American Hardwood Lumber Company v. Ellis & Co

• Decision Date: 07 December 1914
• Docket Number: 31
• Citation: 171 S.W. 899,115 Ark. 524
• Parties: AMERICAN HARDWOOD LUMBER COMPANY v. ELLIS & CO
• Court: Arkansas Supreme Court

171 S.W. 899

115 Ark. 524

AMERICAN HARDWOOD LUMBER COMPANY v. ELLIS & CO

No. 31

Supreme Court of Arkansas

December 7, 1914

Appeal from Calhoun Circuit Court; T. J. Gaughan, Special Judge affirmed.

Judgment affirmed.

J. W Warren, for appellant.

1. As to the item of $ 396.31 set up in the amendment to the complaint, it was a separate cause of action, and, being such, judgment upon it could not properly be accelerated by filing it as an amendment. The rule is that where a distinct cause of action is added to the complaint, the right to proceed upon the complaint as amended, so far as service is concerned, requires service or notice after filing of the amendment.

2. The service was not sufficient to fix the venue for the trial of this cause in Calhoun County. The venue is fixed by section 6072 of Kirby's Digest, unless it be held that sections 825 and 834 of said Digest are to be taken as amending the provisions of section 6072 insofar as they relate to the venue in cases against foreign corporations. But in those two sections there is no indication of a purpose to change the venue. Had that been the intention, it would have been wholly unnecessary to require a corporation to designate its principal place of business, the only purpose of such designation being to establish its domicile. The domicile having been established, the venue was thereby fixed, and service had upon the agent anywhere within the State was intended to draw the person of the corporation into the venue fixed by the place of its domicile.

Neither did the Calhoun Circuit Court have jurisdiction of appellant under Act 98, approved April 1, 1909. 60 Ark. 578.

C. L Poole, for appellee.

The evidence shows that appellant, a foreign corporation, complied with the law, section 825, Kirby's Digest, by filing with the Secretary of State, a certificate naming J. S. Gaunt as its agent, upon whom service of process might be had. Service upon him as such appointed agent was sufficient, and conferred jurisdiction upon the Calhoun Circuit Court of said corporation. Kirby's Dig., § 834; 69 Ark. 396; 84 Ark. 574; 95 Ark. 591.

OPINION

MCCULLOCH, C. J.

Appellant is a Missouri corporation and has complied with the laws of this State by designating an agent upon whom service of summons and other process may be made, in accordance with the statutes of this State which prescribe the terms upon which foreign corporations may transact intrastate business here. Kirby's Digest, § 825. The corporation maintains an office in Saline County, Arkansas, which is designated as its principal place of business, and the designated agent resides there. Appellee is doing business in Calhoun County in this State, and instituted this action against appellant in the circuit court of that county to recover on account for the price of carloads of lumber aggregating the sum of $ 1,252.48, together with interest. Summons was issued, directed to the sheriff of Saline County, and the writ was by the sheriff of that county served upon the agent designated by appellant corporation. Subsequently, appellee filed an amendment, exhibiting a further account for the price of another carload of lumber aggregating $ 396.31, which fell due after the commencement of the action, and prayed for judgment for that additional amount. Appellant appeared by its counsel and put in a special plea directed against the service of the summons outside of the county wherein the action was instituted, and, when the court overruled the plea, saved its exceptions. Appellant declined to plead further, and, upon testimony being introduced in support of the account sued on, judgment was rendered in appellee's favor for the full amount set forth in the original complaint and the amendment thereto. Appellant filed its motion for a new trial, which was overruled, and an appeal was duly prosecuted.

The contention is that the statute does not authorize the service upon the designated agent of a foreign corporation outside of the county where a transitory action is instituted, and that the service should have been quashed. The statute provides that service of summons upon the designated agent of a foreign corporation "at any place in this State shall be sufficient service to give jurisdiction over such corporation to any of the courts of this State, whether the service was had upon said agent within the county where the suit was brought or is pending or not." Act March 18, 1899, Act 65, p. 116, Acts 1899, Kirby's Digest, § 834. The contention, as we understand it, is that it was not intended by the lawmakers to give jurisdiction to any county in the...