
    Latham vs. Jones
    Á justice’s being the iowést court known to the constitution, and possessing only ii special, limited and inferior jurisdiction, its proceedings must show such facts as constitute a case within its jurisdiction, otherwise the law regards them as coram Hon judice and void.
    The statute which requires fee plaintiff to file with the justice,- before the issuance of the summons, the instrument purporting, to have been executed by the defendant, contemplates the filing of such instrument as constituting the foundation of the action between the immediate parties to the suit.
    ít follows, therefore, that the instrument filed must either disclose upon its face such a legal interest in the plaintiff, in the subject matter of the suit, as to entitle him to maintain it in his own right, or at least to admit of evidence aliunde of his right of action.
    There is no essential difference between an entire failure to file any instrument what, ever, and the filing of one which shows no right of action in the plaintiff, nor amounts to such a showing as to admit of evidence to establish h'ls right to sue in his own ndme.
    When the justice has no jurisdiction,- the circuit court can acquire hone by appeal.
    
      Appeal from the circuit court of Randolph county.
    
    On. the 26th of December, 1844, Berryman Jones sued Thomas Latham, before a justice of the peace of Randolph county, upon the following instrument:
    “$42 90: One day after date I promise to pay David Larkin forty-two dollars and ninety cents for two jepgments in Wm. B, Hunter’s office, for value received: October 12th, 1840.
    THOMAS LATHAM, [seal.]
    WM. ARCHER, [seal.]"
    Upon the back of which was the following endorsement:
    “ Received of Berryman Jones a note on James Hunter for fifty dollars, due 25th December,, 1843: Now if Berry, don’t collect this note, I am to account to him on Hunter’s note:
    Feb’y 15th, 1841. D. LARKIN.”
    On the trial the justice gave judgment for Latham, and Jones' appealed to the circuit court. The case was determined at the April term, of the Randolph circuit court, 1845, before the Hon. Wbi. Conway B., one of the circuit judges.
    Judgment 'by default was rendered against Latham for the amount of the above obligation, and he subsequently appeared and moved to set it aside upon the ground., among others, that the ob~ ligation sued upon, nor the endorsement showed any cause of action in the plaintiff The court refused to set aside the judgment, and Latham excepted,, and appealed to this court.
    It does not appear from the transcript that when Jones deposited the obligation with the justice for suit, the justice endorsed upon it the filing, but he states in his docket entries that it was filed before the summons issued.
    Fowlek, for the appellant.
    ' The writing sued on must be filed with the justice, before process shall be issued. Rev. Slat. 494, sec. 17.
    The writing so filed is the foundation of the action, and is indispensable to show that the justice has, and to give him jurisdiction. And if the justice had no jurisdiction, the circuit court had none: nor could the appearance of the parties, or even express consent give jurisdiction. These principles have been settled by a uniform. series of decisions, and among them several decisions of this court. 1 Ark. R. 278, Fisher vs. Hall & Childress. 2 Ark. R. 60, Smith vs. Dudley — 124, Webb vs. Hanger et al. 3 Ark. R. 532, Woods ex parte. 5 Ark. R. 366, Anthony ex parte — 29, Rieves vs. Clark— 256, Moore vs. Stone. Pendleton vs. Fowler, ante 41.
    Further, the circuit court had no jurisdiction because there was no entry on the 'docket, or in the proceedings before the justice, that Jones prayed an appeal, or that an appeal was granted, without which the circuit court could not gain jurisdiction. 1 Ark. R. 205, Filis’’ admr’x vs. McFIenry — 497, Smith vs. Stinnett. 4 Ark. R. 465, Knóx et al. vs. Beirne & Burnside. Rev. Slat. 515, 516.
    But suppose the writing was duly filed, which cannot be admitted without wholly disregarding several decisions of this court above referred to as well as the statute, then the entire .paper on which the suit was founded, must of necessity be a part of the record. And if so, Jones shows no right to sue; the suit should have been brought in Larkin’s name, because there is no assignment to Jones. The endorsement can by no means amount to an assignment or authority to Jones to sue in his own name.
    By the rules of law, the circuit court instead of rendering judgment against Latham, and then refusing to set it aside, should have dismissed the case for want of jurisdiction; as by law, it was bound to do, whenever Jones prayed for a judgment against Latham.— Want of jurisdiction may be taken advantage of in any stage of the proceeding, or on error, after judgment, or in arrest of judgment, or on motion to set aside a judgment. 1 Munf. R. 161, Clarke vs. Conn. 5 Ark. R. 29, 366.
   JoiiNson, C. J.

delivered the opinion of the court.

The only question presented by the record is, whether the circuit court had jurisdiction of the case. The 17th section of chapter 87 of the Revised Statutes, provides that “ whenever any suit shall be founded on any instrument of writing, purporting to have been executed by the defendant, such instrument shall be filed with the justice, before any process shall be issued in the suit.” A justice’s court, as this court has repeatedly held, is a court of the lowest grade known to our constitution and laws. It possesses only a special, limited and inferior jurisdiction ; and therefore the proceedings therein must show or set forth such facts as constitute a case within its jurisdiction: otherwise, the law regards the whole proceeding as coram. non judice and void. The statute, in requiring the plaintiff to file with the justice, before the issuance of the writ, the instrument purporting to have been executed by the defendant, expressly and of necessity regards such instrument as constituting the foundation of the action, and that too as between the immediate parties to the proceeding. Such being the requisition of the statute, it follows as a necessary consequence that the instrument filed must cither disclose upon its face such a legal interest in the subject matter of the suit as to enable him to prosecute and maintain it in his own right, or at least to admit of evidence aliunde to establish and support such right. There can be no essential difference between an entire failure to file any instrument whatever and the filing of one which neither shows a legal right in the plaintiff to prosecute the suit in his own name, nor amounts to such a showing as to admit of evidence to establish and support such right. This was a suit instituted by Berryman Jones against Thomas La-tham upon a writing obligatory, which purports to have been executed by said Latham and one William Archer in favor of David Larkin. The judgment recites that it appeared to the satisfaction of the court that the writing had been assigned by Larkin to Jones, This is a mistake in a matter of fact, as no such assignment is to be found upon any part of the paper transcribed into the record, The most that the endorsement can amount to is, that the instrument sued upon was placed in the hands of Jones for collection; but we are not cognizant of any principle of construction by which i.t can be made to operate as a transfer of the legal interest in the subject matter of the suit, so as to enable him to prosecute it in his own name, and for his own use and benefit. The law will not presume any case or matter to be within a jurisdiction so inferior as that of a justice of the peace, unless the plaintiff shall file with the justice, before the issuance of the writ, the instrument which is to constitute the foundation of the action. The legal presumpr is the same where there is a failure to file such an instrument as will support an action between the immediate parties to the suit; or, at least, such as will admit of evidence to establish and support it. This, being the view which we have taken of this case, we feel bound to regard the proceedings of the justice as being coram non judice and consequently illegal and void. If we are correct in this, it then follows as a necessary consequence that the circuit court could not acquire any legal right by the appeal, to adjudicate the matter in controversy between the parties, and ought simply to have dismissed the case for the want of jurisdiction, without pronouncing any judgment whatever in favor of either party. We are therefore of the opinion that the circuit court erred in pronouncing judgment by default against the appellant, and consequently in refusing to set aside said judgment.

Judgment reversed and the cause remanded with instructions to qetaside the judgment and dismiss the case for want of jurisdiction.  