Grinstead v. Wilson

65 S.W. 108, 69 Ark. 587, 1901 Ark. LEXIS 129

• Court: Supreme Court of Arkansas
• Decided: October 26, 1901
• Status: Published

Opinion

Hughes, J.,

(after stating the facts). It appears from the copies of the record and proceedings of the county court in the matter of the change of the public road, as therein set out, that the petitioner for certiorari herein had no notice of any of the same; and that the land of the petitioner, W. E. G-rinstead, was ordered to be taken and appropriated for a public road, without any notice to him of the proceedings and order under which the same was to be done. Section 4190 of Sandels & Hill’s Digest provides that all judgments, orders, sentences and decrees made, rendered or pronounced by any of the courts of this state against any one without notice, actual or constructive, and all proceedings bad under such judgments, orders, sentences or decrees shall be absolutely null and void.” What more need be said ? The orders and proceedings in this case were absolutely null for the want of notice. The party whose land was to be taken had no notice of the proceedings whatever, and the whole are absolutely void. Without doubt all these proceedings were void. Should they be quashed on certiorari? Should petitioner have appealed?

The proof on the hearing of the application for certiorari is that petitioner lost his right of appeal without his fault; that he had no notice of the proceedings or orders of the court till after the time had expired when he could have appealed. Besides, it is shown that the proceedings and orders of the court are absolutely null and void. Wherefore certiorari is the proper remedy to quash these void proceedings and orders. Where there is a want of jurisdiction below or an excess of it apparent on the record, certiorari is the appropriate, if not the only, remedy. Baxter v. Brooks, 29 Ark. 173. “Errors in assumption of jurisdiction are properly correctable on certiorari.” Flournoy v. Payne, 28 Ark. 97. The assumption of unauthorized jurisdiction will be corrected by writ of certiorari. Ex parte Pearce, 44 Ark. 509; Baskins v. Wylds, 39 Ark. 347. It cannot be used for the correction of mere errors, as a substitute for an appeal. Id.; Pettigrew v. Washington County, 43 Ark. 33.

Finding that the court below had no jurisdiction of the person of the appellant in this case for the want of notice to him, and that its proceedings and judgment in this cause are void, the judgment is quashed.-