Arkansas Coal, Gas, Fire-Clay & Manufacturing Co. v. Haley
| Decision Date | 07 March 1896 |
| Citation | 34 S.W. 545,62 Ark. 144 |
| Parties | ARKANSAS COAL, GAS, FIRE-CLAY & MANUFACTURING COMPANY v. HALEY |
| Court | Arkansas Supreme Court |
Appeal from Ouachita Circuit Court, CHARLES W. SMITH, Judge.
Thomas Haley sued the Arkansas Coal, Gas, Fire-Clay & Manufacturing Company, a domestic corporation. Summons was issued and returned served on R. Hibbard, "agent of the Arkansas Coal, Gas, Fire-Clay & Manufacturing Company." Defendant appeared specially, for the purpose of moving to quash the service of summons. The motion was denied, and defendant appealed.
Judgment reversed and cause remanded.
Gaughan & Sifford for appellant.
1. A defendant can enter his appearance for the purpose of objecting to service, without giving jurisdiction for purposes of judgment in personam. 5 Ark. 517; 11 id. 301; 28 S.W. 424.
2. Defendant being a domestic corporation, service cannot be had upon an agent, unless the president is absent. Sand. & H. Dig. sec. 5669.
3. Judgment without service is absolutely void. Sand. & H. Dig. sec. 4190; 48 Ark. 334; id 349; id. 500; 45 id 271; 49 id. 411.
4. An agent's authority cannot be established by his own statements or admissions. Mechem on Agency, sec. 100; 31 Ark. 212; 46 id. 222.
5. Judgment cannot be taken for want of an answer on an open account, without evidence, unless the same is properly verified. Sand. & H. Dig. sec. 2972.
The return upon the summons issued by the clerk in this action does not show a legal service upon appellant, because it fails to state that its president or other chief officer was not to be found in the county of Ouachita. Sand. & H. Dig. sec. 5669; Cairo & Fulton Railroad Co. v. Trout, 32 Ark. 17, 23; Same v. Rea, 32 Ark. 29; Southern Building & Loan Association v. Hallum, 59 Ark. 583, 28 S.W. 420; St. L.d, I. M. & S. Ry Co. v. Barnes, 35 Ark. 95; Bruce v. Arrington, 22 Ark. 362.
The judgment of the circuit court is reversed, and the cause is remanded for further proceedings. Appellant will be treated as in court, by reason of the prosecution of this appeal, and will have leave to answer the complaint.
Bunn, C. J., being disqualified, did not sit in this case.
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