Boyer v. Robinson, 6 Ark. 552 (1846)

April 1846 · Arkansas Supreme Court

6 Ark. 552

Boyer vs. Robinson.

By appearing and pleading to the merits of the action, a defendant waives any objec. tion that he might otherwise take to the service of the writ.

Where the defendant has pleaded the general issue to an action, it is erroneous to render judgment against him, nil dicit, without disposing ofhis plea.

Where the sheriff serves a writ of summons by leaving a copy at the residence of the defendant, his return must show that he left it with a white person of the family, &c.

Writ of error to the circuit court of Crawford county.

This was an action of assumpsit, by Robinson against Clauson and Boyer,determined in the Crawford circuit court, at the August term 1845, before the Hon. R. C. S. BrowN, Judge.

The facts appear in the opinion of this court.

Boyer brought error.

W. Walker, for the plaintiff.

The service of the writ of summons in this case was by leaving a copy with Mrs. Boyer and Mrs. Clauson, members of their family over the age of fourteen'years; which was insufficient to warrant the' circuit court in giving judgment against the plaintiff by default. See Rev. Stat. Sec. 13 p. 621. This court, in the case of Hudspeth et al. vs. Gray et al. 5 Ark. Rep. 157, decided that such a service was insufficient. In this case the return of the sheriff does not show that the persons with whom the copy were left, were white and over fifteen years of age.

The judgment by default was erroneously given whilst the separate plea of John Clauson, one of the defendants in the court below, remained undisposed of. See Cale & Severs vs. Wagnon, 2 Ark. Rep. 193.

Pike & Baldwin, contra.

By the uniform course of decisions in this court the judgment in this case is bad and reversible. There was no service on Boyer, and judgment was rendered against Clauson without disposing of his plea of non assumpsit. The ends of j ustice will be more speedily attained then by reversing the judgment,at once, and remanding the case for further proceedings — Boyer having made himself a part-by suing bis writ of error and Clauson by filing his plea.

Johnson, C. J.,

delivered the opinion of the court.

The 13 section of the 116 chapter of the Revised Code, provides that a summons may be executed either by reading the writ to the defendant or by delivering him a copy thereof, or by leaving a copy thereof, at his usual place of abode with some white person of the family over the age of fifteen years. The sheriff certifies that he executed the writ upon John Clauson and T. C. Boyer on the 5th of July at the county of Crawford and State of Arkansas by then and there leaving a true copy thereof, at their usual place of residence, with Mrs. Boyer and Mrs. Clauson, members of the family over the age of fourteen years. Clauson appeared under this service and filed the plea of the general issue. Boyer made no appearance, but made default. Clauson by appearing and pleading to the merits waived any advantage that he might otherwise have taken of the service. The record contradicts itself when it shows a regular plea, and that pleaded too in apt time, and at the same time says that Clauson had nothing to say in bar or preclusion. The circuit court manifestly erred in giving judgment against Clauson by nil did/, without making any disposition of of taking any action upon his plea. The service is clearly bad as the copy of the summons does not appear to have been left with a white member of the family over fifteen years of age. A service varying from the form prescribed by the Statute in any essential particular is tantamount to no service whatever. In order to have given jurisdiction over the person of Boyer, it was necessary that the copy should have been left with some white person, a member of the family, and also that such person should have been over the age of fifteen years. The Statute is express and imperative, and we are not authorized to indulge any presumptions in favor of either color or age. The record nowhere shows that he ever waived the defect in the service by entering his appearance, consequently the judgment against him is irregular and void. It is therefore considered and adjudged that the judgment herein rendered by the circuit court of Crawford county be and the same is hereby reversed, annulled and set aside with costs, and it is ordered that the cause be remanded, and that Boyer be required to appear and defend the action as if he had been served with a valid process thirty days before the return day of the writ.