ARK.] BARTON-MANSFIELD • COMPANY V. HIGGASON. 535 • BARTON-MANSFIELD,COMPANY V..HIGGASON. • , ••••• Opinio , n deliver . ed • April. 6;' 1936. CONTINUANCE.- By act No. 4, Acts 1. 931., p 10,.opé against whOni 'an action is instituted Eit'a tinie' When the General' ASseinbly' iS in - sthsion and the attorneY that he employs and who has represented him fOr a number of years and is familiar with the fads 'involved •• is a member of the . . General. Assembly. the . .defendant ,is,,entitled to have hiS case continued until its ; adjournMent.. • .. . 2. JUSTICE OF ' THE PEACE.-L-*here,. in* an actio'n in coUrt of 'a jUStiCe of the peace, defendant filed motion for continuance on the' 'ground that his attorney who had represented hint for a number:of years • and was familiar with the facts was a member of the•General Assembly which was in session at time action was instituted,,and • the court oVerruled the motion and rendered judgment for , plain7 'tiff, such judgment was 'void and subject to collateral . atta4, azia the justice who, when advised of the : filing in 'cireuit court of • petition for certiorari against- him; appeared: with :his boOks waived formal service of notice thereof. • . . ,•• , .• Appeal from Drew . Circuit Couit, DOT & L...Pii;lci4is, Judge; affirnied. .; - C. -for appellant. .W. F. Noirell, for appellee. ••:• .BUTLER, J. This action originated in the court , of the justice of, peace within and for,Drew,County,,,Ark-, ansas. It was filed on January 22,•1935, and resulted in: a judgment on March 1, .1935, in •favor of plaintiff, l3arton-Mansfield Company. During all that time the General Assembly was . in • session,: Hon. W. F. ,Norrell being the senator from the, • , , • senatorial district composed of .flrew and D,esha counties. Upo31 the return day of the summons the.defendant,..Higgason,
536 -BARTON-MANSFIELD COMPANY V. HIGGASON. [192 secured a continuance until February 4th, and again un-. til February 11th. These dates appear to have been fixed by the justice for the reason that Senator Norrell was in the habit of coming down to Monticello to spend the week-end at his honie. On the 11th of February the justice was ill and the case was continued until March 1st. On that day the plaintiff appeared and announced ready for trial while the defendant (quoting from the justice's docket) "announces not ready and makes a motion for continuance until after the Arkansas Legislature adjourns and Senator W. F. Norrell, his attorney, returns to Monticello, Arkansas, which motion was by the court overruled, the court considering the same unreasonable and unfair to the plaintiff." The judgment then recites the taking of testimony on the part of the plaintiff, and that the defendant was given an opportunity to present his evidence but refused to do so. Thereupon the court proceeded to render judgmene in favor of the plaintiff, and the defendant prayed and was granted an appeal. On May 18, 1935, the defendant filed a petition for writ of 'certiorari in the circuit court of Drew County, alleging the facts hereinbef ore recited and, as a defense, that the cause of action was identical with a suit which had been filed before in the court of G. T. Sikes, a justice . of the . peace in and for Drew County, and that in said cause before said justice judgment had been rendered in his favor which judgment he plead as res judicata. On motion of the Barton-Mansfield Company certain paragraphs of the petition for certiorari were stricken by the trial court, and a demurrer to the petition was overruled. At the hearing of the petition, both parties introduced testimony after which the court granted the prayer of the petition, quashed the judgment and ordered "that the justice of the peace * * * be directed to retain jurisdiction of said cause, and for farther proceedings, * * * Barton-Mansfield Company, the appellant, as conclusive of the action of the justice, relies on the fact that Senator Norrell could not have been employed in the case before the convening of the Legislature because the.
ARK.] BARTON-MANSFIELD COMPANY V. HIGGASON. 537 suit was not filed until after the Legislature had convened. In support of this contention the case of Cox v. State, 183 Ark. 1077, 40 S. W..(2d) 427, is cited. That ease upheld the action of the circuit court in refusing to grant a continuance in a criminal prosecution where it was alleged, as a cause for same, that a member of the Arkansas Legislature, then in session, was employed by the defendant to represent him. This motion was based on act No. 4 of the Acts of 1931, : § 430, Castle's 1931 Supp. to Crawford & Moses' Digest. This act provides that in suits pending in any of the courts of this State, in which an attorney for either party is a member of the General Assembly, proceedings shall be stayed for not less than fifteen days preceding the convening-of the General Assembly, and for thirty days after its adjournment, unless otherwise requested by any interested member of the General Assembly. In the case of Cox v. State, supra, the court held that the trial court did not err in refusing to grant the continuance where under the circumstances of that case the attorney was employed after the proceedings had been instituted although he was a member of the Legislature at the time of such employment. In commenting upon the facts, the court recognized the right of litigants in proper cases to have a continuance under the provisions of act No. 4, supra, but said that "where a person is indicted after the meeting of the Legislature charged with the commission of a crime at a time after the meeting of the Legislature, he cannot, by merely employing an attorney who is a member of the Legislature, have his case continued, without a.ny showing as to when the employment was made or that the member of the Legislature is his regular retained attorney. If this was the meaning of the statute, all any person charged with crime in any of the courts would have to do to get a continuance would be to file a -motion alleging that he had employed a member of the Legislature to try his suit." It was noticed by the court that the attorney, who was a member of the Legislature, and alleged to have been employed, made no request for a continuance, and did not communicate with the trial court in any way.
538 BARTON-MANSFIELD COMPANY V. HIGGASON. [192 That court, and this one on appeal, as iS clearly implied by the language used in the opinion, concluded that the allegation in the motion for• continuance was a mere subterfuge adopted for the purpose of securing the . continuance. In the case of Bottoms v. Superior Court, etc.,. 82 Cal. App. 764, 256 . Pae.. 422, in considering a question similar to the one here presented, and under a statute of like import aS our own, the Court said: "If it be shown that-the •party to the action elaiming the benefit of that provision . of. , said section has 'other attorneys of record in the case capable . of managing it in court, or that some attorney, a member Of the Legislature, had been employed fer no other .purpo g e 'than to secure to a party the benefit of the proVision in question from sinister or improper inotive8, then, in either such cases, particularly in the last suggested, a. continuance Should not be granted." In the Cox case, supra, the court expressly recog-nizCd the right to a. contimiance, , net only where ,an at-terney 'had 'been employed prior to the meeting of the Legislature; but where "if one's regular attorney is a meinber • f the . Legislature . and suit should arise, the party wOuld , have a right to a continuance on account of his . attorney being in attendance upon the Legislature." His clear 'that Senator Norrell was the regular' at-terneY of the appellee, , Higgason,.having represented him in all matters for as long'as ten years prior to the filing of the instant suit, and that he Was peculiarly acqUainted with the facts- involved. The justice, in overruling the Motion for a. continuance, did not base his action on the time or nature of the senator's employment, but on the fact that he considered the motion "unreasonable and Unfair to the 'plaintiff:" • •.. It would . then appear that the defendant in the justice court was entitled 'to a Continuance under the provisions of the statute, and the question remaining for ofir consideration . is what is' the effect of the judgment rendered by the 'justice ? 'The Statute is quoted at length in the. case of Fox 1:r. State, supra, and from its provisionS it would Seem that all proceedings in any suit should be stayed When it is brought to the attention of the court that an attorney' representing one *of the litigants
ARK.] BARTON L MANSFIELD- COIVIpANY- V.- HIaGASON 539 is a . Member. 'of, : and in . attendance,bn, : the General ' As, semblY.. : In : construing the effect bf . the statute i, in::that case AV.e said : :".At-comnion law apPlications' , for ,-coni tinnance were • addreSSed to the: smind,discrétion of the. cOurt, • but, : nnder the' .statute , aboYe • quoted :- it-is inanda,-; tory. 'upon the conft to . 'grant a. continuance made to nlipear to the , court ,by 'Proper ShoWing that ' the. defendant had- employed 'his nttorney „prior to' the coni vening of the LegiSlature;; and ,at- 'the ! time ;set • for :trig his attorney was in attendance ripen. sesSion fef . the Legislature." • TO the; same e:ffect : was 'the. holding Of the court in' Bottonis. v.. 'Superior •Court,.etc.,.supin;• 'and that ca g e a: judgment !of• .the • lower , court was !quashed on certiorari • where-. the•• 'defendant had:invoked the . provisions „of the . statute,' : and' hiS 'Motion fOr cOntinuance. had been overrnled:- • ; • .; .. • • .; , ' It• is argued that certiorari, cannot; ,b-e;:invoked. cause the defendant had the: right Of . appeal ,which. wag.. lost by his'. own negligence: .• ..the judguient;.- of the juStice.- was Void, . certiorari - is •a . proper. , remedy even though -the judgnient might haVe - been :Vacated and . : set-aside: on: appeal.. -Fayetteville v. ./3oler , . -176 ATI. -1030, 5 S. W. (2d) 302. In . Gre0 v. Hatcher; 94- Ark.. 54, 12'5.-S: W. -1007, a . judgment of the justice-,court was. quashed, :oil certiorari where : the' justice: had . ; Proceeded •in. excess • of his jurisdiction: • , • ' • .. . In Green v. State,: .155 .Ark.,..45,-.243. ; S.: W...950; a, judgment of -the mnnicipal edurt was quaShed :on-. cer-tiorari,' this' court holding that where 'a 'Motion for , change of • venue had : been . filed in compliance With the .statute, court was. •dePrived. of , jiisdictioñ. to: proceed further; in the case ekcept •to' make . an • Order..changing the. venue., The reason for thiS -heading was the- peculiar langtag0 of the -statnte. which: was :mandatory:in-its mature, 'the' effect of which: Was' to prevent•any further .action . .by :the, municipal. court • after: .the.:motion . for change ; •of venue-had been made ekcept to. order- the.:change ;of ,venue..as: prayed. • ; •; • ; ; • ; ; .; • It is clear, . from, the : imperative: language: .of the. statute now nnder 'consideration; -.that .;all proeeeding. should .be , stayed; until, thirty .days. after the adjourlment
540 BARTON-MANSFIELD COMPANY V. HIGGASON. [192 of the General Assembly, and that any other action by the lower court would be in excess of its jurisdiction. Therefore, when the court, in this case, ignored the motion for continuance in violation of the express provision of act No. 4, supra, and proceeded to render judgment, it exceeded its jurisdiction, and where this was made to appear to the circuit court it was within its sound discretion to grant the writ prayed for and to quash the unauthorized judgment of the justice court. Reese v. Cannon, 73 Ark. 604, 84 S. W. 793. It is contended here that no formal writ was served upon the justice or response made by him. The record shows that the justice appeared in the circuit court bringing with him his docket and the original papers in the case when he was advised of the filing of the petition without requiring the issuance and service upon him of the writ. The purpose of the writ was served when the justice appeared in the circuit court with his docket and the original papers which constituted a waiver on his part of the formal proceeding, and we find no objection made to this which has been preserved in the record. The judgment of the trial court works substantial jUstice and leaves the case where it may be tried and determined upon its merits. As we view the effect of the statute, we are also of the opinion that the action of the lower court in quashing the judgment of the justice court is correct, and it is therefore affirmed. SMITH, MCHANEY and BAKER, JJ., dissent. • SMITH, J., (dissenting). It was held, as the majority say, in the case of Cox v. State, 183 Ark. 1077, 40 S. W. (2d) 427, that the provisions of the act of 1931, are mandatory and so they are. Being mandatory, they should be observed and not violated; which is only another way of saying that courts are not vested with a discretion to continue, or to refuse to continue, suits in which any attorney for either party to the suit is a member of the Senate, or of the House of Representatives, or is a clerk or sergeant-at-arms or a doorkeeper of either branch of the General Assembly. But it does not follow that the judgment •is void because of the error of refusing the continuance. The jurisdiction abides. Its erroneous ex-
ARK.] BARTON-MANSFIELD COMPANY V. HIGGASON. 541 ercise is an error whiCh maY and should be cured in the manner provided by law, pursuant to a practice long-established and well-defined. If a justice Of the peace erroneously refuses to obey. this practice act, and tries a case in which an attorney is a member of the General Assembly, or a clerk or a sergeant-at-arms or a doorkeeper of either branch of the General Assembly, he Commits an error by violating this mandatory . statute. But the error does not render the judgment void. There was no loss of jurisdiction. A very simple and amply sufficient redress is provided, which is the right of appeal, and when that right has been invoked, the case is tried de noi)o. It may be unfortunate if the obstinacy, or ignorance, of the -justice of peace makes this . expense and trouble necessary. But, , if nisi prius- courts made no mistakes, there would be no necessity for appellate courts.. If, when the case reaches the circuit court, the error is repeated, or, if the error is made in a case originating in the circuit court, that error may be corrected upon an appeal tO this court, by ordering a new trial; not because the circuit. court did not have jurisdiction, but because . it had committed an error in the exercise of that jurisdiction. There are many statutes regulating the practice in both justices of the peace and in the circuit courts. For instance, a justice of peace niight erroneously refuse to allow a party . to exercise the number of challenges in selecting a jury, to which the statute entitled him. He might even be denied the right of a jury trial. This wo uid be error; but it- is one-which could and must be - corrected by appeal. The party aggrieved could not ignore this simple remedy and have the judgment quashed on certiorari. In Abbott v. State, 178 Ark. 77, 10 S. W. (2d) 30,; a defendant, who had erroneously been denied a change of venue, sought by certiorari to have the judgment of the justice of peace, who had imposed a fine after denying this right, quashed. We said this 'error did not vacate the jurisdiction of the justice of the peace (Kinkead-v. State, 45 Ark. 536), and that the error of refusing the
542. BARTON-MANSFIELD COMPANY V: ITIGGASON . •[192 change • of venue, and • of retaining' jUrisdiction, could not be • corrected.by .certiorari nor did: it 'entitle the defendant, upon conviction, to his release . on habeas • carpus. This, was true because relief should:have been . obt ined by appeal. . . . . . .• In Ex parte 'Williams; 99 Ar . k •475,. 13S S., W. 985., chancellor, in a ,habeus corpus, proceeding, . ordered, .the discharge •of a prisoner who ihad been fined .and commit-, ted to jail, after ha y ing been :denied . a trial .by„,ju ry the police; court. ..Assurning the right • to a . jury . trial . ex: isted, the court . said that : • • ' The.refusal, of the: . police court to allow a,jury . ,,was merely ,an• error which cOuld be corrected by •appeal only and that question . .cannot be, raised on habeds corpus,. . , Ex parte , Brandou, :49 .Ark.; 143, 4 S. W. 452 . .!' • . : . The case iof Cox .v. State, supra, affords no •authority for holding to be void the justice 7 s. judgment . here • que8- • tioned. There, an accused was put to .the circuit court, while his :attorney ..Was serving . as a member.. of the General .AsSembly The judgment was, not declared void: It was not even reversek because the attorney had mit been employed before the LegislatUre convened and was not the regular attorney for the; defendant.: ! We read that, exception . into, the, . act .because„as was there stated, it was not thought that the Legislature:intended that a 'person indicted for , a i felony, even; ;as:was pellant in that, case, .might. secure..a continuance , , of. his case by employing an . attorney y■T110 ,was metuber .ot, and, already in attendance upon, a session'.of the. General Assembly. It . was there• stated that the act. of 1933,.*oii• mandatory ; but the opinion, contains no . intimation ,that the . error .of not observing it .could, not ',and '•should not be cured by appeal. • The' California ease ..of Bottoms • v. .Super4or Court, cited and :relied upon by the, majority, Arose , under a speCial • statutoiy . proceeding involving .the right •of condem, nation of property. -The court there . said : The..remedy herein sought is .proper., 'There 'is no appeal. frem order granting: or •refusing to grant,, or, as bere, setting aSide au order granting* a continuance,of ;the trial of a
' AEK.] BA RTON-MANSFIkEdD . COMPANY li. : HIGGASON. 543 .caSe.: :: Section;964 Code Civ. Proc.. Such an: 6rder•would be' re l viewable On an •peat , from the, judgment:„ ' but the circumstances .. of this ca g e' 'obviously: require • a' More Apeedy remedy ,, than. 'wOuld • ' thus, be afforded.% The case of Chicago.Publid . Stock! , „Exchange l i. .. : McClaughry; 148 372, 36 N:'E:!•88, .does • not:hold 6therwise." • • The • se , there' , 6ted,' an • d • 'not 'disapproved, pi . esented . OnlY - the ' questibti the ° effect Of 'a . refusal 'to gi/ant 'a . c6fitinuaned ta'a = litigant 'aS . 'reqniked'by a Aatute f' 'that Sthte' WhoSe''attothey 'Was in actual 'attendance npOn 'a 'seSSiOn of' the General Assembly at the 'Oapitolnf the . State'thid had'been en:11)106d by cornplain-'ant • 'as' itS -SOliditor: 'in s'aid 'Snit 'prior' tb 'the • cOmMenCeL ment • of' • the' • said''se gg oii-Of'-the' : Gdtteal AS§• embl-Sf ' 'and that the' p'reSence find 'attendanCe 'Of said sOliditor in:court were neceS'sary to' a 'fait 'and • prOPertrial• of: said 'case." 'cOurt held' 'that' as *there • waS an •adeqnate rethedy 'by appeal,' no•'oter relief ' . wOuld be granted. • ' • The CaSe of 'Greeli Stte, cited bY the , miijority arose under an act requiring municipal dourts to gthnt changes of venue in certain eases, and upon certain conditions, and declaring . judgments rendered in violation thereof void. In other words, mnnicipal courts could not render valid judgments in cases ' Over : which they had lost jurisdiction. The act of 1931, : here involVed, contains no such provision, and does. not attempt to divest the jurisdiction by filing the motion for continuanCe. The Green caSe," ha • Nj.ng arisen ithaet a' statnte , of different...purport, has he controlling , effect here... The opiniOn in the...Green •e:ase-,- supra, appearing in the,-1i5;.5..4)*, :4,5, 24a 950,- was:handed . down 'October .2; 1922, aud was delivered by 'Chief- Justice McCunnocn. • The- opinion-in the-case of Shariti mi'v../1 / 2 eriwether, 156 Ark. 331, 246 S: W: 501, 'delivered January 8, 1923, was written' by the' Same learned judge. It made ha reference to the Green-case whidh was evidently , regarded' as • inapplieable to 'the .• fadts of tha:t case. In this caSe 'of Sharum .otpra, the probate court . had refused . ' a 'jury tO -Sharnm; whe was alleged , to 'be. insane. 'and-WaS 'adjudged sO to .be br the cOurt. 'The validity, of this judgment was .challenked:7on
544 ,[192 the ground that the record affirmatively showed that the court had refused to order a jury and had made the adjudication of insanity without the intervention of a jury. Certiorari to quash this judgment was denied although it was said that the court had abused its discretion and had committed an error in refusing to order a jury. It was so held because, as was there said, this was an error . which could and should have been corrected by appeal. The reasoning leading to that conclusion was that the court had jurisdiction which was not defeated because there was an erroneous exercise of it in the proceedings. The error was one which could and should have been corrected by appeal and certiorari could not be employed as a substitute for this sufficient remedy. I therefore dissent from so much of the majority opinion as holds the judgment of the justice of the peace to be void for the error of refusing to continue the cause on account of the absence of the attorney. I am authorized to say that Justices BAKER and MCHANEY concur in the views here exPressed.
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.