State Bank v. Marsh, 10 Ark. 129 (1849)

July 1849 · Arkansas Supreme Court

10 Ark. 129

State Bank vs. Marsh.

When an application is made to a court to quash an execution, the return thereon, and set aside a sale made by virtue thereof, the parties to be affected by the application, must have notice thereof.

Where such notice is served by a person other than a proper officer, the return of service should be verified by affidavit. Digest, Chap. 126, Sec. 22-3.

Writ of Error to Independence Circuit Court.

The Bank of the State brought an action of debt in the Indepen ■ dence Circuit Court against Noadiah Marsh and others, in which Marsh recovered judgment against the Bank for costs. Execution issued on the judgment to the sheriff of Independence, who levied on and sold some lots in the town of Batesville to satisfy the execution, and Wm. Byers became the purchaser of the lots. After the execution was returned, the Bank filed a petition in said court, praying that said execution and the return thereon (among others) be quashed, and the sale made thereunder set aside.

A notice of the application, directed to Byers & Patterson, as the attorneys of Marsh (and others) is copied in the transcript, upon which is the following endorsement: “I, A. Alexander, do solemnly swear that I did, on the 28th July, 1847, present the within notice to the within named Wm. Byers & James H. Patterson, and they thereby acknowledged service on the same.”

This affidavit is not signed by Alexander, nor does it appear to have been made before any officer.

At the May term, 1848, the application to quash the Marsh execution, &c., was determined before the Hon. Wm. 0. Scott, Judge, and the motion overruled.

The Bank brought error.

Carroll, for plaintiff.

Byers & PatteRSon, contra,

contended that the defendant in error had no notice of the proceedings, and therefore the judgment of the Circuit Court ought to be affirmed.

Mr. Chief Justice Johnson

delivered the opinion of the Court.

This was an application to the Circuit Court of Independence county to set aside sundry executions issued against the State Bank; and amongst others, one in favor of Noadiah Marsh. It is a well settled doctrine in this court that, before a party can be deprived of his legal rights by a judicial sentence, he shall have either an actual or constructive notice of the pendency of the proceeding against him. The petition filed discloses the names of certain persons who are to be affected by the proceeding, and consequently it was the unquestionable duty of the Bank to have notified them of the intended application, and having failed in this particular the Circuit Court had no right to take cognizance of the case and make an order in the premises. The record, it is true, contains notices, but they do not appear to have been legally executed upon the parties to be affected by them. They purport to have been executed by A. Alexander, but without any legal verification of the fact of service. Inasmuch as the service was not made by any officer known to the law it was absolutely essential to its validity that its truth should have been verified before some tribunal authorized by law to administer oaths. There is no error therefore in the decision of the Circuit Court, and it is in all things affirmed.