386 CASES IN THE SUPREME COURT LtTTL L Rom Jrn • y 1639 IN /GRES MARTIN. TRAAC HUG1E3 against BENNETT H. MARTIN.. ERROR to Johnson . Circuit Court„ An affidavit thatthe defendant' is justly indebted to the plaintiff in the three hundred and . • sum of seventy-six dollars, and that the plaintiff verily believes that said defendant is about to rein . ove his effects out of the State; is sufficient to authorize the issuing Of 'an attachment, without inserting that the tlefendant is indebted in'a suM over fifty dollars. The parties in civil proceedings are r ieldom,.if ever, bound to adopt the precise language used in a Statitte. The service by a coroner of a writ directed to the slieriff is not ground for dismissing the suit--thongh it is matter whieh Will excuse the defendant.from .• answering. A writ directed to an officer or person Prohibited , 6y law from exectiting it9 may be abated,: and perhaPs -it might be tet aside-on motion, if the fact ap-. pear on the fitce•of the proceedings. • But a writregularly and legally issued, and directed to.the proper officer, cannot'be . avoited, or made void; by matter subsequent, or by having . a, return Osidorsed on it by an officer or person not 'authorized- :by iaw to serve it. buph an endorsement is a mere nullity, and imposes no obligatioa • on the defendant to appear, nor does it-subject him to any legal consequences as fora neiault. 'The rulein Gilbreath vs. Kuykendall renewed' This was:an action commenced by the plaintiff above; by writ' or Attachment. Thc affidavit on which writ issl'ied was that the defendant -"LS justly - in • debted to the pi.:intiff thesum 'of three-hundred and seVenty-six dollars 50-100, and that he Verily tbelieVes that the said .16.rtiii, is about to rembre his cffeetsnut of-this State." . The writ-was directed'to the Sheriff. and returned . served 'by -the Coroner. At the return tcirrri the court below dismissed . the cause, on the . de-A=!ndant's Motion, and gave judgment against the plairitiff---to-reverse viiiich he brings his writ of error. TAVIKIR, for the phtintilf in error. CritLMINS & PIKE, contra .:. - The defendant in error Contends that the decision of The court below was correct. By the general provisions . of our lawy all proccss be directed to the Slierili. Dig. p. 316,317. The coroner is adthotized to serve writs and prodess, when the office-of sheeilf is vaCant, or whenThe sheriff . party to the :suit, interestediotthe.suit,
OF THE STATE OF ARKANSAS. Z87 related to either party, or prejudiced against either party. Dig. p. 136. And when beth the ' sheriff and coroner are -disqualified, the Jau ' i 1839 %TON court is to direct the process to Elisors. Process can S on/y be serVed by the officer to whom it is directed, or EVANS argatt& his deputy. Howe's - Pr. 93, 94: and authorities referred to below. If the sheriff be disqualified, the process must be directed to the Howe's P' r. 91; Colby vs. Dillingham et al. 7 .111ass. 475; coroner. Coulson,1 Black. R. 506; Wood vs. Ross, 11 Mass. 271; Weston vs. Brice vs. Woodbury et al. 1 Pick. 362. There being in this case no showing of any kind which under the law would authorize the issuing of the writ to the coroner, this court is now bound to presume that the sheriff was neither dead, out of office or disqualified.' A service by the coroner in such case is no more , than a service by any Private person, and such miitake is fatal; for a coroner cannot serve a writ, if the sheriff or his deputy:may. Gage vs. Graffam, 11 Mass. 181; Merchants' Bank vs. Cook, 4 Pick. 405. This defect may be taken advantage of, either by ple'a in abatement, or motion to dismiss the action, if made before appearance entered. Campbell vs. Stites,M Mass. 217; Gage vs. Graffanz, ILMass. 181; Poliard et al. vs. Dwight et al. 4 Cranch, 421. There was no error therefore in sustaining the motion to dismiss. Ramo, Chief Justice, delivered the opinion of the court: The plaintiff filed in the office of the clerk of the Circuit Court of Johnson county, his declaration against the defendant in an action of debt, setting out a writing obligatory, for the sum of $365 59-100;— and therewith also filed his affidavit, Stating that Bennett H. Martin in the above declarationo mentioned, is justly indebted' to hirn in the sum of three hundred and seventy-six dollars,and ffly hUndredths ; _and that he verily believes the said Bennett H. .114'ar:in is about to remove his effects (mit of this State; which was subseribed and sWorn to by the plaintiff, before the clerk of said Circuit Court; and thereuPon sued out of the office of said clerk, a writ of attachment ag-tinst the lands, tenements, goods, chattels, moneys, credits, and effects of the defendant,, directed to the sheriff of Johnson county, but which appears to have been executed and returned by the throner, instead of the sheriff of said County. At the term to which the writ was returnable, the defendant without entering his his appearance to the action, moved the court tO quash the proceeding s had in the case for the follow l ing reasons:
388 CASES' IN ME 'SUPREME COURT LITTLE 1st. Because there is no affidavit, as required by law, to authorize Roc" the issuing of said writ of attachment. Joie), :109 ' • 2mh The writ is directed , to ' the sher . d, 'and served by the coroner "7 8 1E8 of said ceunty, withont the warrant of law; and NAETne 3rd. ' There is no valid legal service of said writ. of attachment. The court sustained this motion, dismissed the case, and gave final Judgment against the plaidtiff for costs of stilt. The plaintiff excepted to the order diStnissing the suit, and filed his bill of exceptions, which is_signed and Sealed' by the court,,and thereution the plaintiff prosecutes this writ of error to reverse said judgment. The only question presented hy - the recerd and nsSignmentof errors, is, did the court err in dismissing the suit, and giving final judgment agtdnst the plaintiff on the defeadant's motion? The affidavit verifies eve& fact required by the Statute to be stated theriin, unless the omission to insert the words, "in a sum exceeding fifty dOlhrs," as mentiot;ed in the Statute,,shall be deemed essential to its stifficiency. The hriguage pf, the Statute Under Which this proceeding is MS& tuted is that " in all cases where any crediter or creditors shall file or, caUse to be filed,, in the office of The clerk 4 the, Cireuit Coart; of any cOurity in' this Territory, a declaration Or other statment in writinp, against his,'her, or their debtor, containing a true statement of the na-tare:of his;'her, Or their deniati4 together with an affidaVit on his,, her, of their oath, or affirmation, or pa the oath, or affirmalion; of any other creditable person, _forhim; her, or them stating that the defend-antin the declaration mentioned is Justly indebted'to suCh plaintiff or plmntiff in d suira ezceedirtg the' . min-t of :fifty dollars, (which sum' 'Shall -be : specified in''Such affidavii,) and that the said' atliant verily ' believest that Such defeadant is'not a resident:of, or residing within this Territory, or that the' ordinary process of law cannot be served en hhn, or that . he is about, to remove his effects out of thii Territory; it shall be lawful for such plaiatiff Or plaintiff's to sue or conk te be su6d; out of the office of the said Clerk, - a: Writ Of affachinent,r &c. 4rk. p. 7 S. 1. Proceedings by attachment iti civil . eases are authorized by Statutory provisions, in derogation of the common law, and must in every' essential part conform te, and pursue strictly the proyisionS of the Stat. ittes, by:which theyrare authorized.' , The' affiAav#, for instance, must State that the deferidaat is )1:0.1y:indebted to .thE plaing and specify
OF THE STATE OF ARKANSAS. 249 KE the sum or amount of such ind2htcdness, and show that it exceeds the- Litrror. sum of fifty dolhrs: but where the defendant's indebtedness, and the I a' P' Y 1833' aMount theretif, are stated, as in this case, showing that the amount salut v i . n . g thereof is more thaUfifty dollars; without the preeise language of the mAserus Statute we are not aware of any prineiple of law, of reason, or of justice, upon which it ought for that reason alone, to be held insufficient. The partied in civil proceedings are seldom, if ever, bound to adopt the precise language of the Statute; therefore the affidavit in this case containing every . essential requisite tinder the Statute, is, in our opinion, sufficient. The objections to the service cf the writ, admitting the exectition, thereof to be wholly illegal, and entirely insufficient, cannot be a grOUnd for disrnissidg the suit. It is a matter which excuses the defendant from answering the action; but we are at a loss to conceiVe how it can So operate as to make void 'or voidable, a writ which,'independ. ant Of it, is good: a writ directed to an officer, or person prohibited by law from executing it, may be abated; and perhaps it might be set aside on motion, if the fact appears on the face of the proceeding's: but a writ regularly and legally iisued, and directed to the proper offieer or person, authorized by law to excecute it, cannot, in our opinion, be avoided or niade void, by matter subsequent, as by having a ruturn_ endorsed on it, by an , officer or person not authorized by law to serve it. • Such an endorsement being a mere nullity, can have no effect in law, either upon the parties, or upon the suit, it imposes no ob-ligatio n on the defendant to appear, nor does it subject him to any legal consequences, as , for a defiailt, and if he omits to appear, no valid judgment can be , given against him; conSequently it must in every view of the subject, be regarded, as a mere nullity, and the case be considered N standing in the same situation as though no effort had been made to have the process'executed. And hence in ordinary cases, when the first writ is , . not' executed, it forms the basis upon which an'afias, and if that is not served, a pluries may issue, and nothing is more coMmon in practice, than to take an alias and pluries, When the former writ is pot executed, and we presume that no one ever thought of questioning, either the legality or propriety of the practice; and yet if a Motion to diSmiss the suit upon the ground that there is no service of the Writ, or . that the execution thereof is illegal, or ihsufficient, is authorize d by law, it follows as a legitimate consequence, that no
S90 CASES IN THE SUPREME COURT LrrrLE 11OCK; alias, or pluries writ can legally issue. We are therefore of the opin-San ' .... y 180 9 ion that the court erred in dismissing the case, and giVing a final judg-nuo .t m . es ment for the costs of the suit against the plaintiff', on the motion of the IfARTIN: defendant, and for thiS error the judgment must be reversed. The case being thus disposed , Of, the necessity of expressing any opinion as to the legality or sufficiency of the execution of the writ, as the same appears in the record, is dispensed with—that question being wholly immaterial, as to any matter now involved in the further disposition of the case, to be directed by this court; inasmuch as the,defendant, by appearing here and filing his joinder to the assignment of errors, has made himself a party to the proceedings, and according to, the rule established' in the case Of Gilbreath vs. Kuylcendall, he is bound to appear, and the case upcin the return thereof to the Circuit Court, must be considered as though the defendant was duly servedi with a valid process, requiring his appearance to the action more than thirty days before the first term of the court, to which the case is remanded. Wherefore, the judgment of the Circuit Court of Johnson county, in this case given upon the defendant's motion, is hereby reversed, annulled, and set aside, with costs; and the cause is remanded to said court with directions to overrule the motion of the defendant to dismiss this,suit, and,for further proceedings, to be had therein aceording to law, and not inconsistent with this opinion.
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.