Milor v. Farrelly

McClure, J.,

delivering the dissenting opinion, says:

Not being able to arrive at the conclusion just announced, it becomes our duty to give the reasons for our dissent.

The chapter under which these proceedings were had, required three days’ notice, in writing, to be served on the sheriff and his securities, before the making of the motion for a judgment.

The return on the notice shows that one of the' defendants was served, by leaving a copy at his usual place of abode, with a white person of the family, over the age of fifteen years, on the fifth day of November, 1867, and that the other defendants were served, by reading the notice in their presence and hearing, on the sixth of- November, 1867.

The question now arises, was this the service required by law ? The court below said: “Whereupon, it appearing to the court that the defendants have each had three days’ notice, in loriting, according to the statute in such case made and provided, previous to filing said motion, and each of the parties being solemnly called, come not, but make default, and the court being sufficiently advised in the premises, doth consider, order and adjudge,” &c. This action of the circuit court was on the 23d day of November, 1867, being more than three days after the parties were notified.

The majority of the court are of opinion that the return of the officer, which discloses the manner in which the notice was served, contradicts the finding of the court, and shows affirmatively that the court below never obtained jurisdiction of the persons of the defendants, in the manner prescribed by law, because, they say, the law in this case required that the defendants should have been each handed a copy of the notice three days before the making of the motion for a judgment.

Every statute changing a form of proceeding, or creating additional remedies, must also recognize a great variety of existing laws, by the assistance of which the new provisions may be carried into effect, or the provisions understood and interpreted. Human wisdom could hardly devise a law, so perfect in all its parts, that would not come within this rule.

To illustrate: The chapter under consideration requires three days’ notice, in writing, to be served on the defendants, but fails to provide toho may serve that notice. Here we are compelled to search the provision of some other law tp ascertain who may serve “ notices.” Under chap. 133, of Gould’s Digest, regulating the practice at law, we find, in section 22, thefollowng : “ Whenever, in the eoriVuiencemeht of any suit, it shall be necessary to serve any notice on either party to such suit, such notice may be served either, first, by an officer, authorized by law to serve original process of the court in which such suit is to be brought or may be pending,” &c.

We conclude, therefore, that the notice may be served by a sheriff, because the object of the notice is to notify the defendants that a suit will be instituted against them by motion.

The next question arising is, how it shall be served ? By an examination of the 23d section, we find that: “ Every such notice may be served in like manner as a writ of summons.”

We now turn to the 14th section and find that“A summons may be served either by reading the writ to the defendant, or by delivering him a copy thereof, or leaving a copy thereof at his usual place of abode, with some white person of the family, over the age of fifteen years.” '

An examination of the return of the sheriff discloses that the notice, in this instance, was served in thq manner just described, and we are of opinion the service is sufficient.

The next question that now arises, is, was the service of this notice the commencement of a “ suit?” If we had any doubts on the subject, they are removed by this language, that appears in the majority opinion. ■ They sáy, “ as the general law of the State provides that suits shall be Commenced in the county where the defendants reside,” &c. Now, here they admit that the service of this notice was the commencement of a “suit;” therefore wre say, that it may be served as directed by law.

For the pui-pose of further elucidating this subject, let us examine the seventy-sixth section of chap. 68, Gould’s Digest. It reads as follows: “If an officer shall make the money in any execution specified or thereon indorsed, * * * and shall not pay over the same, * “ * he shall be liable to pay the whole amount of money made, to the person entitled thereto, with lawful interest thereon, and damages in addition, at the rate of ten per cent, per month, * * * to be recovered in an action against such officer, and' his securities on his official bond; or, the party aggrieved may proceed against sueli officer, by motion, before the court in which' the writ is returnable, in a summary manner, three days’ previous notice of such intended motion being given,” &c.

In the summary process here provided, it will be observed that the “ notice ” is not required to bo “ in writing.” Now, suppose the action had been brought against the sheriff under the provisions of this law, instead of the act of January 15, 1857, and that the plaintiff, in execution, had come into court and moved for a judgment against the sheriff, and had offex-ed to prove to the court that he, ixi the px’esexxce of witnesses,, two days before, had notified the sheriff that he ixxtended xxxaking the motion agaixxst the shex’iff for failing to pay over the money collected oxx execution.

"We apprehend, under such a state of facts, the coux-t would have said to the plaixxtiff: “ It is tx-ue that this statute does not say that this notice shall be “ in writing,” yet sec. 11 of chap. 50, Gould’s Digest, deelax’es that “ all writs, px’oeess, proceedings, and records, shall be made out oxx paper or parchment ; that this notice might justly be regarded as a process; axxd, so being, should have been made out on paper or parchment, and in writing ; that this notice, as it takes the place of a sxxmmoixs ixx aix ordinary.action, serves to show how we obtaixxed jurisdiction of the person, and must be placed on file and eoxxstitute a part of the x’ecord of the case, so that, if a superior coxxrt should be called xxpon to examine our x-eeord on error, or certiorari, such court would be enabled to find that we had obtaiixed jui-isdiction in the manner poixited out by law; that the service of process, verbally, was a thing xxnknown to the law; axxd, even if admissible, it coixld only be placed on the record by the appearance of the defendaxxt, by a bill of exceptions; and, this being a default, the jxxdgmentwould avail the plaintiff nothing, because the fact of service could xxot be placed of x’ecord.”

It will he remembered that the words, “ in writing,” do not appear in the sevexity-sixth section after the word “ notice.” Noxv, in what manuec would the sheriff have served it? "We insist that he would have been compelled to have resorted to the manner prescribed by th'e 14th, 22d and 23d sections, hereinbefore referred to-, and that almost any court in Christendom would have so held. We conclude, therefore, that the words “ in writing,” as used in the amendatory act of January 15,1857, were intended merely as descriptive of the form of notice, and not the manner of serving it, and that the Legislature never intended to change the usual mode of serving process, but simply used the Avords “ in writing,” to give the plaintiff to understand that his notice partook of the nature of a writ, and must be “ on paper or parchment,” as prescribed by section 11 of chapter 50 of Gould’s Digest.

We understand it to be the province of courts, and not only their province but their duty, in construing statutes, to consider the policy and intent of the laAV, and give it such an interpretation as may appear best calculated to advance its object and effectuate the design of the Legislature, if not in conflict with the organic law.

Now, let us apply this rule to the present state of facts. Before the passage of the law of January 15, 1857, as we have before shown, the plaintiff, in execution, had two remedies. By one, he could commence an action against the sheriff and his securities on- the bond; this action, of course, had to be commenced in the county where the sheriff’ and his securities might reside; by the other, the plaintiff could take a personal judgment against the sheriff “ before the court in which the writ is returnable.” The act of January 15, 1857, nowhere repeals the seventy-sixth section of chapter 68 ; but,by its terms, enlarges the remedy existing at the time of its passage, by allowing the plaintiff to notify, not only the sheriff, but his securities. The mere fact that the person who arranged the subjects in —the Digest did not place these acts under the same head, does not establish the fact that they are not to be construed in pari materia. The taste of that individual is no rule or guide for our judgment. These statutes are both on the same subject, and the last one creates no new and distinct remedy, but simply enlarges a remedy already existing. The majoi'ity of the court announce that, because Mr. Gould, in arranging his Digest, placed the act of January 15,1857, in a separate chapter, called “ Summary Judgments,” therefore, they are bound to construe the law as a separate and distinct act; and announce that “ the law under which these proceedings were had is silent as to where, the motion shall be made;” and finally declare that it was never intended to rule the sureties out of the county. "We concede that when the provisions of. two statutes are so far inconsistent with each other that both can not be enforced, the latter must prevail; but we contend that, if by any fair course of reasoning the two can be reconciled, both shall stand. By construing these statutes in pari materia,we are no longer left in doubt as to where the motion may be made, for it is clearly and distinctly stated that it shall be made before the court to which the execution is returnable. The argument that it would work a great hardship on the sureties to bring them into Pulaski county, on three days’ notice, has nothing to do with the law. Whether the law be politic or impolitic, or whether its provisions be strictly equitable or otherwise, are considerations which ought not to operate with the court in determining its effect. It is the duty of the court to declare, not make the law; and, in so doing, sentences and phrases ought never to be distorted in order to sustain a favorite opinion. Every provision of the statute, on the same subject, ought to be carefully examined, in order to ascertain the intention of the Legislature, and the court that rejects a portion of one statute, that should be construed in pari materia, to sustain what they conceive should be the law, must be regardless of their duty.

Pike v. Lytle, 6 Ark., 212, is relied upon as authority, from this court, to show that this action is not of a transitory nature, and that it is of the same class of cases as those of garnishment. There is no similarity between these actions. In the one case you have a judgment against the defendant, and in aid of that judgment you are allowed to inquire of every man, whether he is indebted to the defendant, and, if so, in what amount ? If he refuse to respond, you are allowed to take judgment against him. In the other, you are simply notifying him that you will take judgment against him for a liability created by the default of his principal. In the one case the law is silent as to where the writ may be sent; in the other, the law declares that the sureties shall appear “ before the court in which the writ is returnable.”

It is said that this statute is penal, and must be pursued strictly. The seventy-sixth section, before referred to, created the only penalty against the sheriff and his securities known to the law, and fixed it at ten per centum per month. The act of January dicl not and does not create a simple penalty, that was not in existence at the passage of the act. This being true, it strikes us as being strictly a remedial statute, and as such, entitled to a very liberal construction. The remedy of the plaintiff was extended to the securities of the sheriff, and he was allowed to bring them into the same forum that the seventy-sixth section allowed him to bring the sheriff.

The notice, in our opinion, is sufficient, if it sets out in plain and concise language the substance of any one of the seven causes for which a summary judgment may be taken, and it may be served by the same officer .or .person, and in the same manner, as a summons may be served.

The record of the court below, in this class of cases, need not show anything but the notice, its manner of service, the appearance or default of the defendants and the rendition of a final judgment. The motion and the proofs that aided the court in coming to its conclusions, constitute no part of the i'eeord, the 8th Porter and 1st Alabama to the contrary notwithstanding, unless they are made so by bill of exceptions. The circuit court is a court of general jurisdiction, and if the notice discloses a state of facts for which a judgment might be taken, the proof of facts, or the finding of facts, only going to establish jurisdiction, are not necessary. It is only courts of limited jurisdiction, whose judgments must show affirmatively that in their adjudications they have not gone beyond their powers.

¥e are of opinion, after much reflection : 1. That the service in this case is sufficient; 2. That all the facts, necessary to constitute a valid judgment appear of record in this ease; 3. TJiat the court had jurisdiction fcf the parties and subject matter at the time of the rendition of the judgment; and 4. That, in our opinion, the judgment ought to be affirmed.

Had we reached the conclusions as to the facts, announced 1)y the majority, we have only to say that the judgment rendered in this cause would not have been unanimous.