Ford v. Adams

• Decision Date: 17 January 1891
• Citation: 15 S.W. 186,54 Ark. 137
• Parties: FORD v. ADAMS
• Court: Arkansas Supreme Court

15 S.W. 186

54 Ark. 137

FORD v. ADAMS

Supreme Court of Arkansas

January 17, 1891

APPEAL from Desha Circuit Court, JOHN M. ELLIOTT, Judge.

Judgment affirmed.

J. W Dickinson for appellant.

The justice certainly had jurisdiction of the subject matter, and hence the only question is, did he acquire jurisdiction of the persons? Mansf. Dig., secs. 4986-7-8, would seem to settle this.

As to errors in assumption of jurisdiction, the office and scope of certiorari and the remedy by appeal, see 28 Ark. 87; 37 id 318; 44 id., 509; 43 id., 341.

Murphy & Gates for appellees.

This being a proceeding under a "special statute" (Mansf. Dig., secs. 4986-7-8), its provisions must be strictly followed; every fact necessary must be affirmatively shown. 64 N.C. 132. The action was commenced by filing a complaint and issuing summons, and as the jurisdiction is governed by sec. 4029 Mansf. Dig., the service was void. If those sections were ever the law they are repealed by sec 4035 Mansf. Dig.

Nor is there any allegation that the boat was "found" in Desha county, and nothing in the record to show it. Certiorari was the proper practice. 39 Ark. 347; 28 id., 87.

OPINION

HUGHES, J.

Appellant filed a complaint against appellees before a justice of the peace of Desha county, Arkansas. stating that appellees were indebted to him in the sum of $ 67.30, and claiming $ 30 damages, alleging that the appellees were part owners of the steamboat James Lee, and had chartered said steamer, and were running her on the Mississippi river, carrying freight and passengers for hire, and that they were responsible for contracts made by themselves or her master, Mark Cheek, who was running said boat as a common carrier; that the appellant, on the 15th day of January, 1889, by his agent, delivered upon said boat, at Arkansas City, a lot of goods and merchandise of the value of $ 67.30, to be carried for a consideration, and to be delivered at Stormville, Mississippi, a way landing between Memphis and Arkansas City; that the said goods were not delivered at Stormville. Summons was issued upon the filing of the complaint, by the justice of the peace, directed to any constable of Desha county, commanding him to summon appellees to appear before said justice on the 15th day of July, 1889, and answer the complaint, which summons was served on appellee, John D. Adams, at Little Rock, Arkansas, by the sheriff of Pulaski county, and on appellee, James Lee, at Memphis, Tennessee, by one Jesse Williams, whose return was sworn to. On the return day judgment by default was rendered against appellees, who brought up to the Desha circuit court by certiorari the proceedings before the justice of the peace. The circuit court found that the justice did not acquire jurisdiction of the persons of the appellees, and ordered that the judgment be quashed, to which appellant excepted and appealed.

Section 4986 of Mansfield's Digest provides that "When any action to recover judgment against the owners or officers of any steamboat, or vessel, or other water craft, for any debt or liability created by them, or either of them, shall have been commenced in any county in which said steamboat, vessel or water craft was found, and, from any cause, the summons or other process cannot be served in such action in the county where such action was commenced, a service in any other county in this State shall have the same effect as if made in the county where the action was brought." Section 4987 provides that "Where a defendant is out of this State, the plaintiff may take a copy of the complaint certified by the clerk, with a summons annexed thereto, warning such defendant to appear," etc. Section 4988 provides that "The certified copy and summons, with affidavit and certificate, as provided in the last section, being returned and filed in the action, shall be deemed an actual service of the summons in due time for trial at the first term commencing not less than sixty days after...