Butler, J.
This action originated in tbe court of the justice of peace within and for Drew County, Arkansas. It was filed on January 22, 1935, and resulted in a judgment on March 1, 1935, in favor of plaintiff, Barton-Mansfield Company. During all that time the General Assembly was in session, Hon. W. F. Norrell being the senator from the................................................ senatorial district composed of Drew and' Desha counties. Upon the return day of the summons the defendant,. Higgason, secured a continuance until February 4th, and again until February 11th. These dates appear to have been fixed by the justice for the reason that Senator Norrell was in the habit of coming down to Monticello to spend the week-end at his home. On the 11th of February the justice was ill and the case was continued until March 1st. On that day the plaintiff appeared and announced ready for trial while the defendant (quoting’ from the justice’s docket) “announces not ready and makes a motion for continuance until after the Arkansas Legislature adjourns and Senator W. F. Norrell, his attorney, returns to Monticello, Arkansas, which motion was by the court overruled, the court considering the same unreasonable and unfair to the plaintiff.” The judgment then recites the taking of testimony on the part of the plaintiff, and that the defendant was given an opportunity to present his evidence but refused to do so. Thereupon the court proceeded to render judgment in favor of the plaintiff, and the defendant prayed and was granted an appeal.
On May 18, 1935, the defendant filed a petition for writ of certiorari in the circuit court of Drew County, alleging the facts hereinbefore recited and, as a defense, that the cause of action was identical with a suit which had been filed before in the court of Gr. T. Sikes, a justice of the peace in and for Drew County, and that in said cause before said justice judgment had been rendered in his favor which judgment he plead as res judicata. On motion of the Barton-Mansfield Company certain paragraphs of the petition for certiorari were stricken by the trial court, and a demurrer to the petition was overruled. At the hearing of the petition, both parties introduced testimony after which the court granted the prayer of the petition, quashed the judgment and ordered “that the justice of the peace * * * be directed to retain jurisdiction of said cause, and for further proceedings, * * * J ?
Barton-Mansfield Company, the appellant, as conclusive of the action of the justice, relies on the fact that Senator Norrell could not have been employed in the case before the convening of the Legislature because the suit was not filed until after the Legislature had convened. In support of this contention the case of Cox v. State, 183 Ark. 1077, 40 S. W. (2d) 427, is cited. That ease upheld the action of the circuit court in refusing to grant a continuance in a criminal prosecution where it was alleged, as a cause for same, that a member of the Arkansas Legislature, then in session, was employed by the defendant to represent him. This motion was based on act No. 4 of the Acts of 1931, % 430, Castle’s 1931 Supp. to Crawford & Moses’ Digest. This act provides that in suits pending in any of the courts of this State, in which an attorney for either party is a member of the General Assembly, proceedings shall be stayed for not less than fifteen days preceding the convening of the General Assembly, and for thirty days after its adjournment, unless otherwise requested by any interested member of the General Assembly.
In the case of Cox v. State, supra, the court held that the trial court did not err in refusing to grant the continuance where under the circumstances of that case the attorney was employed after the proceedings had been instituted although he was a member of the Legislature at the time of such employment. In commenting upon the facts, the court recognized the right of litigants in proper cases to have a continuance under the provisions of act No. 4, stipra, but said that “where a person is indicted after the meeting of the Legislature charged with the commission of a crime at a time after the meeting of the Legislature, he cannot, by merely employing an attorney who is a member of the Legislature, have his case continued, without any showing as to when the employment was made or that the member of the Legislature is his regular retained attorney. If this was the meaning of the statute, all any person charg*ed with crime in any of the courts would have to do to get a continuance would be to file a motion alleging that he had employed a member of the Legislature to try his suit. ’ ’ It was noticed by the court that the attorney, who was a member of the Legislature, and alleged to have been employed, made no request for a continuance, and did not communicate with the trial court in any way. That court, and this one on appeal, as is clearly implied by the language used in the opinion, concluded that the allegation in the motion for continuance was a mere subterfuge adopted for the purpose of securing the continuance. In the case of Bottoms v. Superior Court, etc., 82 Cal. App. 764, 256 Pac. 422, in considering a question similar to the one here presented, and under a statute of like import as our own, the court said: “If it be shown that- the party to the action claiming the benefit of that provision of said section has other attorneys of record in the case capable of managing it in court, or that some attorney, a member of the Legislature, had been employed for no other purpose than to secure to a party the benefit of the provision in question from sinister or improper motives, then, in either such cases, particularly in the last suggested, a continuance should not be granted.”
In the Cox case, supra, the court expressly recognized the right to a continuance, not only where an attorney had been employed prior to the meeting of the Legislature, but where “if one’s regular attorney is a member of the Legislature and suit should arise, the party would have a right to a continuance on account of his attorney being’ in attendance upon the Legislature. ’ ’
It is clear that Senator Norrell was the regular attorney of the appellee, Higgason, having represented him in all matters for as long as ten years prior to the filing of the instant suit, and that he was peculiarly acquainted with the facts 'involved. The justice, in overruling the motion for a continuance, did not base his action on the time or nature of the senator’s employment, but on the fact that he considered the motion “unreasonable and unfair to the plaintiff.”
It would then appear that the defendant in the justice court was entitled to a continuance under the provisions of the statute, and the question remaining for our consideration is what is the effect of the judgment rendered by the justice? The'statute is quoted at length in the case of Fox v. State, supra, and from its provisions it would seem that all proceedings in any suit should be stayed when it is brought to the attention of the court that an attorney representing one of the litigants is a member of, and in attendance on, the General Assembly.
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Butler, J.
This action originated in tbe court of the justice of peace within and for Drew County, Arkansas. It was filed on January 22, 1935, and resulted in a judgment on March 1, 1935, in favor of plaintiff, Barton-Mansfield Company. During all that time the General Assembly was in session, Hon. W. F. Norrell being the senator from the................................................ senatorial district composed of Drew and' Desha counties. Upon the return day of the summons the defendant,. Higgason, secured a continuance until February 4th, and again until February 11th. These dates appear to have been fixed by the justice for the reason that Senator Norrell was in the habit of coming down to Monticello to spend the week-end at his home. On the 11th of February the justice was ill and the case was continued until March 1st. On that day the plaintiff appeared and announced ready for trial while the defendant (quoting’ from the justice’s docket) “announces not ready and makes a motion for continuance until after the Arkansas Legislature adjourns and Senator W. F. Norrell, his attorney, returns to Monticello, Arkansas, which motion was by the court overruled, the court considering the same unreasonable and unfair to the plaintiff.” The judgment then recites the taking of testimony on the part of the plaintiff, and that the defendant was given an opportunity to present his evidence but refused to do so. Thereupon the court proceeded to render judgment in favor of the plaintiff, and the defendant prayed and was granted an appeal.
On May 18, 1935, the defendant filed a petition for writ of certiorari in the circuit court of Drew County, alleging the facts hereinbefore recited and, as a defense, that the cause of action was identical with a suit which had been filed before in the court of Gr. T. Sikes, a justice of the peace in and for Drew County, and that in said cause before said justice judgment had been rendered in his favor which judgment he plead as res judicata. On motion of the Barton-Mansfield Company certain paragraphs of the petition for certiorari were stricken by the trial court, and a demurrer to the petition was overruled. At the hearing of the petition, both parties introduced testimony after which the court granted the prayer of the petition, quashed the judgment and ordered “that the justice of the peace * * * be directed to retain jurisdiction of said cause, and for further proceedings, * * * J ?
Barton-Mansfield Company, the appellant, as conclusive of the action of the justice, relies on the fact that Senator Norrell could not have been employed in the case before the convening of the Legislature because the suit was not filed until after the Legislature had convened. In support of this contention the case of Cox v. State, 183 Ark. 1077, 40 S. W. (2d) 427, is cited. That ease upheld the action of the circuit court in refusing to grant a continuance in a criminal prosecution where it was alleged, as a cause for same, that a member of the Arkansas Legislature, then in session, was employed by the defendant to represent him. This motion was based on act No. 4 of the Acts of 1931, % 430, Castle’s 1931 Supp. to Crawford & Moses’ Digest. This act provides that in suits pending in any of the courts of this State, in which an attorney for either party is a member of the General Assembly, proceedings shall be stayed for not less than fifteen days preceding the convening of the General Assembly, and for thirty days after its adjournment, unless otherwise requested by any interested member of the General Assembly.
In the case of Cox v. State, supra, the court held that the trial court did not err in refusing to grant the continuance where under the circumstances of that case the attorney was employed after the proceedings had been instituted although he was a member of the Legislature at the time of such employment. In commenting upon the facts, the court recognized the right of litigants in proper cases to have a continuance under the provisions of act No. 4, stipra, but said that “where a person is indicted after the meeting of the Legislature charged with the commission of a crime at a time after the meeting of the Legislature, he cannot, by merely employing an attorney who is a member of the Legislature, have his case continued, without any showing as to when the employment was made or that the member of the Legislature is his regular retained attorney. If this was the meaning of the statute, all any person charg*ed with crime in any of the courts would have to do to get a continuance would be to file a motion alleging that he had employed a member of the Legislature to try his suit. ’ ’ It was noticed by the court that the attorney, who was a member of the Legislature, and alleged to have been employed, made no request for a continuance, and did not communicate with the trial court in any way. That court, and this one on appeal, as is clearly implied by the language used in the opinion, concluded that the allegation in the motion for continuance was a mere subterfuge adopted for the purpose of securing the continuance. In the case of Bottoms v. Superior Court, etc., 82 Cal. App. 764, 256 Pac. 422, in considering a question similar to the one here presented, and under a statute of like import as our own, the court said: “If it be shown that- the party to the action claiming the benefit of that provision of said section has other attorneys of record in the case capable of managing it in court, or that some attorney, a member of the Legislature, had been employed for no other purpose than to secure to a party the benefit of the provision in question from sinister or improper motives, then, in either such cases, particularly in the last suggested, a continuance should not be granted.”
In the Cox case, supra, the court expressly recognized the right to a continuance, not only where an attorney had been employed prior to the meeting of the Legislature, but where “if one’s regular attorney is a member of the Legislature and suit should arise, the party would have a right to a continuance on account of his attorney being’ in attendance upon the Legislature. ’ ’
It is clear that Senator Norrell was the regular attorney of the appellee, Higgason, having represented him in all matters for as long as ten years prior to the filing of the instant suit, and that he was peculiarly acquainted with the facts 'involved. The justice, in overruling the motion for a continuance, did not base his action on the time or nature of the senator’s employment, but on the fact that he considered the motion “unreasonable and unfair to the plaintiff.”
It would then appear that the defendant in the justice court was entitled to a continuance under the provisions of the statute, and the question remaining for our consideration is what is the effect of the judgment rendered by the justice? The'statute is quoted at length in the case of Fox v. State, supra, and from its provisions it would seem that all proceedings in any suit should be stayed when it is brought to the attention of the court that an attorney representing one of the litigants is a member of, and in attendance on, the General Assembly. In construing the effect of the statute, in that case we said: “At common law applications for continuance were addressed to the sound discretion of the court, but, under the statute above quoted it is mandatory upon the court to grant a continuance when it is made to appear to the court by proper showing that the defendant had employed his attorney prior to the convening of the Legislature, and at the time set for trial his attorney was in attendance upon a session of the Legislature.” To the same effect was the holding of the court in Bottoms v. Superior Court, etc., supra, and in that case a judgment of the lower court was quashed on certiorari where the defendant had invoked the provisions of the statute, and his motion for continuance had been overruled.
It is argued that certiorari cannot be invoked because the defendant had the right of appeal which was lost by his own negligence. If the judgment of the justice was void, certiorari is a proper remedy even though the judgment might have been vacated and set aside on appeal. Fayetteville v. Baker, 176 Ark. 1030, 5 S. W. (2d) 302. In Gregg v. Hatcher, 94 Ark. 54, 125 S. W. 1007, a judgment of the justice court was quashed on certiorari where the justice had proceeded in excess of his jurisdiction.
In Green v. State, 155 Ark. 45, 243 S. W. 950, a judgment of the municipal court was quashed on certiorari, this court holding that where a motion.for change of venue had been filed in compliance with the statute, the court was deprived of jurisdiction to proceed further in the case except to make an order changing the venue. The reason for this holding was the peculiar language of the statute which was mandatory in its nature, the effect of which was to prevent any further action by the municipal court after the motion for change of venue had been made except to order the change of venue as prayed.
It is clear, from the imperative language of the statute now under consideration, that all proceedings should be stayed until thirty days after the adjournment of the General Assembly, and that any other action by the lower court would be in excess of its jurisdiction. Therefore, when the court, in this case, ignored the motion for continuance in violation of the express provision of act No. 4, supra, and proceeded to render judgment, it exceeded its jurisdiction, and where this was made to appear to the circuit court it was within its sound discretion to grant the writ prayed for and to quash the unauthorized judgment of the justice court. Reese v. Cannon, 73 Ark. 604, 84 S. W. 793.
It is contended here that no formal writ was served upon the justice or response made by him. The record shows that the justice appeared in the circuit court bringing with him his docket and the original papers in the case when he was advised of the filing of the petition without requiring the issuance and service upon him of the writ. The purpose of the writ was served when the justice appeared in the circuit court with his docket and the original papers which constituted a waiver on his part of the formal proceeding, and we find no objection made to this which has been preserved in the record.
The judgment of the trial court works substantial justice and leaves the case where it may be tried and determined upon its merits. As we view the effect of the statute, we are also of the opinion that the action of the lower court in quashing the judgment of the justice court is correct, and it is therefore affirmed.
Smith, McHaney and Baker, JJ., dissent.