268 CAZ4ESIN THE- SUPREME COURT• LIT l'hiE ROCK , Jan'y 1839 '.MOORR vs. ' WILLIAM' MOORE WATI(pIff; against W. W. WATKINS , . A NI) -OTHERS.. A"'.97111R N. ERROR to 'Cratiford Circuit Court: kis error to enter judgment . by default, Without service of process. And such error is not cured by, the defendant'filing' pleas:after . . entry default; without of judgment by obtaining leave . to ,do . ;so; Or , applying • 0..the court to.: set aside the jUdgMent,... • AssumpSit, by :defendants in error against plaintitrin • 6rror Writ issued January .2 6;. 1837, -,reinroab1eto . Joac. term', 1837, and served FebruarY 8,. 1838. '' ..lEteturn sigaed D.'W. Bunch, Dep'y Sh'ff; for jesSe . Miller, Sh'ff•C.'.C. Ark.' State.": .Judgrrient by default at June term, 1837,• and ,writ bf . enquiryto , next terin, which was executed, and final judgment. r endered,...11anuary : 27, , 1838. On 'the 24th jam], ary, 1838, the • defendanti filot t lies:( .. plea8, Which were undisposed. of. TAYLOR, ' for plaintiff in error,.preSented the . following points.: The judgment by . clefalilt:wis; : prettire And irregulari.unlesstho. three- days..allowed ' for pleailitit-hail.elapsed . ' Camp.. Dig. 320. 2...Every return of the Sheriff:a • . a,writ: must he 'in the.inime of the principal sheriff, either , by-himself . or . deputy; 'but it cannot be id the name Of -. the deputi . sheriff, by any •ther as . his proxy,' whether that proxy , be- the high sheriff or any other person. 3.. This is a matter pot cured by the statute of Jeofails. 4. , The caption of the declaration and mandatory .part.Of the.writ. • and 'declaration are . defective. 15. Piens appe. ar on tbe.record to have been undispOsed• of at the .term . the verdiet and jiidgment were rendered. • Rixdo, Chief justice, delivered the opinion of the court: An . ' action of assumpsit .was brought . by the present defendants, against the Plaintiff in' the Circuit Court of .Crawford . County... • : The, declaration'appears to have been filed,and the' writ' thereupon isSued on the 26th day of j anuary, 1837, returnable to the June terrnof court in the Year 1837,.bUt Cva .not • executed :.untit , htith:claY , Of • February, 1838: Judgment by:default was enterecf tt theJuneterrn, . 1837, and a writ Of . enquiry ..awarded •'• . ; .. yeturprible , to the next , tertiy,. which appears to Inwe been executed; and finil" judgmed.t thereupon rendered, on the , 27th day, ofJanuary,.1838. On the .24th day of January,.1838, an entry wi.mideof retord
OF THE STATE OF ARKANSAS. 26e, in the case, in these words; " This day came the defendant by his ritioTe 're attorney, and filed his pleas of non-assumpsit, judgment, and the statute Jan'y 1889 ■-,1P-NeTa..• of limitations," which pleas are all copied in the transcript of the MOORE record, certified to this court upon the writ of error prosecuted by the w 4- OTHERS. present plaintiff to reverse said judgment. Several errors have been assigned, which the court deems it unnecessary to notice. The judgment by default having been entered without any service of process on the defendants below, before he had entered an appearance to the action, was wholly illegal, and the plea:s by him subsequently filed, as they appear by the record, to have been filed after the judgment by default was taken, without leave, or any application to the court to set aside the judgment, were entirely irregular, and cannot be regarded as a defence to the action, or as affecting the case in any respect whatever. The court, therefore, manifestly erred in rendering judgment by default, and awarding a writ of enquiry thereupon, and also in giving the final judgment for the plaintiff below, for the damages assessed upon the writ of enquiry, without any service of process upon, or valid appearance having been entered by the defendants below, and for this error the judgment of the Circuit Court of Crawford County, must be reversed, annulled, and set aside, and the cause remanded to said Circuit Court for further proceedings to be there had therein, according to law. And in conformity with the rule established by this court, in the case of Gilbreath against Kuykendall, the case upon the return thereof to the Circuit Court, must be proceeded in as if the defendants below were duly served with a regular process returnable thereto more than thirty days before the term of said Circuit Court to which the case shall be so returned.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.