Crooker Shoe Co. v. Fry ( 1904 )

REYBURN, J.

On April 10, 1903, plaintiff, respondent herein, brought an action upon an account against defendant, appellant herein, before a justice of the peace in Pike county, and recovered judgment by default from which an appeal was taken to the Louisiana court of common pleas. Upon trial anew, appellant admitted the correctness of the account sued on, but interposed as his defense the plea of former adjudication, and substantiated it by establishing that. on March 31, 1903, respondent instituted an action against him before the same magistrate on the same account, and the summons issued and service was had on that date, made returnable April 9, 1903, when the justice rendered judgment by default for the amount asked. On April 10th the justice, at request of plaintiff, set aside the judgment as invalid for want of proper service, and the respondent instituted the second action above detailed. From judgment for plaintiff in the court of common pleas, defendant has appealed.

The justice’s court being of statutory origin, was circumscribed and confined within the bounds of the provisions of the statute, and could not transcend the powers and authority thereby conferred. Section 3969, R. S. 1899, prescribes when and in what manner a justice shall have power to set aside a judgment by default. The action of the justice in setting aside the first judgment was not empowered by the statute and was without jurisdiction and the judgment remained in full force. The statute authorized this judgment to be set aside by the justice at instance of defendant or his agent but not otherwise.

In Leonard v. Sparks, 117 Mo. 103, the Supreme Court in an exhaustive opinion arraying the conflicting authorities in this State and other jurisdictions, considered the effect of a judgment of a justice rendered upon service within and less than the period provided by law, and held such judgment valid and not subject to attack collaterally because of the insufficiency of the service. It follows, therefore, that the judgment of the

trial court was erroneous and it is reversed.

Bland, P. J., and Goode, J., concur.