Allred v. National Old Line Ins. Co.

• Decision Date: 23 December 1968
• Docket Number: No. 5--4789,5--4789
• Citation: 435 S.W.2d 104,245 Ark. 893
• Court: Arkansas Supreme Court
• Parties: June ALLRED, Petitioner, v. NATIONAL OLD LINE INS. CO., Respondent.

Page 104

435 S.W.2d 104

245 Ark. 893

June ALLRED, Petitioner, v. NATIONAL OLD LINE INS. CO., Respondent.

No. 5--4789.

Supreme Court of Arkansas.

Dec. 23, 1968.

Walker & Campbell, Harrison, and H. Paul Jackson, Berryville, for petitioner.

J. Loyd Shouse, Harrison, Lloyd B. McCain and Clyman E. Izard, Jr., Little Rock, for respondent.

FOGLEMAN, Justice.

June Allred has filed a petition for a writ of certiorari seeking to review the action of the trial court in quashing service of summons and refusing to enter a default judgment in her favor. Petitioner had filed suit in the Circuit Court of Boone County against the National Old Line Insurance Company and the Harrison Federal Savings and Loan Association on May 3, 1967. Summons was directed to National Old Line Insurance Company and Harrison Federal Savings and Loan Association and was served May 3, 1967, on Betty Yarbrough in Boone County as agent for the respondent. ¹ On July 14, 1967, respondent filed motion to quash service of summons on the grounds that Betty Yarbrough was not an officer, agent or employee of respondent and that she was not authorized to receive or accept process on its behalf.

On November 14, 1967, after a hearing was held, the trial court determined that Betty Yarbrough was not a proper agent for service and granted the motion to quash. The court found that it had jurisdiction and that new service should be had upon respondent's admitted agent in Boone County. It also said that the respondent should have the regular statutory period within which to plead or, in the alternative, defendant could, if it so elected, plead further without requiring the expense and necessity of new service.

On November 21, 1967, respondent filed an answer and cross-complaint without any other process having been issued. On November 28, 1967, petitioner entered a motion to strike the answer and cross-complaint for the reason that it was filed out of time and that there was no basis in law for allowing it to be filed, reserving her objection to the court's decision on November 14. Petitioner also requested that a default judgment be entered in her favor. The court held that it had been without authority in allowing respondent to answer without new service of process and that petitioner's entitlement to default judgment had been decided in the order of November 14. The court, therefore, granted the motion to strike the answer and cross-complaint but did not dismiss the complaint or enter judgment for costs in favor of respondent.

Rather than cause new process to be issued petitioner filed this petition. We ordered the complete record brought up so that we could adequately determine the questions raised by petitioner.

Petitioner argues two points for the granting of the writ. We deem it necessary to consider only one of them. It is stated by petitioner thus: 'An order sustaining a motion to quash is not final and is not therefore, an appealable order and the only remedy available to petitioner is a writ of certiorari.'

We agree with petitioner that in this case the order sustaining the motion to quash the issuance of the summons is not final and is therefore not appealable. Robberson v. Steele Canning Co., 233 Ark. 988, 349 S.W.2d 814; Harlow v. Mason, 117 Ark. 360, 174 S.W. 1163. There are some cases which appear upon superficial examination to be in conflict with the above, but we feel that they are distinguishable.

For an order of a trial court to be appealable to the Supreme Court it must be final. Ark.Stat.Ann. § 27--2101 (Repl.1962). In Johnson v. Johnson, 243 Ark. 656, 421 S.W.2d 605 was said, 'For a judgment to be final and appealable, it must in form or effect: terminate the action; operate to divest some right so as to put it beyond the power of the court to place the parties in their former condition after the expiration of the term; dismiss the parties from the court; discharge them from the action; or conclude their rights to the matter in controversy.' If an order of the trial court meets the above test then it is appealable.

In Hogue v. Hogue, 137 Ark. 485, 208 S.W. 579, the court allowed an appeal from an order quashing service where the trial court had also granted a judgment that the defendant go hence without day. Commenting on the appealability of orders quashing service of summons the court said, 'On the other hand, if the trial court quashes the writ, the plaintiff may take an alias summons and thereby waive objection to the judgment of the court; or he may rest upon the quashal of the writ and appeal from the judgment of the court quashing the summons and permitting the defendant to go hence without say, or, what amounts to the same thing, dismissing the plaintiff's action.'

In Bank of State v. Bates, 10 Ark. 631, the order quashing the writ was held to be appealable because the trial court quashed the summons and allowed a judgment for costs, the effect of which was to dismiss the parties from the court.

The court in Berryman v. Cudahy Packing Company, 189 Ark. 1151, 76 S.W.2d 956 allowed an appeal from an order quashing service where the trial court had subsequently dismissed the complaint.

An order sustaining defendant's motion to quash service of summons was held to be appealable in Yocum v. Oklahoma Tire & Supply Co., 191 Ark. 1126, 89 S.W.2d 919. The court there observed, 'The record here reflects that appellant elected to stand upon the service of process first had and obtained, and this was tantamount to a dismissal of the complaint and a final order from which an appeal lies.'

In Safeway Stores v. Shwayder Bros., 238 Ark. 768, 384 S.W.2d 473, the trial court sustained a motion quashing the service and the summons on the grounds that the...