Lawrence v. Meyer , 35 Ark. 104 ( 1879 )

Harrison, J.

Leo Meyer sued G-. W. Lawrence before a justice of the peace on an account for $192.80.

The summons was returnable on the eleventh day of February, 1878, and was duly served; and, as appears from what seems to be a transcript of the entries on the justice’s docket, but which was not certified by him as such, the case was, on that day, continued until the twenty-first, when, the defendant not appearing, the justice, after waiting three hours, proceeded to hear the allegations and proofs of the plaintiff, and rendered judgment for the plaintiff for the sum claimed.

An affidavit for an appeal made before another justice, and an appeal bond, were filed on the twenty-second, but no mention of them was made in the docket, and no application to set the judgment aside appears to have been made; nor appeal granted or prayed for.

An answer — a mere formal plea of nil debet — is found among the papers as filed on the nineteenth of February, but no entry in respect to it appears to have been made by the justice in his docket. The papers mentioned were filed with the clerk of the circuit court on the twentieth day of April, 1878.

In the circuit court the plaintiff moved for a dismissal of the case, because no application had been made to set aside the judgment by default, and no appeal had been taken from it, and because there wras no case before the court, or of which it had jurisdiction. Before the motion was heard a rule was made upon the justice, at the instance-of the’ defendant, to amend the transcript, as to what defects, does not appear, but no amendment nor any response to the rule was mad'e; and the court dismissed the case for want of jurisdiction.

The defendant appealed to this court.

The appellant insists that, having filed an answer, the judgment was not by default, and no application to set it aside before appealing was necessary.

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An answer which is merely the formal plea of nil debet, or nothing more than that the defendant does not owe the debt, is but a conclusion of law, and the Code requires that the answer shall deny or state facts, and where it does neither, it is a nullity. Newm. Plead, and Prac., 510; Gwynn v. McCauley, 32 Ark., 97; Clark v. Finnell, 16 B. Mon., 329; Francis v. Francis, 18 B. Mon., 57.

And where the answer is a mere nullity, the judgment is by default. 1 Tidd., 562.

The statute requires that an application shall have been made to the justice to set aside the judgment, and been refused, before an appeal shall be granted from a judgment by default. Gantt’s Digest, sec. 3820; Page v. Sutton, Orlopp & Co., 29 Ark., 304.

The paper appearing to be a transcript from the justice’s docket afforded no evidence of the matters stated in it; but if an application to set aside the judgment was made, and refused, and appeal was taken, the justice might have been required to certify a full and perfect transcript from his docket of the proceedings inthenase.

A response by the justice to the rule upon him might have been compelled by proper steps by the appellant, but as they were not taken, we must presume it was waived and abandoned by him. Parker v. Calvert & Thompson, 16 Ark., 485.

The circuit court had no jurisdiction of the case, and it ■was properly dismissed.

The judgment is affirmed.