Visart v. Bush

Cockrill, C. J. This is a continuation of the case reported in 40 Ark., 124. As will be seen1 from the statement of the case then made, it is an action of ejectment,' the plaintiff’s title being based upon a purchase made in pursuance of a sale of the land in controversy in an attachment proceeding instituted before a justice of the peace. The attachment was sued out against Bush, as a non-resident, upon constructive service only. The justice’s record recited that Freeman & Johnson were appointed attorneys ad litem for the defendant, and that they accepted the appointment; it afterwards recites that they appeared as the attorneys of the defendant and filed an answer and made defense for him, which was in part successful. Upon the former appeal this court ruled that, iu the absence of a showing to the contrary, the authority of the attorneys to .appear in the case must be referred to the appointment by the justice, and as they could not, by virtue of such appointment, enter the appearance of the defendant so as to give the court juristiction of his person, the case was treated as a proceeding against a defendant summoned by constructive service only, and. reversed the judgmeut (which was then in favor of plaintiff’ below) because no bond had been filed by him before the sale of the land as in such cases is required. On the trial, after the appeal, the plaintiff offered to ■show by parol testimony that Ereeman & Johnson had been retained by Bush after their appointment by the justice, and were authorized to answer and defend for him as they had done. .The court excluded the evidence, and-treating the attachment proceeding as this court had done, gave judgment for the defendant. The evidence offered tended to explain and make certain what is not apparent from the justice’s docket. It was a presumption of fact only, raised by a prior recital of •the record, that the attorneys appeared by virtue of the .appointment- by the justice. The question of the capacity in which the attorneys appeared was not at issue before the justice, and was not adjudicated by him-"When the attorneys appear for the purpose of filing an .answer, they are described as the defendant’s attorneys without qualification., Evidence that they were in fact his attorneys did not contradict the record (Freeman on ■Judgments, sees. 274-5), and we think it is indicated in the former opinion that it would be competent to show by parol the capacity in which they acted. Justice’s records are not required to be strictly formal and great latitude is indulged in permitting the facts upon which jurisdiction is based to be shown. Their affirmative recitals of jurisdiction are only prima facie evidence at best. Jones v. Terry, 43 Ark., 230; Easton v. Bratton, 13 Tex., 30. In Jolly v. Foltz, 31 Cal., 321, under circumstances similar to those here presented, evidence aliunde the record was held competent to show that the justice had jurisdiction of the person of a defendant in an attachment proceedings the record not disclosing the fact. Vandeutzen v. Sweet, 51 N. Y., 381. It was determined on the former appeal that the bond referred to in section 4126, Mansf. Digest, is the bond required by section 5190. Now, the latter bond is required! only when the proceeding is against a defendant constructively summoned. It follows that if the justice had jurisdiction of the person of Bush, the bond was not required. It was error, therefore, to exclude the testimony offered to establish that fact. Reverse and remand for new trial.