Wadkins v. Merchants' Bank of Vandervoort

• Decision Date: 14 November 1910
• Citation: 132 S.W. 218,96 Ark. 465
• Parties: WADKINS v. MERCHANTS' BANK OF VANDERVOORT
• Court: Arkansas Supreme Court

132 S.W. 218

96 Ark. 465

WADKINS v. MERCHANTS' BANK OF VANDERVOORT

Supreme Court of Arkansas

November 14, 1910

Appeal from Polk Chancery Court; James D. Shaver, Chancellor reversed.

Decree reversed and cause remanded.

E. J Lundy and J. S. Lake, for appellants.

1. A judgment of a justice of the peace can not be superseded after the expiration of 30 days from the rendition of the judgment. Kirby's Digest, §§ 4665, 4666, and 4667.

2. The chancery court was without jurisdiction, the appellee having a full and complete remedy at law. 52 Ark. 445; 34 Ark. 354; Id. 291; Kirby's Digest, § 3224; 8 Ark. 52; 58 Ark. 314; 48 Ark. 510; Id. 331.

J. I Allen, for appellee.

OPINION

FRAUENTHAL, J.

This was an action instituted by the appellee in the chancery court to restrain the execution of a judgment recovered before a justice of the peace, pending an appeal from said judgment. In the complaint it was alleged that the judgment was recovered against appellee before the justice of the peace on November 30, 1909, and that on the same day the appellee filed with the justice of the peace an affidavit and prayer for appeal, but did not then file an appeal bond superseding the execution of the judgment. On December 31 1909, an execution was issued on said judgment, and duly placed in the hands of the constable for service. Thereafter, and at a time more than 30 days after the rendition of the judgment, appellee presented to the justice of the peace an appeal bond with good and sufficient sureties thereon, and in sufficient amount, in order to obtain a supersedeas of said judgment pending said appeal. The justice of the peace refused to file the bond, or to recall the execution, or to stay further proceedings on the judgment. Appellee alleged that he had a meritorious defense to the cause of action upon which the judgment of the justice of the peace was founded, and sought by the present suit to restrain any further action under said execution and judgment.

To this complaint the defendants below interposed a demurrer upon the grounds: (1) that the complaint did not state facts sufficient to constitute a cause of action; (2) because the chancery court had no jurisdiction to grant the relief sought; and (3) because the plaintiff below had a full and adequate remedy at law. The court overruled this demurrer; and, the defendants refusing to plead further, a decree was entered granting the injunction asked for in the complaint.

It is urged by counsel for appellee that, in order to supersede the execution of a judgment of a justice of the peace pending an appeal, it is not necessary that the appeal bond provided by statute be given within 30 days after the rendition of the judgment appealed from, but that it may be filed and approved at any time after the expiration of such time. By article 7, § 42, of the Constitution it is provided that "appeals may be taken from final judgments of the justices of the peace to the circuit courts under such regulations as are now or may be provided by law." The Legislature has the power to fix the time within which the various proceedings must be had in order to take and perfect an appeal from the judgment of a justice of the peace; and each proceeding must be taken within the time prescribed by the statute. Thus, the affidavit for appeal from a judgment of a justice of the peace must be filed within the time prescribed by the Legislature; and the affidavit and prayer for appeal from the judgment of the probate court must be taken within the time and manner pointed out by the statute.

And likewise, when the statute fixes the time within which an appeal bond must be filed, such provision is mandatory, and it can not be filed thereafter as a matter of right in order to secure a supersedeas of such judgment. 4 Enc. Law & Prac. 847; 2 Enc. Plead & Prac. 16; Ballard v. Noaks, 1 Ark. 133; Brady v. Hamlett, 33 Ark. 105; Joyner v. Hall, 36 Ark. 513. Whether or not the sureties upon such bond, accepted, filed and approved after such time, would be estopped from pleading as a defense to an enforcement of such bond that same was not given within the time prescribed by the statute need not be here determined, because such question is not here involved.

In regard to taking an appeal from the judgment of a justice of the peace, it is provided by section 4666 of Kirby's Digest: "No appeal shall be allowed unless the following requisites...