Barton-Mansfield Company v. Higgason , 192 Ark. 535 ( 1936 )

It was held, as the majority say, in the case of Cox v. State,183 Ark. 1077, 40 S.W.2d 427, that the provisions of the act of 1931, are mandatory and so they are. Being mandatory, they should be observed and not violated; which is only another way of saying that courts are not vested with a discretion to continue, or to refuse to continue, suits in which any attorney for either party to the suit is a member of the Senate, or of the House of Representatives, or is a clerk or sergeant-at-arms or a doorkeeper of either branch of the General Assembly. But it does not follow that the judgment is void because of the error of refusing the continuance. The jurisdiction abides. Its erroneous exercise is an error which may and should be cured in the manner provided by law, pursuant to a practice long-established and well-defined.

If a justice of the peace erroneously refuses to obey this practice act, and tries a case in which an attorney is a member of the General Assembly, or a clerk or a sergeant-at-arms or a doorkeeper of either branch of the General Assembly, he commits an error by violating this mandatory statute. But the error does not render the judgment void. There was no loss of jurisdiction. A very simple and amply sufficient redress is provided, which is the right of appeal, and when that right has been invoked, the case is tried de novo. It may be unfortunate if the obstinacy, or ignorance, of the justice of peace makes this expense and trouble necessary. But, if nisi prius courts made no mistakes, there would be no necessity for appellate courts. If, when the case reaches the circuit court, the error is repeated, or, if the error is made in a case originating in the circuit court, that error may be corrected upon an appeal to this court, by ordering a new trial; not because the circuit court did not have jurisdiction, but because it had committed an error in the exercise of that jurisdiction.

There are many statutes regulating the practice in both justices of the peace and in the circuit courts. For instance, a justice of peace might erroneously refuse to allow a party to exercise the number of challenges in selecting a jury, to which the statute entitled him. He might even be denied the right of a jury trial. This would be error, but it is one which could and must be corrected by appeal. The party aggrieved could not ignore this simple remedy and have the judgment quashed on certiorari.

In, Abbott v. State, 178 Ark. 77, 10 S.W.2d 30, a defendant, who had erroneously been denied a change of venue, sought by certiorari to have the judgment of the justice of peace, who had imposed a fine after denying this right, quashed. We said this error did not vacate the jurisdiction of the justice of the peace (Kinkead v. State, 45 Ark. 536), and that the error of refusing the change of venue, and of retaining jurisdiction, could not be corrected by certiorari nor did it entitle the defendant, upon conviction, to his release on habeas corpus. This was true because relief should have been obtained by appeal.

In Ex parte Williams, 99 Ark. 475, 138 S.W. 985, a chancellor, in a habeas corpus proceeding, ordered the discharge of a prisoner who had been fined and committed to jail, after having been denied a trial by jury in the police court. Assuming the right to a jury trial existed, the court said that: "The refusal of the police court to allow a jury was merely an error which could be corrected by appeal only and that question cannot be raised on habeas corpus. Ex parte Brandon, 49 Ark. 143,4 S.W. 452."

The case of Cox v. State, supra, affords no authority for holding to be void the justice's judgment here questioned. There an accused was put to trial in the circuit court, while his attorney was serving as a member of the General Assembly. The judgment was not declared void. It was not even reversed, because the attorney had not been employed before the Legislature convened and was not the regular attorney for the defendant. We read that exception into the act because, as was there stated, it was not thought that the Legislature intended that a person indicted for a felony, even, as was the appellant in that case, might secure a continuance of his case by employing an attorney who was a member of, and already in attendance upon a session of the General Assembly. It was there stated that the act of 1933 was mandatory; but the opinion contains no intimation that the error of not observing it could not and should not be cured by appeal.

The California case of Bottoms v. Superior Court, cited and relied upon by the majority, arose under a special statutory proceeding involving the right of condemnation of property. The court there said: "The remedy herein sought is proper. There is no appeal from an order granting or refusing to grant, or, as here, setting aside an order granting a continuance of the trial of a case. Section 963, Code Civ. Proc. Such an order would reviewable on an appeal from the judgment, but the circumstances of this case obviously require a more speedy remedy than would thus be afforded. The case Chicago Public stock Exchange v. McClaughry,148 Ill. 372, 36 N.E. 88, does not hold otherwise."

The Illinois case there cited, and not disapproved, presented only the question of the effect of a refusal to grant a continuance to a litigant as required by a statute that State whose attorney was "* * * in actual attendance upon a session of the General Assembly at the Capitol of the State and had been employed by complainant as its solicitor in said suit prior to the commencement of the said session of the General Assembly and that the presence and attendance of said solicitor in court were necessary to a fair and proper trial of said case." The Illinois court held that as there was an adequate remedy by appeal, no other relief would be granted.

The case of Green v. State, cited by the majority rose under an act requiring municipal courts to grant changes of venue in certain cases, and upon certain conditions, and declaring judgments rendered in violation thereof void. In other words, municipal courts could not render valid judgments in cases on which they had lost jurisdiction. The act of 1931, here involved, contains no such provision, and does not attempt to divest the jurisdiction by filing the motion for continuance. The Green case, having arisen under a statute of different purport, has no controlling effect here. The opinion in the Green case, supra, appearing in the 155 Ark. 45, 243 S.W. 950, was handed down October 2, 1922, and was delivered by Chief Justice McCULLOCH. The opinion in the case of Sharum v. Meriwether, 156 Ark. 331, 246 S.W. 501, delivered January 8, 1923, was written by the same learned Judge. It made no reference to the Green case which was evidently regarded as inapplicable to the facts of that case. In this case of Sharum v. Meriwether, supra, the probate court had refused a jury to Sharum, who was alleged to be insane and was adjudged so to be by the court. The validity of this judgment was challenged on the ground that the record affirmatively showed that the court had refused to order a jury and had made the adjudication of insanity without the intervention of a jury. Certiorari to quash this judgment was denied although it was said that the court had abused its discretion and had committed an error in refusing to order a jury. It was so held because, as was there said, this was an error which could and should have been corrected by appeal. The reasoning leading to that conclusion was that the court had jurisdiction which was not defeated because there was an erroneous exercise of it in the proceedings. The error was one which could and should have been corrected by appeal and certiorari could not be employed as a substitute for this sufficient remedy.

I therefore dissent from so much of the majority opinion as holds the judgment of the justice of the pace to be void for the error of refusing to continue the cause on account of the absence of the attorney. I am authorized to say that Justices BAKER and McHANEY concur in the views here expressed.