SWINNEY V. JOHNSON. VOL. 18 Error to the Circuit Court of Yell County. TroN. JOHN J. CLENDENIN,
Circuit Judge, presiding. Jordan, for the plaintiff. SCOTT, J. This was an action of trespass, vi et armis, against three persons, upon two of whom the writ of summons was regularly served; and as to the third, who is the plaintiff in error, the sheriff returned -"I executed the within at the county of Scott, on the 4th day of July, 1855, by delivering to the withinnamed James M. Swinney a copy of the within." Tue two appeared to the action and filed pleas to the merits, 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 by the verdict of a jury, and final judgment rendered accordingly. Swinney, in the meantime, at the same term, moving the court to arrest and set aside, and hold for naught the judgment aforesaid. 1st. Because he had never been served 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 county, having been first made and delivered to the *officer charged with the eY- [*535 ecution of the writ of summons, by the plaintiff or any other person for him : which motion the court overruled, and Swinney brought error. 5341 *SWINNEY It is enacted by the statute (ch. 173, V. sec's 5, 6, 7, Dig., p. 1004), that : "no OHNSON. person shall, on Sunday, or on the 4th A writ or process in a civil suit d day of July, serve or execute any writ oes not, of ltself, authorize the officer to execute it on Sunday, of procesi; warrant or order, except in or on the 4th of July; an I if executed on either criminal cases, for breach of the peace, of those days, the return of the officer must show or when the defendant is about to leave that the affidavit required by the statute (Digest, ch. 173, sec. 5, 6, 7), was made and delivered to the county." That "the service of him; otherwise, his return shows no authority for every writ, process, warrant, or order on the execution of any process upon the deendant. said days, shall be void, and the person
JAN. TERM, 1857. serving or executing the same shall be end the statute withholds authority liable to the suit of the party aggrieved from the officer under the process, un-as if he had done the same without til the affidavit shall have been first any writ, process, warrant or order." made and delivered to him in connec-And "that if the plaintiff in any tion with it. In such case, although writ, process, warrant or order in any the writ is the form, the affidavit in con-civil suit, or some other person for hini, nection therewith is, in effect, the sub-shall make and deliver to the officer stance and life of the authority to he charged with the execution of such exerted through the instrumentality wr t, process, warrant or order, an of the act. affidavit that such defendant is about In an ordinary case, the wiit shows to leave the county, such officer may the authority of the officer, and his reserve and execute every such writ, pro-turn "how, and in what manner, he cess, warrant, or order, on Sunday, or executed the same" (Dig., p799, sec. on the 4th day of July." 21, ch. 126), but in such a case as this, By the inevitable operation of these under the operation of our statute, the several provisions of our statute, the return must go further and be iu aid of writ in itself, in this case, conferred no the writ, or no authority to execute the authority upon the sheriff to execute it process upon these prohibited days will on the 4th day of July, as he seems to appear in the recod. have attempted to do. For him to Upon the face of this record, under have had such authority, it was need-the operation of the statute, there was ful that he should have not only had no service, upon the plaintiff in error. the writ, but also, in connection there-The judgment against him by default with, the affidavit prescribed by the was, therefore erroneous, and the court statute. below, upon his motion, ought to have His return shows no such affidavit, arrested and held it for nought.' either by any reference to it, or by For this error the judgment will be making it, otherwise, a part of the re-reversed, and the cause remanded, and turn of his official doings. His author-the plaintiff in error held lo answer to ity, then, for executing the process on the declaration of the plaintiff below, the 4th day of July in no way appears. as if he had been regularly served with If his authority had appeared, the law process of summons, under the estab-would have indulged the ordinary pre-lished rule in such cases. sumption in favor of his official doings. 1. Under the code it seems that a writ may be As it is there is no foundation upon served on the ith ofJuly. Rogers v. Brooks, 30-620, which to base any such presumption. Our statute, in the several provisions above cited,t:not only prohibits the service without the prerequisite of the affidavit, but declares that any such attempted service shall be void, and the officer liable civiliter, as if he had no 536. ] process at all in his thands. The design was to give the citizen absolute immunity from disquietude, both on the Christian, and upon the political Sabbath, from the execution of civil process upon him, unless in the expressly excepted case. And to this
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.