Arkansas Highway Commission v. Holt

Decision Date29 April 1935
Docket NumberNo. 4-3874.,4-3874.
Citation81 S.W.2d 929
CourtArkansas Supreme Court

Carl E. Bailey, Atty. Gen., Thomas Fitzhugh, Asst. Atty. Gen., and Neill Bohlinger, of Dardanelle, for petitioner.

S. W. Woods, of Harrison, for respondent.

SMITH, Justice.

W. P. McGeorge is a construction contractor operating under the name of W. P. McGeorge & Co., and in that name he entered into a contract with the State Highway Commission to construct certain improvements on United States Highway No. 65, a part of the state highway system in Searcy county, in and upon the lands of Perry Holder. This suit was filed by Holder as owner of the land against both the contractor and the State Highway Commission in the circuit court of Searcy county to recover damages resulting from the improper construction of the improvement in the following particulars: The contractor had put in and had fired unnecessarily heavy shots of dynamite in the construction of the improvement, which shattered a bluff of stone in such a manner as to destroy a spring of water on the land. For this alleged act of negligence Holder brought this suit in the Searcy circuit court to recover the damages to the land resulting from the destruction of the spring against both the contractor and the State Highway Commission.

McGeorge was served with a summons in Jefferson county, and he first filed a demurrer to the complaint. Before the demurrer was disposed of he filed an answer controverting all the allegations of the complaint, without questioning the jurisdiction of the court.

The State Highway Commission, through an Assistant Attorney General as its attorney, signed a waiver of the issuance and service of summons upon the commission and entered the appearance of the commission.

The commission has objected to the jurisdiction of the circuit court in Searcy county to entertain a suit against it for the damages alleged, and has filed in this court a petition for a writ of prohibition to restrain the prosecution of that suit against it.

The issuance of the writ is resisted by the plaintiff Holder upon the ground that as the action is one for damages to real estate it has been localized by section 1164, Crawford & Moses' Dig., and can be brought only in Searcy county, the county in which the land is located; and it is insisted that the Highway Commission has, by the entry of its appearance, been made a party defendant for all purposes. This section of the statutes provides that actions for an injury to real property must be brought in the county in which the subject of the action is situated.

The question here presented is not the right of the plaintiff to sue the contractor in Searcy county for the damage to the real estate. He is not a party to this proceeding, and is asking no relief here. The question is whether the Highway Commission may be made a party to that suit as a joint tort-feasor; and also the effect of the entry of its appearance.

In the case of Arkansas State Highway Commission v. Dodge, 181 Ark. 539, 26 S.W. (2d) 879, we discussed the theory upon which the commission might be sued at all in relation to construction contracts which it had made in connection with the state highway system. The holding in that case has...

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