American Sav. and Loan Ass'n v. Enfield

• Decision Date: 13 June 1977
• Docket Number: No. 2,No. 77-42,77-42,2
• Citation: American Sav. and Loan Ass'n v. Enfield, 551 S.W.2d 552, 261 Ark. 796 (Ark. 1977)
• Parties: AMERICAN SAVINGS & LOAN ASSOCIATION, Petitioner, v. W. H. ENFIELD, Judge, Benton Circuit Court, Respondent
• Court: Arkansas Supreme Court

Page 552

551 S.W.2d 552

261 Ark. 796

AMERICAN SAVINGS & LOAN ASSOCIATION, Petitioner, v.W. H. ENFIELD, Judge, Benton Circuit Court, Respondent.

No. 77-42.

Supreme Court of Arkansas, Division No. 2.

June 13, 1977.

Crouch, Blair, Cypert & Waters, Springdale, for petitioner.

Douglas L. Wilson of Adams & Wilson, Rogers, for Michael A. Mangione, plaintiff below.

FOGLEMAN, Justice.

American Savings & Loan Association asks us to prohibit the Circuit Court of Benton County from proceeding further in a tort action brought against the association in that court by Michael A. Mangione, a resident of Carroll County.The action was for alleged interference with a contractual agreement between Mangione and Mr. and Mrs. Charles Farley for the construction of a dwelling house for them in Eureka Springs.Summons was issued by the Clerk of the Circuit Court of Benton County and was served in that county on the manager of a branch of petitionerAmerican Savings & Loan Association in Rogers.Petitioner appeared specially and moved to quash the summons, contending that the court had no jurisdiction over its person and that the venue was improper.The court denied the motion to quash and gave petitioner 15 days to plead further.Petitioner then commenced this proceeding, questioning the venue.We find that the venue is not improper and deny the writ.

American Savings & Loan Association is a savings and loan association with its principal office or place of business in Springdale, Washington County, and branch offices in Eureka Springs, Carroll County, and Rogers.No act upon which Mangione's cause of action is based is alleged to have taken place in either Washington or Benton Counties.Petitioner contends that the venue of the cause of action is governed solely by Ark.Stat.Ann. § 27-605(Repl.1962) and thus lies in Washington County only.The circuit court, in finding venue in Benton County, held that the section relied upon by petitioner was supplemented by Ark.Stat.Ann. § 27-347(Repl.1962), which is Act 98 of 1909.We agree.

The pertinent part of § 27-605 reads:

An action other than those in §§ 84,85and90(Ark.Stat.Ann. §§ 27-601 27-603 (Repl.1962)) against a corporation created by the laws of this state may be brought in the county in which it is situated or has its principal office or place of business or in which its chief officer resides . . .

Petitioner contends that the words, "may be brought" have been construed to mean "shall be brought."Perhaps so, prior to the enactment of Act 98 of 1909.But we have not so considered these words since that act was adopted.In Beal-Doyle Dry Goods Co. v. Odd Fellows Bldg. Co., 109 Ark. 77, 158 S.W. 955(overruled on another point inAnheuser-Busch, Inc. v. Manion, 193 Ark. 405, 100 S.W.2d 672), we rejected a contention that service, in the county in which the defendant corporation had its principal place of business, issued from a county where the corporation might have had a branch office should not be quashed.The plaintiff in that case relied upon, and we recognized the applicability of, the act now in question, but said that, in order to obtain service upon a defendant under that act the record should show that service of summons was had in compliance with that act.But the record did not show that the corporate defendant had a branch office in the county from which the process was issued or that service was had in that county.

In Ft. Smith Lumber Co. v. Shackleford, 115 Ark. 272, 171 S.W. 99, the act was applied.The corporate defendant had a commissary in Perry County as an adjunct to a logging operation.Process out of the Circuit Court of Perry County was served on the employee in charge.The corporation appeared specially and moved to suppress the service.We affirmed the denial of this motion on the basis of Act 98 of 1909.

In Duncan Lumber Co. v. Blaylock, 171 Ark. 397, 284 S.W. 15(overruled on another point inAnheuser-Busch, Inc. v. Manion, 193 Ark. 405, 100 S.W.2d 672), we reversed a judgment of the Circuit Court of Scott County against a corporation, whose principal place of business was in Polk County, because the process was served on the general manager of the corporation in Polk County and not upon the manager of its operation in Scott County.The motion to quash in the trial court was based upon the fact that the corporation was domiciled and had its principal place of business in Polk County.In that case, citing §§ 27-347and27-605 and the two cases above treated, we said:

Under our statutes a domestic corporation must be sued in the county in which it is situated or has its principal office or business, or in which its chief officer resides, or in a county where it has a branch office or other place of business by service of process upon the agent or employee in charge thereof.

Petitioner casts these cases aside as dicta, insofar as the question of venue is concerned, probably because the word "venue" is not mentioned in any of the opinions.Even if we should agree with appellant's classification, we adhere to the language of Duncan, for reasons we will state.

We first note, however, that we have, in later cases read the act as we did in Duncan and its two predecessors.We reversed a refusal to quash service of summons in Chevrolet Motor Co. v. Landers Chevrolet Co., 183 Ark. 669, 37 S.W.2d 873, on the basis that service of process from Fulton County in Pulaski County, where the defendant corporation had its principal office and its chief officers resided, was insufficient basis for jurisdiction of the Fulton Countycourt, emphasizing the fact that the corporation did not keep or maintain a branch office or any other place of business in Fulton County when service was attempted.In Concrete, Inc. v. Arkhola Sand & Gravel Co., 228 Ark. 1016, 311 S.W.2d 770, we affirmed a circuit court order sustaining a demurrer to venue and jurisdiction in Benton County, where the appellant-plaintiff urged here that the trial court's action was contrary to our venue statutes.We there said:

* * * Since the act contains no venue provisions the action against defendant is governed by Ark.Stats. § 27-605 which fixes venue for actions against domestic corporations.In construing this statute along with Ark.Stats. § 27-347we have consistently held that a domestic corporation must be sued in the county in which it is situated or has its principal office or business, or in which its chief officer resides, or in a county where it has a branch office or other place of business, by service of process upon the agent or employee in charge thereof.* * *

We held that the action was not maintainable against the defendant in Benton County, and that service on the corporation in ...