Nelson v. Freeman

McCulloch, C. J. This is a proceeding instituted by appellant in the circuit court on certiorari to quash the judgment of a justice of the peace in favor of appellee. The circuit court refused to quash the judgment and an appeal has been prosecuted from that order. The proceedings before the justice of the peace were brought up to the circuit court on the return of the writ, and it appears from the face of the record made by the justice of the peace that appellee’s action against appellant was begun on October 31, 1917, for the recovery of judgment on a promissory note for $25 with accrued interest, and the .summons returnable on November 6th, was duly issued and delivered to the sheriff of the county for service. On the return day of the writ appellant failed to appear, and judgment by default was rendered against him in favor of appellee for recovery of the debt, interest and cost. The original process, which is brought up in the record, shows the return of the sheriff in the following form: “State of Arkansas County of Logan, Shoal Creek Township. “This writ which came to hand on the 31st day of October, 1917, have this............day of ........................ 190......duly served by delivering a true copy hereof to the premises of O. M. Nelson.” The record of the justice of the peace shows that on November 21, 1917, appellant, appeared before that court in person and by attorney, and filed a motion to quash the judgment and the execution issued thereon for want of proper service- of summons, and that on the hearing of the motion the court found that there had been sufficient service and overruled the motion. The writ of certiorari in the present proceeding was applied for and issued on November 28, 1917. The case was heard below on the record of the justice of.the peace, and an agreed statement of facts concerning the method in which the process issued by the justice of the peace was served. It is shown in the agreed statement of facts that the sheriff left a copy of the writ with a neighbor of appellant who later delivered the same to appellant, and that on a still later date, five days before the return date, the sheriff met appellant on the street- at the county site of the county and informed appellant of the fact that the summons had been left with one of appellant’s neighbors and further “informed defendant of the case, that it was before P. A. Newman, J. P. Shoal Creek Township, and set for November 6,1917.” There is no conclusive presumption of regularity attending the judgments of justices of the peace and all jurisdictional facts must sufficiently appear; otherwise, such judgments are void. Levy v. Ferguson Lumber Co., 51 Ark. 317. Again, it has been said that the records of justices of the peace “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.” Visart v. Bush, 46 Ark. 153. The statute prescribes the following method of service of process issued by a justice of the peace: ‘ ‘ The service of process shall be by delivering to the defendant a copy of the summons, and if he refuses to receive it, the offer of it to him shall be a sufficient service; or by leaving a copy of such summons at the usual place of abode of the defendant, with some person who is a member of his family over the age of fifteen years; or by reading it to and in the presence of the defendant.” Kirby’s Digest, Sec. 4569. The return of the sheriff on the process shows that it was served by leaving a copy thereof at the premises of the defendant. That was not sufficient service, as the statute requires that a copy must be left “at the usual place of abode of the defendant, with some person who is a member of his family over the age of fifteen years.” The delivery of the copy by a neighbor with whom it was left was, of course, not sufficient. It is argued that the statement made by the sheriff to appellant concerning the writ of summons was sufficient service under the statute. According to the agreed statement of facts, the sheriff met appellant on the street and told him about the outstanding writ and informed him of the pendency of the action and the return date. The statute permits service either by delivery of a copy to the defendant or by offering a copy where delivery is refused, or “by reading it to and in the presence of the defendant.” It is not sufficient merely to inform the defendant of the contents of the writ. Where a copy is neither offered nor delivered, it must be actually read to the defendant in order to constitute valid service under the statute. We are of the opinion, however, that appellant is barred from the remedynow sought by certiorari to quash the judgment on account of his appearance before the justice of the peace for the purpose of quashing the judgment, and his failure to appeal from the judgment of that court refusing to do so. It will be noted that tbe appearance before tbe justice of tbe peace to quash the judgment was within thirty days after the rendition of the judgment. That fact may not be important in determining the finality of the judgment of the justice, but it is worthy of mention that it was within the time allowed by the statute for an appeal to the circuit court. A justice of the peace has jurisdiction to entertain a motion to quash a judgment on account of insufficient service. Gates v. Bennett, 33 Ark. 475; Knight v. Creswell, 82 Ark. 330. The remedy by certiorari was also open to him, but he elected to appear before the justice of the peace and the judgment on his motion is conclusive. He could not submit himself to a court having jurisdiction to render relief without binding himself by that election, and his failure to appeal from the adverse judgment bars him from seeking other relief which he otherwise might have sought. Ederheimer v. Carson Dry Goods Co., 105 Ark. 488. The principle announced in the case just cited is, we think, conclusive of this question. In that case it was a suit on a foreign judgment. The defendant had appeared before the foreign court and moved to quash the service and failed to appeal from the adverse decision of that question. In disposing of the matter here we said: “Appellee, having elected to submit the issue as to whether the circuit court of Missouri had jurisdiction of its person to render the judgment sued on herein, is bound by the judgment of that court on that issue, so long as same stands unreversed by the courts of Missouri.” In that case the motion was to quash the service before judgment, but the principle announced is the same as involved an this case. It is not a question of waiver of process by appearance, but it is one as to the finality of the decision of a question of a court which had the jurisdiction to hear and determine that question. Appellant appeared before the justice of the peace who had jurisdiction to determine whether or not there had been proper service in the case, and the decision of that matter by the justice was conclusive. The decision of the Missouri court which was involved in the case of Ederheimer v. Carson Dry Goods Company, supra, was by a court of superior jurisdiction in that State, and the question of jurisdiction would have been open for inquiry when suit was brought in this State upon the judgment rendered there if it had not already been expressly decided. But we held that, even though the defendant appeared in the Missouri court for the sole purpose of quashing the service, and not for any other purpose, an adverse decision, unappealed from, was conclusive in a suit here to enforce the judgment. The judgment of the circuit court in refusing to quash the judgment of the justice of the peace was correct for the further reason that the petition for certiorari does not set forth any defense to the original action in which the judgment was rendered. Gates v. Hayes, 69 Ark. 518. We conclude, therefore, that the decision of the circuit court was correct, and the judgment is affirmed.