Alexander v. Bush

• Decision Date: 18 December 1939
• Docket Number: No. 4-5847.,4-5847.
• Citation: 134 S.W.2d 519
• Parties: ALEXANDER v. BUSH, Judge.
• Court: Arkansas Supreme Court

Page 519

134 S.W.2d 519

ALEXANDER v. BUSH, Judge.

No. 4-5847.

Supreme Court of Arkansas.

December 18, 1939.

Action in the Supreme Court by Ernest Alexander against Dexter Bush, Judge of the Clark Circuit Court, to prohibit the Clark Circuit Court from proceeding in an action by Fred Weeks against Ernest Alexander.

Petition for writ of prohibition denied.

Huie & Huie, of Arkadelphia, for petitioner.

Tom W. Campbell, of Little Rock, J. H. Lookadoo, of Arkadelphia, and Joe Norbury, of Little Rock, for respondent.

McHANEY, Justice.

Petitioner is a non-resident individual, doing business as Alexander Motor Company. On April 26, 1939, one of his agents, while driving petitioner's truck over highway 67 in this State, negligently struck and injured one Fred Weeks in the town of Hoxie, in Lawrence County, Arkansas. On November 10, 1939, Weeks brought suit against petitioner in the Clark Circuit Court, in Arkadelphia, some two hundred miles from the scene of the accident, to recover damages for the injuries he alleges he sustained. Service was had on petitioner by service on the Secretary of State, under the provisions of act 39 of the acts of 1933 (page 110). In due time, petitioner, who was promptly notified by the Secretary of State, entered his special appearance in the action and filed a motion to quash the service on the ground that said act 39, under which said service was had, was void as being in conflict with the 14th Amendment to the Constitution of the United States, U.S.C.A. The court overruled the motion to quash and petitioner brought this action in this court to prohibit the Clark Circuit Court from proceeding in the action on the alleged void service.

Petitioner insists that we should overrule our decision in Kelso v. Bush, 191 Ark. 1044, 89 S.W.2d 594, "for the reason that Act 39, of the Acts of 1933, should require that actual notice of the pendency of the suit be given to the non-resident defendant, or at least that the notice of the pendency of the suit should be left at the usual place of residence of the defendant with a member of the family over 15 years of age, as is provided for the service of summons on a resident individual defendant."

It is not suggested that petitioner did not get "actual notice" of the pendency of this action, and we think the act requires such notice to be given before jurisdiction of the defendant is acquired. The last part of section 1 thereof provides: "Service of such process shall be made by serving a copy of the process on the said Secretary of State and such service shall be sufficient service upon the said non-resident owner, provided that notice of such service and a copy of the process are forthwith sent by registered mail by the plaintiff or his attorney to the defendant at his last known address, and the defendant's return receipt or the affidavit of the plaintiff or his attorney of compliance herewith are appended to the writ or process and entered and filed in the office of the Clerk of the Court wherein said cause is brought. The court in which the action is pending may order such continuance as may be necessary to afford the defendant or defendants reasonable opportunity to defend the action."

As construed in Kelso v. Bush, supra, and as followed in Yocum v. Oklahoma Tire & Supply...