Carolan v. Carolan

• Decision Date: 06 November 1886
• Citation: 2 S.W. 105
• Parties: CAROLAN <I>v.</I> CAROLAN.
• Court: Arkansas Supreme Court

2 S.W. 105

CAROLANv.

CAROLAN.

Supreme Court of Arkansas.

November 6, 1886.

Appeal from Logan circuit court.

T. C. Humphry, for appellant. Clendenning & Read, for appellee.

COCKRILL, C. J.

The appellee sued the appellant upon an open account, duly verified, before a justice of the peace. The appellant appeared on the return-day of the summons, and filed an answer, but the justice, conceiving that the answer was of a nature that required verification, caused it to be stricken from the files upon motion of the plaintiff's attorney, and refused to hear evidence from the defendant to sustain the allegations of the answer that had been stricken out; and, as the defendant did not offer to amend or answer further, judgment was rendered against him. After the time for appeal from this judgment had expired, the defendant petitioned the circuit court to quash the judgment upon certiorari. The transcript from the justice's docket, which accompanied the petition, set forth the facts as stated above. The petition offered no excuse for not prosecuting the appeal, and it was dismissed upon demurrer. The petitioner seeks to reverse the judgment of dismissal.

The justice of the peace had jurisdiction of the cause of action, and of the person of the defendant, and any irregular or erroneous act on his part is no more than erroneous exercise of jurisdiction, and does not make the judgment rendered liable to be successfully assailed collaterally, or quashed upon certiorari. Nor can the writ of certiorari be used for the correction of errors as upon appeal. Ex parte Pearce, 44 Ark. 509.

The record does not show affirmatively that no proof was taken upon the rendition of judgment; and, in the absence of such showing, the presumption is that the justice performed his duty in that respect. St. Louis, I. M. & S. Ry. v. Barnes, 35 Ark. 95. Moreover, the statute authorizes the rendition of judgment upon a verified account without other proof of its correctness, (Hershy v. Yantes, 46 Ark. 498;) but, if we should regard the indebtedness upon the account as denied, and the burden of proof upon the plaintiff, it was nevertheless only error in procedure, according to the decision in Railroad Co. v. Barnes, supra, for the justice to render judgment in such a case without proof, and does not subject the judgment to quashal upon certiorari. But the writ of certiorari should not be issued in any case where there has been a right of appeal, unless the right of appealing has been...