110 PooL vs. Loomis. [5 PcioL vs. Loonts. An officer has no right to execute a writ of replevin, until he has received the bond required to be executed by the plaintiff . , or some person for hhn, which fact the return must show, or it is defective. It is ajso defective if it does not show an execution of the writ by reading to the defendant, or delivering him a copy. or leaving a copy at his usual place of abode. with some white person of his family over fifteen years of age. It must also set forth with certainty the contents of the notice required to be delivered to or left for him, and state that it was signed by himself. Requisites of a good return in replevin: But any defect in the return can be no ground for dismissing the suit on motion. lf a writ of replevin is not properly executed, the clerk can issue an alias without any order of the Court. Nor can the Court dismisS the plainiff's case, on account of a defect in the return. because the plaintiff "refuses and omits" to amend the return. "When a defendant has not appeared to the action, or become legally a party to the suit:, no valid judgment can be pronounced. either for • or against him, not even cif non-suit or for costs. 'When a cause has been' argued and submitted In this Court, it is. until the decision. properly ender advisement: and, if either party die before final judgment, the judgment may be rendered in the names of the original parties. as of a day previous to such death : or if the death of either party be suggested 'and proven: a -nune pre hme order may be made, to extend back to a day after the submis-:sion and before such death. 'Tins was an action of replevin, determined in the Phillips Circuit 'Court ; in September, 4342 ; before the Hon. JOHN C. P. TOLLESON, one of the circuit judes. William B. Pool sued Warner P. Loomis, in replevin in the cepit, for a negro girl. On. the writ issued. in the • ease, the officer made the following return: "By virtue of this writ, to me directed, I did, on the first day of November, 1812, at Phillips
Poor, vs. LoomIs. 111 county, replevin the property within described, found in the possession of the within named Warner P. Loomis, to wit: one negro girl, of black complexion, about eight years of age, and called by the name of Celia; whereupon, I ascertained the value of said property to $250.00, by the oaths of Josiah S. McKiel and Winiam L. witnesses; and the said complainant, William B. Pool, having on same day executed his bond to me, with Phillip Ramer and F. residents of said county of Phillips , as securities, who were appr,A by me, in the sum of $700.00, conditioned as required by law.. did, on the same day, deliver said slave to said complainant, W. B. Pool; and said bond is herewith returned; and I further executed this writ on Warner P. Loomis, at his residence, in Phillips county, by then and there leaving with a white member of the family of said. Loomis, over the age of fifteen years, 'a notice in writing, in the form and to the effect required by the , statute." At the term to which the writ was returnable, the defendant; moved "to dismiss the action for want of execution of the writ, in accordance with the provisions of the statute in such cases made and provided," and prayed a return of the property, and a writ of inquiry to assess ins damages, &c. The Court sustained the motion; ordered the suit to be dismissed; gave judgment that the property replevied be returned to tho defendant; awarded a writ of inquiry to, sustain his damages, which was executed, .and the damages assessed by a jury: and then pronounced a final judgment in favor of the defendant, not only for the damages so assessed, and his costs expended in defending the suit, but also, "that said plaintiff take nothing by his said suit of replevin, and that said defendant go hence thereof without day, and said plaintiff be . in mercy, &c." The plaintiff excepted to the opinion of the Court dismissing his suit, and also to each subsequent proceeding in the case, and appealed. The case was argued here by W. & E. Cummins, for the appellant, and Hempstead & . Johnson, contra. By the Court, RE.g oo, C. J. Several questions are presented by the record and assignment of errors. The first is, did the Court be-
1112 Poot. vs. Looms. [5 !iow err in dismissing the suit on the appellee's motion? This motion .is baied solcly upon the ground, that the return of the writ of replevin , does not show a valid legal execution of the writ on the defendant. 'That the return is defective, and wholly insufficient to bind the de-iendant below to appear to the action, or, in default of his appearance, to authorize a jUdgment against 'him, there can, in our opinion, be but little doubt, because it not onl y appears affirmatively on the face , of the return, that the sheriff, contrary to the express inhibition of the statute. proceeded in the execution of the writ ; and replevied the property iherebi mentioned, before he had received the bond required to be executed to him by the plaintiff, or some other person in his behalf, with sufficient security, to be approved by him,, in a sum at least double the value a the propert y specified in the writ, ascertained by the oath of one or more witnesses, sworn and examined by him for this purpose, according to the provisions of the 7th and 8th sections of the 126th chapter of the Rev. St. Ark. p. 660; but also, because it wholly fails to show that he either read the writ to the defendant, or delivered him a copy thereof, or left a copy thereof at his usual place of abode, with some white person of the :family, over fifteen years of age, as he was required to do by the provisions of the 29th section of the same _statute, which enacts, that "the writ shall be served in the same time :and manner as in other actions;" and does not set forth ) with sufficient • certainty, the contents of the notice left by him at the residence of the defendant, or show that it was signed by him, as required by tho .1.0th section of the statute above cited, According to the several statutory provisions on the subject, the return, when the property is replevied and delivered to the plaintiff, • as in this case, must, in our opinion, show, with rexsonahle certainty, that the plaintiff's bond was executed before, and was in the hands of, the-officer charged with the execution of the writ, at the time of its .-execution, and the names and places of residence respectively, of the •securities therein; what property is replevied, and the disposition 'thereof made by him; that the writ was read to a defendant, or a true ,. copv thereof delivered to him, or left at his usual place of abode, with some white person of the family over fifteen years of age; and that a Irief notice in writing, signed by the officer executing the writ, and
ARK.] Poet, V3. LooAtts. 111 containing a statement of the name of the plaintiff, the name of his attorney, if the writ be prosecuted by one, and the • time and place where the defendant is required to appear, was delivered to the defendant personally, if he'Eanbe found; or that he could not be found, and therefore a like notice, in writing, was left at his usual place of abode, with some white person over the age of fifteen years; and a member of his family. Rev. St. Ark., ch. 126, sec. 7, 8, 9, 10, 21, • 22, 29, and ch. 116, sec. 13, 14; or according to the provisions of the. section last cited, show that he offered to read the writ to the defendant, or deliver hi HI a copy thereof, and that he refused to hear it read, or 4 ,o receive such copy. But admitting the return to be insufficient, as we think it unquestionably is. that constituted no legal ground upon which tile Court could dismiss the suit on the motion of the defendant, according to the express adjudication of this Court, in the case of Tughes vs. Marlin, 1 Ark. Rep. 386. . But the bill of exceptions taken by the plaintiff, after stating the plaintiff's exception to the opinion 6f the Court dismissing the suit, shows that "the Court also, immediatel y upon sustaining said motion of said plain t iff, decided and determined that, under the statute, no other or further proceedings could be had in the cause by said plaintiff, unless said return on said writ conld be amended, so as to comply with the requisitions of the statute, according to the judgment of the Court, wkich plaintiff refused and omitted to do." This statement in the record, as we conceive, presents the question of whether or not the plaintiff in replevin can, if his arig-inal writ be not executed, have an it alias or phiries, as in other actiOns at law. The solution of this pies-:, Con is, we think, to be found in the Sth section of the 159th chapter — - of the Revised Statutes of this State, which declares that "when any 1 writ or other process, issued out of any Court of this State, shall . not be executed, the clerk of such court, on the application of the party suing out the same, shall issue an alias, phiries, or other proper process, with-; out an order of court for that purpose." This language is surely comprehensive enough to include the writ of Teplevin, and does, in oar opinion, embrace it, as well as al.l other writs issued out of any court. And we are not aware of any restriction whatever upon this authority i)onferred by the statutory provisions above quoted, upon the clems v_S
114 Pool, vs. Loomis. 15 His authority, however, is, in this instance, made to depend upon tits fact of the non , executiOn of the original or previously issued process; and therefore, where that fact does not appear by the return of the former writ, the clerk derives no authority from the provisions of the statute above quoted, to issue any such alias or pluries writ. The return of. the writ issued in this ease being insufficient to bind the defendant to appear, the law, in our opinion, regards the process as not executed, and the plaintiff was, therefore, entitled to an alias, without any order of court directing it to issue; and therefore the refusal or omission of the plaintiff to amend the return, a matter over which he, of course, had no control, but which belonged exclusively •to the officer charged with the execution of the writ, who is always presumed to make a true return of ail his official acts done by virtue of legal process, and, in this instance, probably could not have amended his return, so. as to shw a valid service of the writ on the defendant, constituted no legal ground upon which the Court could dismiss his suit :Or adjudge a return of the property to the defendant.- Besides, the record shows that, in point of time, the Court had, in fact, sustained the motion of the defendant, and dismissed the suit before thoplaintiff xefused to tunend the return. We, however, attach but little importance to this circumstance, as the plaintiff was there in Court, prosecuting his plaint, until he was arrested therein by the judgMent or decision of the Court"On the defendant's motion, without the defendant hay ing ever appeared to the action, or become legally a party to the • suit in Court; and ttlerefore, as no valid judgment whatever could then have been pronounced against him in the cause, so, for the like reason, no judgment could be legally given therein for him against the plaintiff, not even a judgment of non-suit or for costs, as was held by this Court in the case of Hartley vs. Tunstall, Waring, and Byrd, 3 Ark. Rep. 119. And the defendant, if he wished to obViate the delay occasioned by the non-execution of the process, instead of moving to dismiss the suit because the process was not executed, should have made himself a party to it by entering his voluntary appearance to the action, and thereby have prevented the delay which, as the plaintiff, must otherwise have been unavoidable, as he could not proceed in the cause to judgment, until the defendant was legally served with process
ARK ] Poo', vs. Loomis. binding him to appear ; and such service could only be obtained upon his suing out an alias or pluries writ. Besides, if the defendant should be damnified by any unreasonable or unnecessary delay of the plaintiff in the prosecution of the suit, his remedy agains.t the plaintiff and his sureties, on their bond to the sheriff, which, if sufficient, is held in trust for the defendant, and may be assigned to him at any time after judgment is rendered for him in the action, is ample and complete. The Circuit Court, therefore, in our opinion, erred : first, in dismissing the suit on the motion of the defendant,on the ground that there was no valid execution of the process upon him ; secondly, in deciding that no other or further proceedings could be had in the case by the plaintiff, unless the return of the writ could be so amended as to show a valid legal execution4hereof, when the plaintiff was by law entitled to an alias writ ; and thereby, in pronouncing and entering up judgment for and in the name of a person, who was not legally before the Court as a party to the suit, and therefore could not be legally bound by any judgment in the cause, either for or against him. Judgment reversed, and defendant to be considered in Court. The death of the appellee, since the argument and submission of this cause, being suggested and proven to the satisfaction of the Court, a motion was made by the appellant to enter judgment nunc pro tunc as of a day previous to such death. By the Court, PASCHAL, J. This case was argued and submitted to the Court since the commencement of the January term. The Court took the case under advisement ; and since the delivery of the opinion., the death of Loomis, the defendant in the action, as well as the defendant here, has been suggested ; and it has been proved that he departed this life since the car was taken under advisement. A motion has been made that judgment be rendered against him, in accordance with the opinion of this Court. A motion was sustained upon a like suggestion, in this Court, in the case of Carter, Ex'r of Ellis, vs. Menifee, 4 Ark. Rep. 152 ; but as the order was a mere matter of record, it does not appear in the report of the case ; nor was Menifee's death suggested on the record. The Court there proceeded
15 upon the common law rule, that, if either party die after verdict, in vacation, judgment might have been entered that vacation, as of a preceding term; and it would have been a judgment at common law, as of the preceding term, though it be not so upon the statute of frauds, in respect of purchasers, but from the signing: Tidd, 346, and reported cases cited note (e.) And if either party die after the spcial verdict, and pending the time taken for argument or advising thereon, or on a motion in arrt of judg—ment, or for a new trial, judgmPrit may be entered at common law, after his death, as of the.time at which the postea was returnable, or judgment would otherwise have been given nunc pro tune, thaz the delay, arising from the act of the Court, may not turn to the prejudice of the party. 2 Tidd, 346, and cases in note (f.) As this question will be the subject of express adjudication in a case now bt..- fore us, (Jennings vs. Ashley, post), we shall forbear farther remarks upon tbe authorities on the subject, at present. When a case has been argued and submitted in the Supreme Court, it is, until the decision, properly under advisement; and, if either party die before final judgment, the judgment may be rendered in the names of the original parties, as of a day previous to such death ; or, if the death of either party be suggested or proven, a nunc pro tune order may be made, to extend back to a day after the submission, and before such death. Order nunc pro tune.
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.