ARK. PRUITT V. INT. 'ORDER OF 12,_ K. & D. T. 437 PRUITT V. INTERNATIONAL ORDER OF TWELVE, KNIGHTS & DAUGHTERS OF TABOR. Opinion delivered April 23, 1923. i. -JUDGMENT—INSUFFICIENT SERVICE-REMEDY.-A court I-;aving jurisdiction of the subject-matter of an action has inherent power to determine the sufficiency of the service upon which a default judgment was rendered, and . the proper remedy to attack the judgment on the ground of insufficient service is "by motion to vacate the judgment, and not by certiorari to quash it.
438 PRUITT v. INT. ORDER OF 12, K. & D. T. [158 , JUDGMENT—RES JuDicArA. Where defendant moved to vacate a- judgment for insufficient service; and his motion was denied, he is concluded by such judgment, not having appealed therefrom. 3. CERTIORARI—LOSS OF APPEAL.—CertioraTi ought not to issue in any case where there is or has been a right of appeal, unless the right of appeal has been lost without fault of the petitioner. Appeal from Pulaski Circuit Court, Second :Division; A. F. House, Judge; reversed. • John C. Sheffield, and Sherrill & Mallory, fOr appellant. The municipal. court had jurisdiction of the sub-ject-matter of the original judgment and the right , to determine the sufficiency of the service upon appellee as defendant in the suit. Defendant was exempted by § 6117, C. & M: Digest, from the provisions of §§ 6068- 6120, and not entitled to 30 days . in which .to answer, and did not appeal from the judgment so holding. Could be summoned by service- on Insurance Commissioner. 45 Ark. 59; 71 Ark. 145; 24 Ark. 371; , 91 Ark. 141. Cannot ratify and repudiate same transaction. 47 Ark. 301 ; 47 Ark. 317. Nor contend for a different theory of the ease from that held in the trial court. 64 Ark. 253. Defendant entered appearance by filing motion to vacate judgment anyway. 63 Miss. 1 ; 74 WiS. 556; 7 Ark. 159; 143 Ark. 506; 3 Cyc. 504; 95 Ark. 302; 85 Ark. 431 ; 87 Ark. 230; 101 Ark. 124. Did 'not move with sufficient diligence had certiorari been proper remedy. 89 Ark. 604; 130 Ark. 42. Lost right of appeal by its own negligence. 37 Ark. 321; 25 Ark. 518 ; 3 Ark. 566; . 147 Ark. 581 ; § 6289, C. & M. Digest; 32 Ark. 717. Scipio A. Jones, G. W. Hendricks and J. H. Car-michael, for appell0e. Judgment by default void rendered in 21 days after service of summons on Insurance Commissioner. Sec. 6238, C. & M. Digest ; .act 462 Acts of 1917, § 17. Filing inotion to vacate judgment and appealing therein could not validate void judgment. German Investment Co. v. Westbrook, 101 Ark. 124, and Holloway v. Holloway,
ARK.] PRUITT V. INT. ORDER OF 12, K. & D. T. 85 Ark. 431, are not to the contrary. Motion to vacate not having been filed in ten days, court had no jurisdiction to hear it. Sec. 6449, C. & M. Digest ; 148 Ark. ' 22. .• The judgment being void- in its face, no delay on part of appellee would give it life. 15 R. C. L. § 146, Judgments. HUMPHREYS, J. Appellant propred a judgment on February 24, 1921, against appellee, by default, in the second division of the municipal court of Little Rock, Arkansas, which was a court of . record, fOr $300, upon a life insurance policy. The summons was served upon Bruce T. Bullion, State Insurance Commissioner, who had been given a power of attorney by said appellee to receive service of legal process in any action which might be brought against it in Arkansas. No appeal was ever prosecuted from the judgment. At a subsequent term of said court appellee filed a motion to vacate said judgment upon the ground that the summons should have' been served upon the proper official of said com-, pany, instead of said commissioner, alleging that, at the time the summons was issued and served, it was not within the class of fraternal benefit societies governed by act 462, Acts of 1917, Crawford & Moses' Digest, §§ 6068-6120 inclusive, designating said Insurance Commissioner the proper agent for service upon it. The municipal court heard and overruled the motion, and, upon appeal to the circuit court, said motion was again heard and overruled. The judgment dismissing the motion became final on the 31st day of October, 1921, and no appeal was ever prosecuted from it. Instead appellee, on the 18th day of January, 1922, sought to quash the original judgment for $300 rendered by . default on the policy,• by writ of certiorari sued out of the circuit court. Appellant interposed the defense to the petition for writ of Qertiorari that said circuit court had adjudicated the sufficiency of. the service on said motion to vacate the' original judgment. The cause was hehrd upon the tee-ord of • the municipal court brought up by the *tit of
440 PRUITT V. INT. ORDER OF 12, K. & 1). T. [158 certiorari, and the response filed thereto,.em . bracing exhibits of the proceedings on the motion to vadate the judgment aforesaid. The court sustained the petition for the writ of certiorari by quashing the default judgment rendered by the municipal court on February 4, 1921, from which is this appeal. Appellant contends that the trial court i,should have sustained his plea of res judicata, and should have denied the writ IMOD the ground that appellee failed to apply for said writ within a reasonable tithe after the judgment sought to be set aside became final. Appellee insists that the municipal court had no jurisdiction to hear and determine the motion filed by it to quas]i.the judgment, and for that reason it was not bound by the adverse adjudication to -it on said motion. The subject-matter of the original judgment was clearly within the jurisdiction of the municipal court. This being the 'case, it follows that the court had jurisdiction to determine the sufficiency of the service 'upon appellee, who was a party defendant in the suit. Courts having jurisdiction over the subject-matter of anY litigation necessarily have inherent power to determine when the parties thereto have been properly brought into court. Appellee, by petition, obtained a hearing and adjudication of the sufficiency of the service upon which the default judgment was rendered. In view of the fact that the court had jurisdiction of the subject-matter involved in the suit in which default judgment was rendered, appellee adopted, in the first instance, the proper remedy to attack the judgment on the alleged ground of insufficient service, and is therefore precluded by the judgment, not having appealed from same. A motion to vacate the judgment, and not-cer-tiorari to quash- it, was the proper reinedy. Brown & Hackwey, InP., v. Stepheuson, 157 Ark. 470. And again, appellee did not move with sufficient diligence had the proper remedy been by certiorari. Ap-pellee knew of . the pendency of the suit before judgment was rendered against it, and after the expiration
441 of the time in which to appeal appellee waited about a year before petitioning for . the writ of certiorari. This court is . committed to the doctrine that "certiorari .ought not to issue in any case when there is or has been a right of appeal, unless the right of appeal has been lost without fault of the petitioner." Payne v. McCabe, 37 Ark. 318 ; Moore v. Twner, 43 Ark. 243 ; Ew parte Pierce, 44 . Ark. '509 ; Burgett v. Apperson, 52 Ark. 213. For the error indicated the:judgment is reversed, and the cause remanded; 1Vith direction to quash the writ of certiorari.
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.