, securities on his official bond, for failure on the part of Milor, as sheriff of Sebastian county, to pay over money, collected by him on two certain executions in favor of said Farrelly, as administrator of said Heinz, deceased, amounting in the aggregate to two hundred and seventy-five dollars and forty cents. Said executions were issued from the office of the clerk of the circuit court of Pulaski county, and were directed to the sheriff of - Sebastian county, returnable to the March term, 1866, of said court. A notice to the said defendants, stating that said administrator would, for failure on the part of Milor to pay over the money collected by him on said executions, move the circuit court of Pulaski county, on the 23d day of November, 1867, for a summary judgment against them, it was, on the 5th day of November, 1867, served on the defendant, P. F. Chapman, by leaving a copy at his usual place of abode, with a member of his family, a white person over the age of fifteen years, and on the other defendants on the 6th day of November, 1867, by reading the same in their presence and hearing, at Sebastian county, Arkansas. The chapter of the Digest, under which these proceedings were instituted, requires notice in writing to the defendants. 'This requirement is not fulfilled by service like that in this ■case. Each defendant against whom judgment is rendered must have had delivered to him, in person, a notice in writing. See the ease of Williams v. Bunnell, 4 Ark., 136; also, the case of Hart v. Gray, 3 Sumner, 339. This rule is sustained by Judge Story, in the last cited case, by reasons which we deem unanswerable. ’ Notwithstanding the judgment entry herein shows that the defendants had “three days’ notice, in writing, according to the statute in such case made and provided,” this statement is not sustained by the sheriff’s return, which, on the contrary, shows that the defendants did not receive the notice in writing contemplated by section 1 of chapter 97.' The summary remedy created by the statute, being in derogation of the common law, aud penal in its nature, must be strictly pursued. The notice in writing, required, not only performed the duty of the summons, but, also, that of the declaration, and must, in the language of this statute, contain a succinct statement of the cause for, and the court before, which the motion will be made, and should be directed to the sheriff and his securities, designating him and them as such. Defects in the substance of the notice are not cured by a motion containing all the necessary averments, simply because the statute requires these statements to be contained in the notice, and does not require the motion to set out any thing. Indeed, we see no reason why the motion need be in writing, at all, but may be made orally, for a judgment, for the causes set out in the notice, which, after having performed its office as a summons, takes the place occupied by the declaration in ordinary cases. The cases in which judgment may be rendered, on motion, are plainly given in section 1, of chapter 97. The second case enumerated therein, under which the present proceeding was had, is as follows: “ For failing to pay over money collected upon an execution on demand of the plaintiff, his agent or attorney, for the amount so collected, and ten per centum per month damages from' the time such demand was made.” The fact that the law only requires, in the notice, a succinct statement of the cause for which the 'motion will be made, does not dispense with the statement of every fact fixed by the statute as a part of the. cause for which judgment will be rendered, but simply means that the statement may be short and concise. and. as the notice fulfills the office of both summons and declaration, it should, in addition to the other facts, set out the demand. If the notice thus sets out every necessary fact, and there be an appearance on the part of the defendants, and issue made up by a denial of the facts contained in the notice, a finding of the issues for the plaintiff would make the necessary facts appear affirmatively of record, and the judgment need only show the jurisdiction, and give the conclusion of the law from the premises. But, if there be no appearance, the court, in its entry of judgment, must show, not only the jurisdiction, but the facts constituting the defendant’s liability, unless these facts otherwise appear affirmatively of record, as in the ease of Boudurant v. Woods, which we find on page 547,1 Ala., where the court declared that it found “that the facts alleged in the notice had been fully proved.” This was held sufficient; the notice being a part of the record, and containing all the requirements of the statute. In regard to what the judgment should show, see 8 Porter, 372; 19 Ala., 373; and Barry v. Patterson, 3 Humphries, 314. From what we have said, it must not be inferred that the evidence should appear affirmatively of record, but only the conclusions arrived at therefrom. This brings us to the consideration of another point: The plaintiffs in error claim that, as Milor was sheriff of Sebastian county, he and his securities were not liable to amercement in the circuit court of Pulaski county. This point seems to be well taken. The law under which these proceedings were had, is silent as to where the motion should be made, and •as nothing can be taken by intendment, and as the general law of the State provides that suits be commenced in the county where the defendant resides, or may be found, and as the remedy created is against the securities, as well as the sheriff, and as only three days’ notice is required, we can not place a construction upon the statute which -would require parties living-in one part of the State, to appear before the circuit court of a distant county upon only three days’ notice, especially when such a construction can only be made by supplying by intendment what the statute does not express. Pike v. Lytle, 6 Ark., 212; State Bank v. Terry, et al., 13 Ark., 390; Cross v. Haldman, id., 202; 1 J. J. Marshall, 477; 6 Monroe, 323. One further question remains to be considered: The law under which the circuit court of Pulaski county was held, although not being acted under on the 4th of March, 1861,, was, nevertheless, a law in force, in the sense used in the Constitution of 1864, having been passed by the Legislature, and approved by the G-overnor, in January, 1861; and notwithstanding the fact that the previous law, fixing the time of holding such circuit court, was still in operation, it expired by limitation of the law in existence at the time. The change in the time of holding the circuit court of Pulaski county was the result of laws in force on the 4th of March, 1861, and it was clearly not the intention of the framers of the Constitution of 1864, to change the law fixing the time of holding a circuit court, but to wipe out' all that transpired after the meeting of the secession convention on the 4th of March, 1861. In view of the whole record, then, we have concluded that, although the judgment of a circuit court is only voidable by reason of defective service, the judgment in this case is absolutely void, as the defendants were not within the territorial jurisdiction of Pulaski circuit court, and that such court could not, under the circumstances, adjudicate the matter in controversy as between these parties. • The writ of error is dismissed. Chief Justice 'Wilshirb, and Associate Justice McClure, dissenting.