Berryman v. Cudahy Packing Company

• Decision Date: 26 November 1934
• Docket Number: 4-3604
• Citation: 76 S.W.2d 956,189 Ark. 1151
• Parties: BERRYMAN v. CUDAHY PACKING COMPANY
• Court: Arkansas Supreme Court

76 S.W.2d 956

189 Ark. 1151

BERRYMAN v. CUDAHY PACKING COMPANY

4-3604

Supreme Court of Arkansas

November 26, 1934

Appeal from Pope Circuit Court; A. B. Priddy, Judge; reversed.

Judgment reversed, and cause remanded.

Robert Bailey, for appellants.

Hays & Smallwood, for appellee.

OPINION

MEHAFFY, J.

The appellants began this action in the Pope Circuit Court against the Cudahy Packing Company, a corporation, the Cudahy Packing Company of Louisiana, Ltd. and Claude Westerfield. The complaint alleged the injury and death of Robert Ross Berryman, by the negligence of the appellee through its agent and employee, Claude Westerfield. When the complaint was filed and summons issued against the Cudahy Packing Company, the summons was served on Claude Westerfield, agent. There was a second summons issued and served upon the Secretary of State, and the third summons was served upon the Auditor of State.

The Cudahy Packing Company of Louisiana, Ltd., filed an answer and the suit was dismissed as to it. The Cudahy Packing Company, without entering its appearance for any other purpose, filed a motion to quash service of each summons.

It is the contention of the appellees that the order of January 11, 1934, is not a final order, and that therefore the question of whether service on Westerfield was valid is not before the court. They cite Hogue v. Hogue, 137 Ark. 485, 208 S.W. 579. It is true the court said in that case that, where the motion to quash the summons was denied, that was not a final order from which an appeal could be prosecuted, but the court also 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 defendant to go hence without day, or, what amounts to the same thing, dismissing the plaintiff's action."

The court also said in the same case: "The circuit court sustained the motion, and it was adjudged that the writ be quashed and that the defendant recover costs. The judgment was held to be final and appealable. On the question of practice the court said in effect that on the quashing of the writ the plaintiff may take an alias writ or he may rest and appeal."

In the instant case when the court made the order quashing the writ served on Westerfield, the appellants appealed. Of course the complaint could not be dismissed because two other summonses had been issued and served, and there was a motion to quash the service of each of these, and, until those motions were passed on, the court could not dismiss the complaint. The order of the court was final and appealable. Of course, if appellants had procured an alias summons, this would have been a waiver of their objection to the court's order, but they did not do this. The other summonses had already been issued, and there was nothing appellants could do except to pray an appeal; but, if this order had not been final, it became final when the complaint was dismissed.

Appellees next call attention to the case of Harlow v. Mason, 117 Ark. 360, 174 S.W. 1163. The court in that case said: "There is a conflict in the authorities as to whether an order of a court quashing a summons is such a final order as that an appeal will lie, and there is some apparent conflict in the early decisions of this court upon that question."

The court in this case also said, in discussing other cases: "In both these cases however, as well as in that of the State, use, etc. v. Adams, it was decided that the legal effect of the judgment quashing the writ was a dismissal of the case. This being the effect of the judgment, the parties are necessarily dismissed from the court, and, unless the decision of the circuit court is reversed or set aside, there is no remedy afforded them."

When the court made its order quashing the writ served on Westerfield, appellants objected and prayed an appeal to the Supreme Court. The order made by the court in quashing this summons was all that could be made at that time, and the complaint was in fact thereafter dismissed. But the order quashing the summons put the appellants out of court so far as this summons was concerned.

It is next contended that the service on Claude Westerfield was not sufficient because Westerfield was a mere salesman for appellees. To support this contention they cite W. T. Adams Machine Co. v. Castleberry, 84 Ark. 573, 106 S.W. 940. In that case the court said: "There is no allegation in the complaint as to whether the appellant is a partnership, a foreign or domestic corporation. * * * The summons was served as shown by the return, upon T. W. Barnes, agent. Barnes was only a traveling salesman. He had no control over the business of the corporation, and service upon him was not sufficient."

Appellees next call attention to the case of Arkansas Construction Co. v. Mullins, 69 Ark. 429, 64 S.W. 225, and the case of Lesser Cotton Co. v. Yates, 69 Ark. 396, 63 S.W. 997. In the first case referred to, the court said: "The character of the agent nowhere appears in the record, and the simple fact that he was agent (it may be without any representative character from which authority might and ought to be implied on his part to receive service) is not sufficient." In the Lesser Cotton Company case the contention was made that, unless the foreign corporation appointed an agent, no service could be had except by publication, and the court said: "It is incredible that the Legislature should have intended to limit its own citizens to such an insufficient remedy, when the corporation is actually doing business in the territory, and is represented there by a manager or local agent."

The next case referred to is that of L. D. Powell Company v. Rountree, 157 Ark. 121, 247 S.W 389. In that case, which involved the sale of books, the court said: "The recovery of the books under the McNeill...