Rose against Ford and others.

his return; and if executed, it must ex necessitate rei have been executed on the defendant. Otherwise it could not have been executed at all; which last position is inadmissable, because it controverts the truth of the fact stated in the return, which is always taken as true until the contrary is proved; that the defect in the return, if any, was cured by the appearance of Rose, or the statute of jeofails, and was subject to amendment either before or after judgment; and that an appeal from a judgment by default, cannot be taken by the defendant, until he has applied to the court to set aside the judgment, and his application has been overruled or denied.

pro

The law certainly presumes, that every public officer will perform his official duties according to law; and if the facts stated by the sheriff in his return of process show a legal service, as a general rule their truth cannot collaterally be questioned by the parties to the ceedings; but when the return, admitting all the facts stated in it to be true, essentially fails to show a valid legal service, we are not aware of the existence of any principle of law, or rule of practice, by which the court could be justified in presuming their existence, or supplying the omission. It is, also, as a general rule, admitted, that an officer may, by leave of the court, amend his return in form or substance, either before or after judgment, subject, however, at this time, to the important limitation of this right imposed by the 115th and 116th sections of the statute above referred to, Revised Statutes, Arkansas, page 635, which, in our apprehension, limits the right, when the amendment is made after judgment, to matters of form. And there can be no doubt that the defendant, by appearing to the action, generally waives all exceptions to the writ, and the service of the writ; or at least he is precluded thereby from taking any advantage of either.

But he has no legal right to appear to or defend the action, after final judgment is given against him; for so long as it remains in force, he is bound by it, and his rights involved in the controversy arc considered as determined. He has, in legal parlance, " no day in court;”and this was the situation of Rose, when he prayed the appeal in this case, which is now arged as an appearance, by which he is concluded from taking advantage of any defect in the service or return of the writ. We cannot, therefore, consider the prayer for an appeal as

Rose against Ford and others.

equivalent to an appearance, or regard him as having appeared to the action, so as to preclude him from the benefit of any legal objection to the return of the sheriff. The proposition stated and relied on by the defendants in error, that no appeal will lie in favor of the defendant from a judgment by default, until he has applied to the court to set aside the judgment, and failed in his application, is, in our opinion, equally untenable. By the 141st section of the statute before cited, Rev. Statutes, Ark., 638, it is enacted, "that the party ag grieved by any final judgment or decision of any Circuit Court in any civil case, may make his appeal to the Supreme Court." Other sections of the same statute prescribe the time within which the appeal shall be prayed, and define the conditions upon which it shall be granted, all of which appear to have been observed and strictly complied with by Rosc; and we do not perceive how it is possible that the provisions of the seventy-seventh section of the same Act, which authorizes the court to set aside the judgment, for good cause shown, at any time before the damages shall be assessed, and on such terms as may be just-or of the eightieth section, which provides, that whenever an interlocutory judgment shall be rendered for the plaintiff by default, or upon demurrer in any suit founded on any instrument in writing, and the demand is ascertained by such instrument, the court shall assess the damages, and final judgment shall be given thereon, cannot be considered as imposing any restriction upon the right of appeal, as given by the 141st section. One of them may, and probably does, enlarge the rights of the defendant, against whom judgment by default is given, while the other simply dispenses with the necessity of cmpannelling a jury, to inquire of damages in such cases as are embraced by its provisions, and authorizes the court to assess the damages, and give final judgment therefor; but surely neither can have any effect upon the right of appeal.

It is a principle alike essential to the preservation and security of private rights and civil liberty, that no valid judgment can be given, until the defendant or person to be bound thereby has appeared to the proceeding, or had actual or constructive notice thereof, and an opportunity of being heard in defence of his rights; and according to this principle, enforced by the provisions of the statute first quoted,

Rose against Ford and others.

ap

no judgment by default can be justified, or legally given, until it pears affirmatively by the record, or other competent legal proof, that the defendant has had actual or constructive notice of the proceeding, and failed to appear in obedience thereto; then, and not otherwise, the law considers him as making default by not appearing to answer to or defend against the charge preferred against him, and justifies an adjudication upon his rights without his presence.

Having thus presented the principles and rules by which the validity of the judgment given in this case must be determined, and stated and disposed of several propositions presented and relied on by the appellees, we will now proceed to test the return before us, by those principles and provisions of law, and determine upon its sufficiency.

The return states, that the process was executed by reading, but omits to state what was read, or to whom or at what place. The writ bears date on the 18th day of March, and the return on the 8th of April, 1839. At the date of the former, the law required the writ to be endorsed on the declaration, and that the writ and declaration should go out and be served together; and the reading or delivery of a copy to the defendant of either without the other, would not have been a sufficient service; but at the date of the return, the provisions quoted above were in force, and constituted the rule by which the officer should have acted and been governed, in the execution of the writ. And another section of the same statute provides, that the declaration shall not accompany the writ, or be served therewith. But it is evident that the declaration and writ in this case were both in the hands of the sheriff. Did he read the delaration or the writ, or did he read both of them to the defendant? Did he read them or either of them to the defendant in the county of Chicot? Does the return show satisfactorily, or with sufficient certainty, how the writ was executed," to justify” the conclusion that it was executed according to law? We think it does not. The sheriff was expressly required by law, to state in his return how, or in what manner, he executed the writ. This he has attempted to do, and we are to presume that he has set forth in his return, as many of the facts, necessary to show a valid service, as he could consistently with the truth. Yet he, contrary to the express

Rose against Ford and others.

direction of the statute, and in direct violation of his duty, if in fact the writ was executed by him according to law, has entirely omitted to state what he did read, and to show by reasonable intendment, that he read the writ to the defendant in Chicot county. These facts are material, and they, or something equivalent to them, must appear by the return, to authorize a judgment by default for the non-appearance of the defendant. But every fact stated in this return may be literally true, and the sheriff or his deputy never have read the writ to the defendant, or, if read to him, it may not have been in Chicot county; and, in either event, there would not have been a legal service. Under these circumstances, the law did not, in our opinion, justify any adjudication upon the rights of Rose, without his appearance. And, therefore, the judgment in this case given against him by the Circuit Court of Chicot county, ought to be, and is, hereby, reversed, annulled, and set aside, with costs, and the case remanded to said Circuit Court, for further proceedings to be there had according to law, and not inconsistent with this opinion, and according to the rule established and uniformly acted upon by this court. The case, when returned to the Circuit Court, must be considered and proceeded in, as though Rose had been legally served with a valid writ, more than thirty days previous to the term of the court to which the case may be regularly returned, he having voluntarily made himself a party thereto, by prosecuting his appeal to this court.

BURRISS against WISE & HIND.

APPEAL from Phillips Circuit Court.

If, after his motion to quash the writ is overruled, the defendant appears and pleada to the action, he waives all defects in the writ, if any existed.

Where, at Dec. Term, 1838, a cause was continued on account of the absence of A. and B., two of defendant's witnesses; and at May Term, 1839, another affidavit for continuance is filed by him on account of the absence of A., one of the same wit. nesses, a continuance cannot be granted, because no suit can be twice continued for the same cause.

Every affidavit for a continuance must state that the party has reason to believe that
he can procure the attendance of the witnesses by the next term of the court, or that
their testimony can be procured by that time.

In an affidavit for continuance under our statute, it is sufficient to state, that the party
expects to prove by the witnesses who are absent, the facts stated in his affidavit.
The party who, in applying for a continuance, seeks to free himself from the presump-
tion of culpable negligence, is bound to show such a state of facts or circumstances,
as will prove that he has used due diligence to obtain the testimony, or as will
take his case out of the legal inference which stands against him.
Where the affidavit states that the defendant had leave to take depositions at the
last term of the court, but could not avail himself of that leave, in consequence of
the witness having left his former place of abode, at the time when deft. intended
to have procured his deposition, to a remote part of an adjoining county; which loca.
tion the deft. was not apprized of until within the last two or three weeks, when it would
have been impossible for him to have procured his deposition in time to be read,
and the record shows that he did not apply to take the deposition until two or three
weeks prior to the trial, the court acts rightly in refusing a continuance.
In failing to apply to take the deposition before, the deft. must be considered guilty of
culpable negligence, as he shows no excuse for such failure; and he should also
have shown that he had diligently searched for and inquired after the residence of the
witness, and could not possibly find out where he resided, nor could he by any prac.
ticable means in his power procure his testimony.

Should the Circuit Court, in the exercise of their discretion as to granting or refusing
continuances, capriciously or arbitrarily sport away important rights belonging to
either party, their decisions and judgments would be examined in the Supreme Court,
and be liable to be corrected on appeal or writ of error.

But this court would not reverse a decision or judgment below, for merely granting or refusing a continuance, unless it clearly and positively appears, from the face of the record, that the court below were guilty of palpable and manifest violation of public duty, seriously prejudging the rights of the party complaining.

In order to entitle a party to a new trial, on the ground of newly discovered evidence, the affidavit in the case must show:

First, the names of witnesses whose testimony has been discovered, and the facts expected to be established by them;

Second, facts and circumstances sufficient to prove that the applicant has used due dili
gence in preparing his case for trial;

Third, that the facts and circumstances newly discovered, have come to his knowledge
since the trial, and are such, as, if adduced on the trial, would have been compe-
tent to prove the issue, and would probably have changed the verdict; and
Fourth, that the evidence discovered is not cumulative of that previously relied on,
and will tend to prove material facts, which were not put directly in issue on the
trial.

The affidavit must show affirmatively, that the newly discovered evidence is not cumu.

lative.