Ex parte Cross, 7 Ark. 44 (1846)

April 1846 · Arkansas Supreme Court

7 Ark. 44

Cross et al. Ex-parte.

Writs must be served in one of the modes prescribed by the Statute, and the mod® adopted must be strictly pursued. If it be by leaving a copy at defendant's residence, the return of the sheriff must expressly state that it was left with a white member of the family; and where this is not shown the court has no jurisdiction of the person of the defendant, and a judgment by default against him is absolutely void. Where execution issues upon a void judgment, is levied upon presonal property, a delivery bond taken, returned forfeited, and judgment rendered upon it, the original judgment being void, all the subsequent proceedings are also void, and may be superseded.

Motion for Supersedeas.

On the 4th of May 1846, Edward and Robert Cross presented a petition to this court for a supersedeas to a judgment of the Hemp-stead circuit court. The petition and transcript accompanying it disclose the following facts, substantially:

In August 1840, Farrelly brought an action of debt against David W. Carroll and Edward Cross, returnable to the October term of the Hempstead circuit court following. The sheriff returned not found as to Carroll, and that he executed the writ on Cross “by leaving a true copy thereof at his residence in Hempstead county, Arkansas, in the presence of Robert Cross, a member of family over the age of sixteen years.” At the return term, the plaintiff discontinued as to Carroll, and took judgment by default against Cross, On the 31st May 1841, afi.fa. was issued upon the judgment, returnable to the October term following. The sheriff returned upon the writ that he had levied it upon personal property, taken a bond for its delivery, executed by Edward Cross as principal and Robert Cross as security, that the bond was forfeited, and thefi• fa, not satisfied. At the return term, October 1841, on motion of the plaintiff, the court rendered judgment against them upon the bond for the amount of the original judgment, &c. On the 3d December 1841, an execution was issued upon the judgment on the delivery bond, returnable to the April term following. . The sheriff returned upon the writ, that he levied it upon lands, the defendants availed themselves of the benefit of the appraisement act, and the lands failing to sell for two thirds of their value, the sale was postponed.

At the October term 1842, on the motion of the plaintiff, the court ordered a writ of error coram nobis to the judgment on the delivery bond, returnable to the May term 1843. And on his motion the writ was dismissed at the return term, the judgment on the delivery bond revoked, and a new judgment rendered upon it.

On the 25th July 1843, a fi.fa. was issued on the third judgment returnable to November term 1843 ; which was levied upon lands by the sheriff, the benefit of the appraisement act again claimed by defendants, and the lands not sold. On the 29th January 1845, the plaintiff sued out a ven. ex. with a Ji.fa. clause upon the second judgment, by virtue of which the sheriff sold the lands specified in the writ, and made a further levy upon personal property which remained in his hands at the time of the petition for supersedeas.

WAtkins & Curran, for the motion.'

Johnson C. J.,

delivered the opinion of the court.

This is a motion of Edward and Robert Cross for a writ of su-persedeas to a judgment rendered against them and in favor of Terence Farrelly, at the May term of the Hempstead circuit court 1843.

The judgment originally rendered between the parties is absolutely null and void according to the repeated decisions of this court. The service had upon Edward Cross under the original summons which issued in the case is wholly insufficient to confer jurisdiction upon the circuit court over the person of the said Cross. The sheriff certifies that he “executed the within writ on the within named Edward Cross by leaving a true copy thereof at his residence in Hempstead county, Arkansas, in the presence of Robert Cross a member of family over the age of sixteen years.” All wilts must be served in one of the modes prescribed by the Statute, and that one adopted must be strictly pursued. The Statute requires the copy to be left with a white member of the family aud the color must be expressly stated. The defendant was under no legal obligation to appear, under the service endorsed upon the writ, and consequently a judgment by default was irregular and void. The record discloses no subsequent act of his which could amount to a waiver of his rights, and consequently every act of the circuit court based upon the judgment by default is necessarily void.

Supersedeas awarded.