Arkansas.

Acts online

. (page 38 of 51)
Online LibraryArkansasActs → online text (page 38 of 51)
Font size
QR-code for this ebook


which shall be taxed and collected as other costs in the case,
together with his costs for making out such transcript.

Sec 23. Be it further enacted^ That if the justice of the
peace to whom the papers are so transferred cannot immedi-
ately upon the reception and filing of the same proceed to try
said case, it shall be his duty at once to fix a time therefor, of
which all paHies shall take notice.



Digitized by VjOOQ IC



ACTS OF ARKANSAS. 439

Sec. 24. Be it farther enacted^ That after the parties appear
and tSie isflues have been made up, the matters in controversy
may be submitted by them to the justice; but if a jury shall
be demanded by either party, the justice shall order a jury to
be forthwith summoned and impaneled to try the action.
Such jury shall be composed of six jurors, who shall be quali-
fied as required in circuit courts; but a less number may be
agreed upon by the parties.

Sec. 25. Be it farther enacted, That in the formation of
such jury each party shall be entitled to three peremptory
challenges, and any deficiencies in the number of jurors sum-
moned, arising from any cause, may be supplied by summon-
ing others in their stead.

Sec 26. Be it farther enacted, That the justice shall admin-
ister to each juror an oath well and truly to try the matter

in controversy between ,' plaintiff, and , defendant,

and a true verdict give according to the evidence, unless dis-
charged by the justice.

Sec. 27. Be it farther enacted, That after the jury arc sworn
they shall sit together and hear the allegations and proofs of
the parties, which shall be delivered publicly in their pres-
ence, and they must all agree to the verdict..

Sec 28. Be it farther enacted, That if a witness, on being
produced, shall be objected to as incompetent, or his testi-
mony when offered as irrelevant, such objections shall be
heard and determined by the justice.

Sec. 29. Be it faHher enacted, That every person offered
as a witness, before any testimony shall be given by him,
shall be duly sworn that the evidence he shall give relating

to the matter between , plaintiff, and , defendant,

shall be the truth, the whole truth, and nothing but the truth.

Sec 30. Be it farther enacted^ That either party may ex-
amine the other on oath, and for that purpose may cause him
to be summoned to attend the trial if he resides in the county,
or if he resides out of the county may file written inter-
rogatories with the court or magistrate before whom the
trial is to be had, together with an affidavit that he believes



Digitized by VjOOQ IC



440 ACTS OF ARKANSAS.

the answers to them are necessary to liis obtaining justice,
and cause a copy of said interrogatories to he delivered to the
party required to answer them, who shall make out, swear to
and file witli such court or magistrate, on or before the day of
trial, a plain, direct response to tlie interrogatories which may
be read by either party.

Sec 31. Be it further mactal^ That the court shall render
judgment against the party who refuse to attend and be ex-
amined, when summoned two days before the trial, or to make
proper responses to interrogatories when a copy shall have
been delivered to him three days before the trial, when he re-
sides within fifty miles of the place of trial, and one additional
day for every thirty miles he may reside therefrom ; but the
court may grant further time for attending or answering.

8ec. 82. Be it fnrther enadtd^ That the last two sections^
shall apply to circuit courts upon the trial of appeals from
judgments of justices of the peace.

Sec. 88. Be it further enacted, That when the jurors shall
have agreed upon their verdict, tliey shall deliver the same to
the justice publicly, who shall enter it on his docket.

Sbc. 34. Be it further enacted, That whenever a justice shall
be satisfied that a jury sworn in a cause before him, after hav-
ing been out a reasonable time, cannot agree on their verdict,
he may discharge them, and shall issue immediately a new
summons for another to appear, at a time therein fixed, not
more than three days distant, unless the parties consent that
the justice may render judgment upon the evidence already
before him, which in such case he may do; or unless they
consent that the new trial, upon a new hearing of the evidence
to be adduced by the parties, shall be by the justice.

Sec. 85. Be it further enacted. That if the plaintift' fails to
appear by himself, his agent or attorney, on the return day of
the summons, or at any other time fixed for the trial, the jus-
tice may dismiss the action for want of prosecution, except in
case provided in next section.

Sec. 86. Be it further enacted, That when the suit is founded
on an instrument of writing purporting to have been exe-



Digitized by VjOOQ IC



ACTS OF ARKANSAS. 441

cuted by the defendant, in which the demand of the plaintiff
is liquidated, if the signature of the defendant is not denied
under oath, and if the instrument lias been filed with the jus-
tice previous to the day for appearance, he may proceed with
the cause whether the plaintiff appear or not, and such instru-
ment of writing shall be competent proof in the case.

Sec. 37. Be it further enacted,, That in the case provided for
ill the last section, if the defendant does not appear in obedi-
ence to the summons, judgment shall be rendered against him
for the amount of the plaintiff 's^ claim.

Sec. 38. Be it further efiactedj That when the plaintiff^'s
claim is not founded on such written instrument, and the de-
fendant does not appear, the justice shall proceed to hear the
allegations and proofs of the plaintiff, and shall render judg-
ment thereon for the amount to which he shows himself enti-
tled, not exceeding the amount claimed in the action.

Sec. 39. Be it further enacted, That in the cases contem-
plated in the last two sections, if the defendant has previously
filed a set-off, founded on a written instrument, purporting to .
have been signed by the plaintiff*, calling for a certain sum, if
the signature of such plaintiff' is not denied under oath, the
justice shall allow such set-off" in the same manner as if the
defendant had aj^peared, and shall render judgment accord-
ingly-

Sec 40. Be it further enacted, That a judgment of dismissal
for want of ])rosecution, or judgment by default, may be set
aside by the justice at any time within ten days of being ren-
dered, if the party applying therefor can show a satisfactory
excuse for his default, and a meritorious cause of action or
meritorious defense, whereupon a new day shall be fixed for
trial, and notice given to the opposite party, and any execu-
tion which may in the meantime have been issued, shall be
recalled in the same manner as in cases of appeal; and the

cause shall proceed to trial as though no such judgment had
been taken.

Sec. 41. Be it^ further enacted. That a new trial or rehear-
ing may be granted by a justice of the peace (except on trial



Digiti



zed by Google



442 ACTS OF ARKANSAS.

by jury), upon motion made within ten days aft^r a judgment
or final order has been made or rendered, of which motion
notice rshall be given to the opposite party : Providedj That
no motion for a new trial or a rehearing in a cause tried by a
jury shall be entertained by a justice of the peace.

Sec. 42. Be it further enacted^ That in cases of dismissal
for want of prosecution, confession, or on the verdict of ajury,
the judgment shall be rendered and entered upon the docket
forthwith^ In all other cases the same shall be done within
three days after the cause is submitted to the justi<?e for final
action.

Sec. 43. Be it further enacted^ That a set-oft* or counter
claim, though exceeding in amount the jurisdiction of the
court,- may be used to bar and extinguish the demand of the
plaintiff, but no judgment shall b6 rendered in favor of the de-
fendant for the excess, unless such excess is within the limits
of the court's jurisdiction as to amount. The judgment shall
ascertain the amount due to the plaintiff, and give him a credit
therefor on the claim used as a set-off or counter-claim.

Sec. 44. Be it further enacted^ That mutual judgment be-
tween the same parties, rendered by the same or difiereut jus-
tices, may be set-off against each other.

Sec. 45. Be it farther enacted^ That when such judgments
are rendered by the same court, the justice shall strike the
balance as it appears from the judgments on his docket, and
issue executions therefor in favor of the party to whom the
same appears to be due.

Sec 46. Be it further enacted^ That if the judgment pro-
posed to be set off was rendered by another justice, the party
offering it must obtain a transcript thereof, with a certificate
of the justice who rendered it indorsed thereon, stating that
no appeal has been taken, and that the transcript was obtained
for the purpose of being used as a set-off in that case. But
such transcript shall not be given until the time for taking an
appeal has elapsed.

Sec 47. Be it farther enacted^ That the justice so giving a



Digitized by VjOOQ IC



ACTS OF ARKANSAS. 443



transcript shall make an entry in his docket, and all other
proceedings in his court shall he stayed.

Sec. 48. Be it farther enacted ^ That when such transcript is
presented to the justice who has rendered a judgment between
the same parties, as aforesaid, if execution has not been issued
on the judgment rendered by him, he shall strike a balance
between the judgments, and issue execution for such balance.
Sec. 49. Be it farther enactted^ That if, at the time of filing
«uch transcript, execution has already issued, the justice of
the peace shall also issue execution on the transcript filed
^with him, and deliver it to the same officer who has the other
execution, and such officer shall treat the lesser execution as
so much cash collected on the larger, and proceed to collect
the balance then found due.

Sec. 50. Be it farther enacted y That when the judgment is
allowed to be set oft', as in this act provided, the transcript
thereof shall be filed among the papers of the case in which
it is so used, and the proper entry made in the justice's docket.
But if the justice refuses the judgment as a set-oft', he shall so
eertify on the transcript, and return it to the party who offered
it, and when filed in the office of the justice who gave it, pro-
<3eedings may be held by him in the same manner as if no
such transcript had been certified by him.

Sec. 51. Be it farther enacted, That the costs in suits where
mutual judgments have been obtained shall not be set off un-
less the balance of cash actually collected on the longer judg-
ment be sufficient to pay the costs of both judgments, and
such costs shall be paid therefrom accordingly.

Sec. 52. Be it farther enacted. That the rules and proceed-
ings governing confessions of judgment, as the same may
apply to the circuit courts in this state, be and the same are
hereby made to apply to justices' courts.

Sec. 53. Be it farther enacted^ That hereafter executions for
the enforcement of judgments in a justice court, except when
filed in the clerk's office of the circuit court of the county in
which the judgment was rendered, may be issued by the jus-
tice before whom judgment was rendered on the application



Digiti



zed by Google



444 A CT^ OF ARKANSA S.



of the i»arty entitled thereto nt any time within five year^
from the entry of the judgment, but not afterwards.

Sec. 54. Be if farf/ttr (/tacfat, That nueh execution shall
be against tlie goods and chattels of the person against whom
the same is issued, and shall be directed to any constable of
the county. It must be dated, as on the day on which it i&
issued and made returnable within tliirty days thereafter, and
may be substantially in the form used in the circuit court.

Sec. 55. Be it farther e?)aetedy That if any sum be found
in favor of a party, either by verdict of a jury or upon a
.hearing of the cause before a justice, exceeding the sum for
which the' justice is authorized to give judgment, such party
may remit and release the excess and take judgment for the
residne, but shall never thereafter be allowed to institute any
suit for the recovery of such excess so remitted and released.

Sec. 38. Jic it further cHacted, Tliat from and after the pas-
sage of this act the execution upon a judgment rendered by
a justice of the peace for any sum under the jurisdiction of
justices of the peace may be stayed in manner and form as
follows: ProviJed, That the stay upon all sums under said
jurisdiction shall be three months.

Sec. 57. Be it further enacted^ That if all the parties agree
upon any other period the stay shall be for the time so agreed
upon.

Sec. 58. Be it further enacted, That to entitle any persoK
to such stay of execution some responsible person, to be ap-
proved by the justice, not being a party to the judgment must,
within ten days after the rendering of the judgment, enter
into an obligation before the justice to the adverse party, in
a sum snificient to secure the payment of the judgment, con-
ditioned to be void on i>ayment of such judgment expiration
of the stay.

Sec. 51). Be it further enacted , That such obligation must
be signed by the party entering into the same, and be attested
by the justice before whom it may be taken, and shall have
the same force and effect as a judgment rendered by a justice
of the peace, and it may be in the following form: I, ^



Digitized by



Goqgle



ACTS OF ARKANSAS. 445



ackiiowledfice myself indebted to in the sum of

iiollars, to be void iijion this condition. AVhkuea.s, ob-

taiiied a judgment before , a justice of the peace of

township, in the county of , on the day of



, 18 — , against . Xow, if sucli judgment shall be

paid at the expiration of months from the time it was

rendered, this obligation shall be void. Approved : , J. P.

And the justice shall file such obligation among the papers
in the case and make a note in his dock(»t on the day Jlnd
date thereof.

Sec. ()0. JJr if furthir vnartcd. That if the plaintift' or his
agent will make oath before the justice rendering the judg-
ment, that he has reason to believe that tlie defendant is
secreting his property, or is putting it out of 'his hands for
the purpose of defrauding his just creditors, and that be veri-
ly believes the debt will be lost if execution be not immedi-
ately issued ; in all such cases the justice shall immediately
issue execution on such judgment whether the ten days
allowed in this act for entering into obligation for the stay of
execution have ex|)ired or not.

Sec. 61. Be it farther enacted^ That if any plaintitt", in any
judgment rendered before a justice of the peace, and when
execution has been stayed, will satisfy the justice before
whom an obligation for such stay may have been entered
into by affidavit or evidence that such obligation or the secu-
rity therein is insufficient; and that unless execution be im-
mediately issued on such judgment he will be in danger of
losing his debt, such justice shall immediately issue execu-
tion regardless of the stay.

Sec 62. Be it further enadcd^ That in all cases where execu-
tion shall be stayed or any judgment rendered by the justice of
the peace under the provisions of this act, such judgment shall
be a lien upon all the personal property subject to execution,
belonging to the defendant at the time of the rendition of
the judgment.

Sec 63. Be it farther enacted, That if at the expiration of
the stay any judgment be not paid, the execution shall bo



Digitized by VjOOQ IC



446 ACTS OF AUK ANSA S.



issued agaiust Loth urincipul and security; and if tlie princi-
pal do not satisfy the execution, and the oftieer cannot find
sufficient i^roperty belonging tr) hini uj»on wliich to levy, he
shall levy upon the proi)erty and the bail, and in his return
shall state wliat amount of the money collected by him on
the execution was collected from the bail, and tlie time the
same was received.

Sec. i\\. Be it further (nartnl^ That after the return of such
execution, the bail shall be entitled, ui)on motion, to a judg-
ment before the justice for the amount collected from him
in satisfaction of such execution, with interest thereon at the
rate of ten per centum per annum, and the return of the
officer shall be evidence of the amount of money paid by the
bail;

Sec. 05. Be iffurt/ur vnactcd^ That no such motion shall be
made after the expiration of four months from the return
day of such execution.

Sec. 6G. Be it further enacted ^ That if ar judgment be stayed
in the manner hereinbefore prescribed after an execution
shall have been issued thereon, the justice shall revoke said
execution in the same manner and with like effect jis he is
hereinafter directed to revoke an execution after an appeal
has been allowed.

Sec. G7. Be it further enacted^ That no stay shall be allowed
against any collecting officer, or attorney at law or agent, for
a delinquency or default in executing or discharging the
duties of his office or place, or for failing to pay over money
collected by him in such capacity, or against a principal by
his surety on a stay bond or otherwise, or on a judgment for
specific property, or for the property or its value. In the
cases mentioned in this section in which a stay is not allowed,
the justice shall note the same on his docket on the day of the
rendition thereof.

Sec. 68. Be it further enacted^ That every justice, on the

demand of any person in whose favor he shall have rendered

judgment for more than ten dollars, exclusive of costs, shall,

\ upon payment of costs thereon, give to such person a certi-



Digitized by VjOOQ IC



ACTS OF ARKANSAS. 447

fied copy of such judgment, and the clerk of the ^rcuit court
of the same county in which the judgment was rendered
shall, upon the production of any such transcript, file the
same in hiB office, and forthwith enter such judgment in the
docket of the circuit court for judgment and decrees, and
shall note therein tlie time of filing such transcrij)t.

Sec. 69. Be it farther enoeted^ Tliat every such judgment,
from the time of filing the transcript thereof, shall be a lien
on the real estate of the defendant in the county, to the same
extent as a judgment of the circuit court of the same county,
and shall be carried into execution in the same manner and
with like eflTect as the judgments of such circuit courts :
Provided^ That no such transcript sliall be filed, and no exe- '
cution shall be sued out of the circuit court on such judg-
ment, until an execution shall have been issued by a justice,
and returned that the defendant has no goods or chattels
thereof to levy the same.

Sec. 70. Be it farther enacted^ That upon every judgment
rendered by a justice of the peace, execution shall be issued
by such justice in the manner herein prescribed, at any^time
on demand, unless the same shall have been stayed.

Sec. 71. Be it farther enacted, That hereafter, whenever a
justice of the peace in any township in any county in this
state, before whom a judgment has been obtained, and upon
whose docket the same appears against any person or persons,
shall be absent from his office so that he cannot be founds or
shall have resigned or died and no successor been appointed,
or when there is a judgment on the docket against such jus-
tice, it shall be the duty of any other duly qualified and act-
ing justice of the peace in said township, or in said county,
at the request of the plaintifl? arvd said judgment, or at the
request of said plaintiflT's attorney or agent, or of the consta-
ble or other officer having the collection of the judgment, to
issue an execution upon said judgment against the party ^
against whom said judgment was obtained, and the same pro-
ceedings shall be had thereon as fire now prescribed by law.

Sec, 72. Be it further enacted^ That in order to carry out



Digiti



zed by Google



448 ACTS OF ARKANSAS.

the provisions of section seventy-one, it sliall be the duty of
every jiistic^ of the peace before whom a judgment has been
obtained, whenever lie is about to be absent from liin town-
ship or county for more than ten days, or has resignoci and
his successor not been appointed, to deposit, or cause* to ba
deposited, liis docket with tUe nearest justice of the j^oace in
liis township, or county; and when so deposited it shair be
lawful for the justice witli whom the docket is deposited,
upon application as provided in section seventy -one, to issue
an execution upon any judgment which appears upon said
docket unsatisfied^ against any person or persons.

Sec. 73. Be it ftrrther cnadedy That when such otlier jus-
tice as contejnplated in this act sliall issue an execution upon
a judgment rendered upon the docket of another justice, said
execution shall commence in the following form:



County of



I,



Thk State of Arkansas,

To'a)i]) Comfabh of the Township of , Greeting:

Whereas, It appears from an examination of the docket

of , a justice of thfe peace in and for the township of

; , in the county of , in the State of Arkansas;

that , on the-^ day of , 18 — , obtained judg-

Higiit before said justice against for dollars,

for his debt, (or damages) and dollars for his dam-
ages, and ajso dollars for his costs; and, whereas,

an execution has been ordered out on said judgment by

said : — (or his attorney, agent or constable, charged

with the collection of the same, as the case may be)

which judgment bears interest at the rate of 1^^^'

cent, on debt and damages from its date. You are therefore
commanded to levy the same of the goods and chattels of the
said according to law. You are further corn-



Digitized by VjOOQ IC



ACTS OF ARKANSAS. 44&

mandedto return this writ to the undersigned justice, on the-

day of 18—.

Given under my band this day of — y

18 .

, J. P.

Sec. 74. Be it further enacted^ That it may be lawful for any
justice of the peace in the same township, in the absence of the^
justice of the peace before whom the judgment has been ob-
tained against any person or persons, when so requested by
the persons provided for in section seventy-one, after he shall
have examined said judgment on the docket of said absent
justice of the peace, to issue an execution on the same, aa
before provided for.

Sec. 75. Be it further enacted, That the execution shall be
directed to the constable of the township where the justice-
resides, unless when it is otherwise specially provided, and
shall be dated on the day it is issued, and shall be made re-
turnable in thirty days after its issuance.

Sec. 76. Be it further enacted^ That before any execution
shall be delivered, the justice shall state in his docket, and
also on the back of the execution an account of debt, dam-
ages and costs and of the fees due to each person separately,
and the officer receiving such execution shall indorse thereon
the time of receiving the same. \

Sec. 77. Beit further enacted^ That in case the defc ulant
resides out of the towfiship where the judgment was rendered,
or has not snfficientgoods and chattels therein to satisfy such
judgment, the constable to whom the ex.ecution is directed
may levy the same upon the goods and chattels of the de-
fendant in any township in said county where the defendant
resides and where his goods and chattels may be found.

Sec 7&. Be it further enacted, That from and after the pas-
sage of this act an execution rendered by a justice of the
peace, an execution issuing and returned not satisfied, it shall
be the duty of the justice to renew all such executions by in-
dorsing the same on such execution to that effect, signed by
him and dated when the same is made.
29



Digitized by VjOOQ IC



450 ACTS OF ARKANSAS.



Sec. 79. Be it further enactedy TJiat every such indorsement
shall renew the execution in full force, in all respects for
twelve months and no longer. And an entry of such renewal
shall he made in the docket of the justice: Provided^ That such
execution so docketed shall be subject to be acted upon at
any time at the instance of the plaintiff in all such cases as
provided for.

Skc. 80. Be it farther enacted^ That if part of such execu-
tion has been satisfied, the indorsement of renewal shall
express the same [sum] due on such execution.

Skc. 81. Be it further enacted^ That the constable after
taking goods and chattels into his custody, by virtue of an
execution, shall without delay give public notice by at least



Online LibraryArkansasActs → online text (page 38 of 51)