Knight v. Creswell

101 S.W. 754, 82 Ark. 330, 1907 Ark. LEXIS 349

• Court: Supreme Court of Arkansas
• Decided: April 8, 1907
• Status: Published

Opinion

McCulloch, J.

This is a suit in chancery to enjoin the enforcement of the judgment of a justice of the peace in an action of replevin. The ground set forth in the complaint upon which equitable relief against the judgment is sought is that if was rendered without notice, that no summons was issued, and that the plaintiff (who was defendant in said judgment) did not appear.

The judgment of the justice of the peace was, if the allegations of the complaint be taken as true, and the defect appeared upon the face of the judgment, absolutely void, and the remedy against it is complete by certiorari. If the invalidity, of the judgment did not appear on its face, then -the justice of the peace who rendered it had the power to correct it, and that remedy at law was plain. Gates v. Bennett, 33 Ark. 475; Levy v. Ferguson Lbr. Co., 51 Ark. 317. An appeal will lie to the circuit court from a refusal of the justice to amend his record. Equity will not restrain the attempted enforcement of a void judgment where the .remedy at law is complete. Shaul v. Duprey, 48 Ark. 331; Wingfield v. McLure, 48 Ark. 510.

Reversed and remanded with directions to dismiss the complaint.