Shaul v. Duprey

• Decision Date: 26 February 1887
• Citation: 3 S.W. 366,48 Ark. 331
• Parties: SHAUL AND ANOTHER v. DUPREY
• Court: Arkansas Supreme Court

3 S.W. 366

48 Ark. 331

SHAUL AND ANOTHER v. DUPREY

Supreme Court of Arkansas

February 26, 1887

APPEAL from Lee Circuit Court, Hon. M. T. SANDERS, Judge.

Decree affirmed.

H. N Hutton, for appellants.

The judgment rendered at the spring term, 1884, was full and complete, and under it a partial satisfaction has been made. The judgment at the October term was likewise a full and complete judgment, and not within the scope or authority of the circuit court to render same as a nunc pro tunc order. The second judgment is void, no notice having been given to appellants, nor opportunity given them to show what satisfaction had been made upon the original judgment.

OPINION

SMITH, J.

The object of this bill was to enjoin the execution of a judgment which was alleged to be void for want of notice.

From the bill, answer and exhibits, it appeared that one Richardson, having been found guilty of a criminal offense by a justice of the peace, had taken an appeal, giving a supersedeas bond with plaitniffs as his sureties; that he was again convicted in the circuit court and judgment rendered against him and his sureties for a fine of $ 200 and costs but by some clerical misprision, the judgment was in fact entered against Richardson alone; that at the next term the court, without any notice to the parties to be affected, had undertaken by a nunc pro tunc entry to amend its record to show a judgment against the sureties as well as Richardson, and for satisfaction of such judgment, an execution had been issued and placed in the hands of Duprey the sheriff of the county, under which the property of the plaintiffs had been seized.

At the hearing the circuit court dismissed the bill.

In appeals from justices of the peace in criminal causes, where the judgment has been superseded, sec. 2435 of Mansf. Dig. authorizes the rendition of judgment, in case of conviction, against the principal and sureties in the bond without further notice. According to cases of Rogers v. Brooks, 31 Ark. 194, and Freeman v Mears, 35 Ark. 278, the judgment against the sureties might be entered at a subsequent term without notice to them. If those cases are correct, the decree dismissing the bill is obviously correct. If, on the other hand, it be conceded that those cases were wrongly decided, sec. 3910 of Mansf. Dig., requiring proceedings to correct misprisions of the clerk to be on reasonable notice to the adverse party, and sec. 5201, declaring all judgments rendered without notice to be...