OF T14E STATE OF ARKANSAS: 339 LIMO aemt, itaiey 1938/ ,o-seqsto DYRES • vv. GEORGE DYER against GEORGE J. HATCH. CATO'S!. ERROR to Jackson Circuit Court. Where the defendant below mo l nd to abate the writ (which was a capias,j) and dismiss thecause, for the several reasons—lst, that there was no order of the Judge far the capias ; 2n4, that there was no sufficient affidavit to hold bail; and 3rtt 4 that the defendant was held to bail out of his own county : this was merely matter in abatement of the writ ; and the defendant, by pleading generally, after his motion was overruled, waived all objections to the writ, and cannot in this court assign for error the overruling of his motion. The rule would have been the same, if he had pleaded the same mattere in abatement. Where the court below, in process of the cause,. rendered judgment for the costs of the motion to abate the writ, such judgment was not warranted by latv ; yet the remedy thereorcannot be assigned for error when the case is brought here by the writ of error to the final judgment. The validity of the final judgment on the merits, is not affeeted by such an incidental judgment. Where in trespass. upon the general issue of not guilty, the jury found " for the plaintiff'," and assessed his damages, the verdict is good. Where the verdict is for one hundred and seventy-five dollars, and.the judg-inent is for " one hundred and seventy-five, the amount of his damages assessed as aforesaid," with costs, the judgment is good, and does not vary from the verdict. Where a motion for a new trial is ma ` de, " because the finding of the jury is contrary to law ; and because the damages are excessive and unrettsonable, and exceed the amount sworn to by the plaintiff in his affidavit to hold to bail;" if the evidence given on the trial is not brought before thiecourt; if it is not shown that illegal or incompetent testimony was admittedi.or legal and competent testimony excluded ; or the instructions given or refused by the court below do not appear, this court is bound to presnme that the decision of the court be/ow was correct. And this court, in such case, will presume the decision of the court below, in overruling the motion for a new, trial, to have been correct, a/though anin-sufficient reason was assigned for such decision. This was an action of trespass in the circuit court of Jackson county, by Hatch against Dyer. Before issuing the writ, Hatch made an . ail& davit before the judge of said circuit court, that he had " an actual subsisting demand against the defendant amounting to the sum of one hundred and ten dollars, and that the said defendant now lives in the state of Missouri, and is now about to leave the state of Arkansas, and that he is in danger of losing bis demand againSt him, and he believes that the said defendant ought to be held to bail, &c." Upon which, a capias ad respondendu m was issued, and the said Dyer held to bailin the sum of two hundred dollars. At the return term of the a a rrit, Dyer, by attorney, moved the court to abate the,writ, and dismiss the cause, because the judge had made no order to hold to bail, filed in
340 CASES IN 'THE SUPREME tOtIRT u rn! adcrt. clerk's office; because the affidavit to hold to bail was insufficient; and 18 : 39 „because the defendant had been held to bail in a county of which he n y ia, was not a resident, which motion was overruled by the said circuit V8. mitten, court; and the cause ordered to progress, on a statement of the clerk of said circuit court that he wa:s -6, conScieus”, that there was an order from .t , he judge directing , Jiim to isstle a writ of . capias ad res-pändendurn. -No , order.to - hold, to baif wa r s . filed nunc pro tune; and upon Said Dyer's motion to, abate tlie vvrit, &C,,.the said circuit court rendered' judgment formally against him for the costs-of such motion. .4.; . plea . *as then interposed, a trial.had, and judgment fina1.rendered against Dyer. , FOWLER, for plaintiff in error:, It is contended in behalf 'of the ' plaintiff in ` error, that .pleading over in th _ e case could ' not cure a proceeding, which is void in its inception, and irregular throughout lBy a statute /aw now in force, no writ of capias ad respondendurni can be legally issued in such a case as this, unlesS upon a "proper affidavit or affirmation, it shall appear proper" to the judge that "the defendant be held to bail," then the ' judge shall make an order, which shall be filed in the clerk's office before the writ issues. Vide Pope, Steele, and MeCampbell's Dig., p. 316, sec. 10. The affidavit, it is believed, is not-substantially sufficient, being applicable to a case in contract rather than in tort; :.md if sufficient, no order appears by the . record and proceedings to have been filed:in the clerk's office.. This was attempted to be supplied by a statemeat of the clerk that he had been directed to issue a eapias, which fir.11s far short of showing that a proper order ever had been filed. , If the defect could have:been supplied at all, it could only be done by filing an order nunc pro tunc:' and such art mud have been predicated on some memorandum in writing preserved by the clerk to amend or file the order by, and not supplied by a verbal statement alone, based upon the frail aaemory of the clerk or any other person. . It is further insisted that Dyer could not legally be held to bail in the County of Jackson, uPOn any affidavit, however strong; and that any order for that purpose, or any writ issued in , pursuance thereof, Would be not only ' voidable but void; and % consequently any judgment rendered thereon must be erroneou.4: No person shall he held to bail in a county in which :he does not reside. Vide Pope, Steele; and Mc-Campbell, p. 318, sec. 12.
OF_THE STATE . OF ARKANSAS. 341 It is also believed'M be a general rule, to whicb the forthal judgment i;vr . rtz ROCK.. for costs on the inotion to abate the V; iiit in thiS case is not .an excep. Jan' y tose tion, thai but one judgment Can be rendered in any One case; and that DYE& vs, to enter a formal judgment for costs on any motion or interlocutory RATeis. order in the,progress of a cause, is error, and cannot be enforced by execution; a rule, and attachment being the ()air legal mode of collecting such costs. Vide 1 Pirt. Dig. 194, 198; 2 Bibb.:Rep.243;1 Bibb. Rep. 555; 4 Littell . Rep. 234. It is also submitted to the consideratiOn of the court; (withotit expressing a belief in the proposition,) whether the verdict be • goOd unless it had expressly found the defendan . t belo . w " guilty" &c. " If So, the verdict of the jury is erroneous. The plaintiff in error . also insists that the jtidgrkient 'given by die court below whollY varies from, and is unauthotized by the verdict; being for an amount wholly different froth that specified in the Verdict. It is also contended that thecoutt below eried in oVerruling Dyer's motio . n for a new trial, because it was not sworn to, or supported by affidavit. , Dyer insists that no affidavit was necessary. WALKER, contra: " The numerous' errors amigned in this case; Present but two substantial points. First, did the circuit court err in overruling the defendant's motion to dismiss the suit? Second, is the verdict of the jary sufficiently certain? The affidavit of the'defendant Complies Vvith the statute. • See p. 316, Sec. 10. By the statute the judge io grants the order judges of the sufficieriey of the affidavit; arid if it does not; or if the judges be adjudged insufficient, the same act ptovides that the • defend-• ant shall be discharged from bail; entei- his coMmon appearance; and that the suit shall progress. And if the defendant be held to bail in a cómity in which he does not reside, by the same statute sec; 12, it is prOvided, that although the defendant be discharged from bail, the suit shall progress as if no bail was required.' *In this case, however, it is contended for defendant that the affidavit of the clerk, "thai such order had been . filed,"snpplie s the place of the order itself. The lost paper, (if On file) wonld but be evidence that the law had been complied. • If the order' had been filed nunc pro tune, it would but be matter of *form; the affidavit of the clerk alOne gives evidence of the pre-existence of the cirde. It is furthei contended by the defendant, that the defendant in the circuit court by pleading, waived his right *to contest the
342 CASES IN THEISUPREME COURT m n r o r m zx sufficiency of 'the writ or the decisions thereof. The writ has per- jikn'Y 1839 formed its office; the defendant admitted himself in court by plealing■ nv vs E . s to the action, and cannot go back to enquire whether he travelled a nAa-cn. legal highway in getting there. See I Bibb. p. 473. It is assigned for error that the eircuit court gave judgment , fo c4sts upon a motion in the progress of the suit. The judgment on that motion is no more a final judgment than judgment for costs'of continuance or amendments. There is no error in this respect, but if there had been, no exception was taken , to it in the court below, and this court for that cause, will not iniestigate it. The verdict is substantially a good verdict; the issue was 44 not guilty." The verdict found for the plaintiff and assessed his damages to $—." What is understood by "finding for the plaintiff?" Most clearly, the issue. See 2 Bibb. 178; 1 Bibb. 251. There is no variance hi amount between the verdict and judgment. The error for that came resuscitates the record. RINGO, Chief Justice, delivered the opinion of the court: This is an action of trespass vi et armis, instituted by Hatch against Dyer, in the circuit court of Jackson county. The plaintiff below filed his declaration and affidavit, and sued out a capias ad responden-durn thereon against the defendant, Dyer ; at the term to which the writ was returnable, the defendant moved the ' court to abate the writ and clfseniss the suit, upon the following grounds: First, that there is no order by the judge for the capias ad responden-dum. Second, that there is not a sufficient and proper affidavit. Third, that the defendant was held to bail out of the county where he resides; and Fourth, that the whole proceedings are irregular, illegal, informal, and insufficient. While this motion was pending, the plaintiff filed am affidavit with the clerk of the circuit caurt, in relation to the order for tail, and thereupon obtained a rule on the clerk to bring into court the judge's order for a capias ad respondendum filed in this case, to which the clerk, by his affidavit filed, answered that he had Made diligent search for the order specified in the above rule, and that it could not be found in his office, and he was of opinion that it bad been Dost Or destroyed; whereupon the court overruled the motion to abate 'the writ, and dismiss the suit, and ordered the parties to proceed in the cnuse, and the defendant excepted to these opinions and ordersof the 4urt, and filed his bill of exceptiens, which is made a part of the record,
O TFIE STATE OF ARKANSAS. 343 and then filed his plea of not guilty, to which the plaintiff joined issue, 'Frit and a jury *as sworn to try the issue, and found a verdict for the plain- "D'Y 1839 tiff, upon wlich judgment was rendered. The defendant then moved DYE tu R f the court for a new trial, which being overruled, he has brought his aims. case before this court, by writ of error to reverse said judgment. There is an assignment of errors andjoinder. The matters relied upon as stated in the first five assignments of error, are to the following effect: First, that the affidavit to hold to bail was wholly insufficient. Second, that there was no order of any judge for bail filed in the clerk's office. Third, that the court overruled the defendant's motion to abate the writ and dismiss the suit. Fourth, that the court received the affidavit of the clerk to supply a fatal defect in the record, of the existence whereof there was no memorandum in writing. Fifth, that the court orderedsthe parties to proceed in the case, without any original order, or any order nunc pro tunc, of any judge for bail, being on file in the clerk's office. The several matters presented by these assignments, refer to the same subject, that is, to the validity of the writ, and the propriety of issuing it, and _raise but a single question for the consideration of this court; in disposing of which, the nature and effect of the motion to abate the writ and dismiss the suit, upon the grounds set forth in the motion,, must be first considered and decided. Matters of fact, the non-existence of which was asserted by the defendant, and denied by the plaintiff, as appears by the record, formetd no inconsiderable part of the case, as presented by the motion upon which the court was called to decide. Their effect upon the suit, if admitted or proven', as stated in the motion, would be to abate the writ, or discharge the bail, or both, and nothing more ; they are, therefore, strictly matters in abatement of the writ, of which the defendant had a legal right to aVail himself, in any manner authorized by law: but whether the law will permit a defendant to have ttle same advantage of them on motion, that he could have by a regular and formal plea on oath, is a question not necessarily to be decided in this case, and therefore, we express no opinion upon it; yet considering them as matters in abatement of the writ only, and allowing them the only effect in law which they could have if shown by a formal plea, (and they certainly are not entitled to a more. favorable consideration,) they bunt, upon well settled legal principles, be deemed to have been waived by the defendant hitrisel4 by subsequently pleading the general issue in bar of the action;
344 CASES IN . :THE SUPIEWME COUAT LITTLE ROCK, for if be relied upon them as,a defence, he .was.bound by law to have Ailey 1839 rested.his case upon the .decision against him on the II:lotion; and he DY En was not akliberty to put the plaintifCto,the bazard and expense of con-vs. BATCH. testing:and fitigating the . rnatter:with -him, in a trial upon the. merits, and after being defeated,upon the; trial, to return_to,, and base himself upon a position, which he had previously -.voluntarily, abandoned- as nntenable.. - Upon this point,. Co. , Litt. 303, a; Ld. Raym. 970;, Longueville vs.:Thistlewortlz,L,Tidd, 680, 8 edit. ; Bac. Rb. P1. 4-c. (.1); Stephen's Pleading; 477; and 1, Ckitty Pl. 425, are authorities full and conelusive; and the rule is believed to be as old as the science of pleading itself, as regulated:by the common law. It is a. rule founded on reason, and . in its practical, operation is,attended with many. beneficial results; but . if there could be any doubt, as to the Character of the defence made by the defendant's:motion to abate the writ, they must be dispelled by reference to the statute of 1807, Ark. Dig. p., 316, 5, 10; which prescribes that the original process in all actions of trespass, shal1be a writ of ,summons ; but also provides, that upon proper affidavit, or affirmation, any judge may, if it shall appear to him proper that the defendant be held to bail in any such . case, make an order, whereupon a capias ad respondendum may. issue, such order being filed in'the clerk's office, and declares that if the plaintiff shall in . any such case, issue any other ro whereby the defendant may be held to bail, the co a a ate the.writ, and allow the defendant his . costs and four dollars, to be paid by him or them who procured such writ; and also provides further, that the defendant may appeal from the order Of the judge, to the . court; • and if the court shall overrule the judge's order, the bail bond shall be cancelled, and the defendant's appearaace accepted; and the same statute, .drk. Dig.,p. .318, sec. 12, centains this proviso, ."that in civil cases, no person shall be held to bail in a district (county) in which he does not reside; and if any person shall be arrested and imprisoned or held to bail in .a civil case in a district (county) in which he is not an inhabitant, he, .or she may be discharged.from his, or her imprisonment, , or bail; and the suit may progress as if bail was not required." The object and intention of these provisions, are so obviously plain, as not, to adinit.of a doubt; they ern-. brace , eyery ground : taken in the motion, and show conclusively, that they are,'collcetively, platters in abatement of the- writ, only, and some of them can only be resorted to, to : discharge the,bail, leaving the suit to progress, as if bail,was not required.
DV THE STATE OF ARKANSAS. 345 But suppose the objections here made in the motion, had been em-ToTcn ic,a bodied in, and presented by a regular and formal plea in abatement of jan'y 1839 the writ; to which the plaintiff had demurred, and the judgment of the r-tar court had been given for him on the demurrer, and a respondeat ouster 11 AvT8 C-had been awarded, as it must have been, and the defendant had after= wards pled the general issue in bar of the action, as he has done in this case, up ‘c . 7n— ibe overruling of his motion, could any one insist for moment, that he could afterwards takc advantage of any error in the jUdgment pronounced upon his plea? Certainly not. And the reason iS, that by electingto plead over, instead of abiding by his first defence, he shall be considered as having acquiesced in, and admitted the propriety and justice of the decision against him, or waived any legal objeetion which he may. have had thereto. And we do not perceive, as before remarked, any reason why the rule should not apply to the like defence, when it is made by motion, as in this case; we are, therefore, of opinion, that the facts assigned as error, in the first five specifications in the assignment of errors, were waived by the defendant below, by pleading over, and therefore, they are not matters for which error will lie to reverse the final judgrnent in this cause. And therefore, wd express no opinion as to their legality or sufficiency. The sixth assignment is, that the court erred in rendering judgment for the costs Of the motion to abate the writ against the plaintiff iii error. The practice of entering up a final judgment for costs, upon the ° decision of incidental questions, or motions in the progress of a suit, is certainly not warranted by law, and is in itself improper, as subjecting the party against whom it is rendered, to an additional charge for entering up the judgment and issuing execUtien thereon, as well as the fees of the officer collecting the same on exeCution. Besides this, it may, perhaps, enable the party 'against whom it is rendered, to prosecute a writ of error to reverse it, thereby creating a foundation for an unnecessary and vexatious increase of litigation, contrary to every object and policy of the law; but notwithstanding this we are clearly of the opinion that thii incidental judgment is net brought before us for adjudication, or revision, by the present writ of error, and that it is not a matter which can be assigned as error in the judgment now before us. The present writ of error extends only to the judgment given on the final trial of the case, the validity of which is not in any wise affected by the incidental judgment for costs, on the motion. The seventh assignment questions the sufficiency of the verdict, because it
346 CASES IN THE SUPREME COURT 747 KI . P ' doesmot expressly find the defendant (Dyer) guilty, in manner arta fotra Jawy 1839 aq charged in the declaration. DYER The verdict is in these words, " we the jury find for the plaintiff 134: an SAT= assess his damages at one hundred and-seventy-five dollars." The issue was simply upon the plea of not guilt . y, and the general rule is, the verdict must respond to the issue joined, and find as to every fact thereby put in issue, but as much certainty is not requiredin a general verdict, as is-required in the pleadings, and if the court can collect the matters in issue from the verdict, it is suffident, and although informal, it may be moulded . into proper form by the:court. The cases of Hawks vs. Crofton, 2 Burr, 698; and Woolford et al. vs. libel, I Bibb. 247, arc in point. In both cases the action was trespass, assault . and battery, and the general issue was plead with special pleas in justification, and the verdict found-the defendant guilty, and .assesSed damages, but;-withoet any notice of the special pleas-of justification; and the verdict-in each case, though objected to for that cause, was held sufficient, upon the ground that the fact of guilt being 'found, and the damages , assessed, r:egatived the justificittion,.and the issue upon these pleas muSt therefore, be considered as ernbraced in theteneral finding by the jury. The objection there was more forcible than kis in the present case; for here there is but a single issne, which the jury was swore to try,„and the defendant's guilt is the only -fact directly in issue; the plaintiff affirms his guilt, and the defendant denies it; and upon this issue the.jury expressly finds for the plaintiff. What do they find for the plaintiff? . Certainly -it is the issues for there is nothing .else before thern; this they were'sworp to try, and the law 'will not presuine thein guilty of doing a meTe idle act, contrary to their sWorn duty,, and solenm obligation; when they hadThus determined the issue against the defendant, by finding him guilty of the -trespass laid to his -charge, they'proCeeded to assess the ,plaintiff's damages-sustained by freaSon thereof; the Verdict is, therefore, sufficient in law, to enable the court to,collect and understand the meaning-of the jury, and to pit-licitince-a proper, valid, and legal judgment upon the premises. ' The eighthspecification in the assignment-of-errors, asserts that the judgment-of the-court is given for a-sum different from that found by the -verdict of the . jury, and is ,therefore wh011y unauthorized by the erdiet. The, verdiet is for one hundred and seventy-five-dollars damages; and the judgment -is, that the plaintifi'have and recover of and from the
OF THE. STATE OF ARKANSAS: 347 defendant, the sum of one hundred abd seventy-five, the ameuet-of his IR ITOTAI damages assessed as aforcsaid,".togethe r with all costs, &c.; omitting ,I WY 1839 the word dollars; it appears of record in the preceding part of the • rate same entry, that his damage . was assessed by the jury, and the amount Ifil , f ;:glie thereof so assessed, is clearly set out; the judgment refers to " the amount of his damages assessed as aforesaid," 'and excluding therefrom the whole expression of " the sum of one hundred and seventy-five," reads thus, "that the pla intlff have and recover of and from the defendant the amount of his damage assessed as aforesaid," which is sufficiently certain, for no one can misapprehend the amount for . .which the judgment is given ; and being for the sum stated in the verdict, it is of course. supported by the verdict. The ninth and last matter . specified in the assignment of errors, ques-tiOnethe decision of the court in overruling:the defendant's motion for a new trial. This motion was predicated upon two grounds. First, that the find-ingpf the jury is contrary to law; and Second;that the damages are excessive and unreasonable, and exceed the 'amount'sworn to. The evidence given on the trial does not appear in the record, by bill .0f exceptions, or otherwise; nor is it shown that illegal, or incompetent testimony was admitted, or competent legal evidence excluded on .the trial; or what ibstructions, if any, were given or refused by the court; therefore, we are bound by every principle of right and justice, to presume that the decision of the court ,was right, and that a new trial ought,. to have been refused. If the defendant was dissatisfied with the decision, and desired the action of the Supreme Court upon it, he should have excepted to the decisim of the court when it was given, and embodied the whole of the facts and evidence in his bill of exceptions, and thereby made thein a part of the record, so that this court, seeing them, could determine• thereupon whether the court did or did not err, in deciding: against the motion. This he entirely failed to do, and his case must be governed by the legal presumption, that every decision of the court is right until the contrary thereof be shown,. either by some fact in the record, or other matter of which the court is bound to take . judicial notice; but neither the fact that the damage found by the verdict exceeds the sum stated in the piaintin r.ffidavit for bail, or the insufficient reason assigned by the judge for overruling the motion, shows the decision to be wrong; the former is wholly immaterial, and the latter.
348 CASES IN THE SUPREME COURT LITTLE ROCK, can have no influence whatever upon the question; for the decision an'y 1 9 39 may be strictly and legally right, and the reason assigned by the court DYER entirely insufficient. w3. imrco, Therefore, it is the opinion of this court, that there is no error in the judgment of the circuit court of Jackson county, given in this case, and _the same ought to be, and is hereby affirmed with costs.
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.