Rutherford v. State Bank , 3 Ark. 558 ( 1841 )

Dickinson, J.,

delivered the opinion of the Court:

The case of Gilbreath vs. Kuykendall, 1 Ark. Rep., 50, decides the question as to the writ. It was there held, that if the process is void, a defendant is under no legal obligation to appear and answer to the action, and cannot be .considered in default for failing so to do. The statute imperatively declares, that all writs shall be sealed with the judicial seal of the Court. See ch. 2, p. 159, Rev. Stat. Ark. It is admitted by the counsel on both sides, that the transcript does not show any seal; and although we assent to the general rule, that we are bound to presume in favor of the Court below, yet that presumption only attaches when it is affirmatively shown by the record, that the Court has acquired jurisdiction over the person of the defendant in the manner prescribed by law. As well might we presume that a writ was signed by the Clerk, when his name is wholly omitted, as that a seal was affixed, when there is no evidence of it in the record; for the one is generally as necessary as the other. So we might with the same justice presume that the Sheriff had legally executed the process, because he had so stated, without showing the time and manner. This would be carrying the doctrine of presumption to an extent unknown to the common law, and which no Court would sanction. There can be no judgment, unless there is first a valid writ, and legal service of it, unless the party, by a voluntary appearance, waives his right thereto.

We can easily conceive how the word seal, or something purporting that there had been one, might in a. transcript be substituted in loco sigilli. Against two of the plaintiffs in error, viz: Allen and Thomas H. Flippin, judgment was taken by default. They have, therefore, a right to avail themselves of any irregularities in the proceedings against them. The other assignment of error it is unnecessary to notice, as we consider the writ void.

Judgment reversed, and case remanded, to be proceeded in at the next regular term of the Court below, as if the defendants were regularly served with process returnable thereto.