Hartley v. Tunstall , 3 Ark. 119 ( 1840 )

Ringo, Chief Justice,

delivered the opinion of the Court:

The question as to the validity of these writs depends mainly upon the construction to be given to 5th sec. of the 116th chap. of the Rev. St. Ark., which provides, that “ where there are several defendants in a suit, instituted by summons or capias, and they reside in different counties, suit may be brought in either of such counties, and a separate writ may be issued to each county against such of the defendants as reside therein; and when a defendant in a suit instituted by attachment has property in several counties, separate writs of attachment may be issued to each county; and when there are several defendants in a suit, a capias may be issued against one or more of them that are liable thereto, and a summons may be issued against the others.” The plaintiff insists that the writs in question are warranted by and issued in pursuance of statutory provisions. But, in our opinion they do not conform to the provisions of the statute, nor -are they authorized by it, because the language used surely does not justify the conclusion that any of the separate writs, authorized by the statute to be issued, shall be issued against^ all of the defendants, but on the contrary, each separate writ, where .the defendants reside in different counties, must, according to the express reading and evident design of the law, be issued against such defendants only as reside in the county to which the writ is issued, and if it were otherwise, all of the defendants might be harassed with the service of each separate writ, and be legally served several times with process to answer the same demand, and costs would, in any event, be increased if the practice of issuing writs as adopted in this case was authorized and established; and thus the defendants might be subjected to an additional burden and inconvenience both useless and illegal. We, therefore, are of the opinion that the writs were improvidently and illegally issued, and ought to have been superseded or quashed, on the motion of the defendants; and if the court had simply quashed or superseded them, the decision could not, in our opinion, have been questioned or disturbed. But the court, instead of stopping at that point in the proceeding, as it should have done, pronounced final judgment against the plaintiff, “ that he take nothing by his suit, and that the defendants go hence, without day, and recover of the plaintiffs all the costs in and about this suit expended,” which is, in every respect, both in form and substance, a judgment in bar of the action itself, and not a legal consequence from, or warranted by the premises. For, as the defendants had never appeared to the action, and were not parties to the suit legally before the court, so that a valid judgment could be pronounced against them even for costs, or so that their rights would have been bound by any adjudication upon the premises, of course no valid judgment could be rendered in their favor against the plaintiff. And it may not be improper to remark here, that the judgment for costs is rendered in favor of the defendants for all of the costs in and about the suit expended, when if they had been entitled to any judgment whatever for costs, it would have been legally rendered for such costs of the suit as had been expended by the defendants, without embracing also the costs on the part of the plaintiff. The judgment is therefore reversed with costs.