Merriman v. Sarlo

Hughes, J., (after stating the facts.) The jurisdiction of the justice of the peace to issue an attachment and have the constable levy the same on real estate, and to transmit his judgment to the circuit court to be there enforced, is fully provided for by sections 4421-4423, Sand. & H. Dig. The constitutionality of these provisions has been settled in Bush v. Visant, 40 Ark. 129. The removal of the disabilities generally of a minor by a judgment of the circuit court authorizing the minor to transact business “in general,” and providing that acts done by the minor “shall have the same force and effect in law and equity as if done by a-person of full age,” as provided by the statute (sec. 1119 of Mansfield’s Digest), authorizes the minor to sue or defend a suit without the appointment of a guardian ad litem. Authority of justice of the peace to issue attachments. Necessity for bond. When lien attaches» The latter clause of said section 1119 provides “that letters testamentary, of administration, or guardianship, may be granted to any such person,” etc. Surely, if a minor, whose disabilities have been removed, can act as executor, administrator, or guardian for another, he ought to be competent to act for himself in a suit at law, without the appointment of a guardian ad litem to conduct the suit or defense for him, and we think he may lawfully do so, under the statute, and that he is bound by his action or his failure to act. The order removing the disabilities of Blittersdorf in this case provides “that the disabilities of said petitioner be and the same are hereby removed, and all of his acts done and contracts made shall have the same force and effect in law or equity as though done by a person of full age.” We do not agree with the appellee in his contention that the act which authorizes the justice of the peace to issue attachments applies only in case the debtor is a non-resident. The act is not so limited. Section 4422, Sand. & H. Dig., provides for a “bond to the defendant in the manner now provided by law.” But the statute only prescribes a bond in case the defendant is non-resident. Sub-division 2, sec. 5877, Sand. & H. Dig. The original attachment bond was all that .was required in this case. The attachment bound the property of the defendant from the time it came to the hands of the constable. The law fixed the lien, and not the justice of the peace. Sec. 341, Sand. & H. Dig. Reversed, and remanded for further proceedings not inconsistent with this opinion.