534 CASES IN TILE SUPREME COURT Swinney vs Johnson January S vs, JoIiNsoN. A writ or process in a civil snit does not, of itself, authorize the officer to execute it on Sunday, or on the 4th of July; and if executed on either of those days, the return of the officer must show that the affidavit by the statute (Dig. eh. 173, see_ 5, 6, 7,) was made and delivered to him; otherwise, his return shows no authority for the execution of any process upon the:defendant: Error to the Circuit Conrt of Yell county. The Hon. Jolin J Clendenm, Circuit Judge, presiding. Jordan for the plaintiff. Justiee Scoi -11Ai \t11='d tile opinion of the Court. This was an action of trespass, vi. et tv. mis, against three per-i.ons, upon two of whom the writ of summons was regularly served; and as to the third, who is the plaintiff in error, the sheriff retumed—"I executed the within at the county of Scott, on the 4th day of J uly, 18:55, by delivering' to tlie within named James M. Swinney a copy of the within." The two appeared to the aetion and filed pleas to the mtrits, whereupon the plaintiff below entered a nol pros as to them, and took judgment by default as to the plaintiff in error, who failed to appear—upon this, damages were assessed hy the verdict of a 3ury, and final judgment rendered accordingly. Swinney, in the mean time, at the same term, moving the Court to arrest and set aside, and bold for nought the judgment aforesaid. 1st. Because he had nevur bLull sta%ed with process. 2d. Because the notice of the pendency of the action was served upon him on the 4th day of July, 1855, without any affidavit stating that he was about to leave the country, having been first made and delivered to the
OF TUE STATE OF ARICANSAS: 5 Term, 1857: Sw‘mnev ,; Johnson officer eliar g;ed with the execution of the writ of summons, by the plaintiff or any other person for him: which motion the Court oveiruled, and Swinney brought erroi. It is enacted by the statute (cb. 173, sec's 5, 6, 7, Dig% ft 1004i that: "no person shall. on Sunday, rtr on the 4th day of July, serve or execute any writ of process, warrant or order, ex-Pitt in criminal cases, for breach of the peace, or wheri the defendant is about to leave the country." That “the service of every writ, process, warrant, or order, on said days, shall be void, aml the person serving or executing the same shall be liable to the suit of the party aggrieved as if he had done the same without any writ, process, warrant or order:" And "that if the plaintiff in my writ, process, wrirrtint order in any civil suit, or some other person for him, shall make and deliver to the officer charged with the execution of such writ, process, warrant or order, an affidavit that such defendant is about to leave the county, such officer may seive and execute eveiv such writ, piocess, warrant, or order, OE Sunday, or on the 4th day of July." By the inevitahle operation of these several provisions of our statute, the writ in itqelf, io this case, conferred no authority upon tho aPrift to execute it on the 4th day of July. as he seems to have attempted to do: For him to have had such authority, it was needful that he should have not only had the writ, but also, in comieetion therewith, the affidavit prescribed by the statute. His return shows no such affidavit, either by any refcren,c it, or by making it_ otherwise, a part af the return of his official doings. His authority * then, for executing the process on the 4th day of July in no way appears. If his authority had appeared, the law would have indulged the ordinaiy presumption in favor of his official doings: As it is, there is no foundation upon which to base any such presumption, Our statute, in the several provisioii , s. above cited, not only prohibits the service without tho pro-vcquisite of the affidavit, hut declares that ay such attempted service shall be void, and the officer liable civilitcr. as if lie hail no process at all in his
516 CASES TV THE SUERELME COURT Sainurl folor,un January hands, The design was to give the eitewn absolute imnumity from disquietude, both on the ehristian, and upon the political sabboth, from the execution of civil process upon him, unless in the expressly excepted case. And to this end the statute withholds anthority from the officei under the process, until the of fidavit shall have been first made aud delivered to him in connection with it. In such case, although the writ is flic form, the affidavit in connecthai therewith it, in effect, the substance and -life of the authority to be exerted through the instrumentality of the act. In an ordinary ease, the writ shoAA a tb d lid/m.4y of the officer, and his return "how, and iu what manner, he executed the same," (Dig, 799 see. 21, ch. 126,) but in such a case as this, under the operation of our statute, the return must go further and be in aid of the writ, or no authority to execute the process upon these prohibited days will appear in the record. Upon the face of this record, under the operation of the statute, there was no service upon the plaintiff in eiror: The judgment against him by defardt was, theiefore erroneous, and the Court below, upon his motion, ought to have arrested and held it for naught. For this error the judgment will be reversed, and the cause remanded, and the plaintiff iu error held to answer to the declaration of the plaintiff below, as if he had been regularly served with process of summons. under the established rule in such eases.
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.