Chapman & Dewey Lumber Company v. Bryan

• Decision Date: 09 February 1931
• Docket Number: 135
• Citation: 35 S.W.2d 80,183 Ark. 119
• Parties: CHAPMAN & DEWEY LUMBER COMPANY v. BRYAN
• Court: Arkansas Supreme Court

35 S.W.2d 80

183 Ark. 119

CHAPMAN & DEWEY LUMBER COMPANY v. BRYAN

No. 135

Supreme Court of Arkansas

February 9, 1931

Appeal from Crittenden Circuit Court; W. W. Bandy, Judge; affirmed.

Judgment affirmed.

Joe C Barrett and Dudley & Dudley, for appellant.

Harrison Smith & Taylor and C. T. Carpenter, for appellee.

OPINION

SMITH J.

Appellant, a Missouri corporation, operates a large sawmill at Marked Tree in this State. Appellee, while employed at the mill, sustained a personal injury, and this suit was brought to recover damages to compensate his injury. The sawmill is located in Poinsett County, but the suit was brought in Crittenden County. Appellant is not engaged in business in the latter county, and was not in business there when this suit was brought.

An answer was filed May 31, 1927, in which the negligence of the defendant company was denied, and the defenses of assumption of risk and contributory negligence were set up. The opinion of this court had been handed down (November 2, 1925) in the case of Power Manufacturing Co. v. Saunders, 169 Ark. 748, 276 S.W. 599, at the time the answer was filed, but the appeal therefrom to the Supreme Court of the United States had not then been decided. In this Power Manufacturing Company case we construed § 1829, C. & M. Digest, which provides that service of summons upon a foreign corporation doing business 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 is brought or is pending or not." We upheld the statute on the theory that venue is a question of procedure, which the State may determine, and the authority existed under this statute, as we construed it, to prosecute the present action in the circuit court of Crittenden County, where the suit was brought, although the defendant corporation was not engaged in business in that county.

But, on May 31, 1927, which was the very day the answer had been filed in this case, the Supreme Court of the United States reversed the decision of this court (Power Manufacturing Co. v. Saunders, 274 U.S. 490, 47 S.Ct. 678, 71 L.Ed. 1165), holding that the statute was unreasonable and arbitrary and in violation of the equal protection clause of the 14th Amendment to the Constitution of the United States, as applied to foreign corporations doing business in the State.

Thereafter, on November 25, 1927, which was the first day of the following term of the Crittenden Circuit Court, the appellant company filed a motion, in which it asked permission to withdraw the answer previously filed and to dismiss the cause for want of jurisdiction. This motion was heard and denied and an exception was duly saved. It appears, however, that the appellant had not, prior to filing this motion, questioned the jurisdiction of the Crittenden Circuit Court, and the answer was a general appearance denying liability, without questioning the jurisdiction of the Crittenden Circuit Court.

It is not now questioned that the appearance of the appellant company might have been entered, although the court was without jurisdiction, nor is it questioned that such appearance was entered. The insistence is that the appearance was entered only because, under the law as this court had declared it, the Crittenden Circuit Court had jurisdiction of the cause of action, and that holding had not been reversed by the Supreme Court of the United States at the time the answer was filed. But the appellant company had the same right, notwithstanding our decision, to question the jurisdiction that the Power Manufacturing Company had, yet it did not do so.

It is familiar law that one may submit to a jurisdiction which could not otherwise be acquired, and that one does submit who, without questioning the jurisdiction, enters an appearance, and it has been many times decided by this court that any action on the part of the defendant, except to object to the jurisdiction, which recognizes the case as in court, will amount to a general appearance, and an appearance cannot be more completely entered than by filing an answer, and this, as we have said, the appellant company did without raising any question as to the jurisdiction of the court. This rule was announced in the early case of Murphy v. Williams,1 Ark. 376, and has since been followed; indeed, the rule appears to be universal. Foohs v. Bilby, 95 Ark. 302, 129 S.W. 1104; Harris v. Smith, 133 Ark. 250, 202 S.W. 244; Sager v. Jung & Sons Co., 143 Ark. 506, 220 S.W. 801; Payne v. Stockton, 147 Ark. 598, 229 S.W. 44; J. C. Engleman, Inc., v. Briscoe, 172 Ark. 1088, 291 S.W. 795; Fidelity Mut. Life Ins. Co. v. Price, 180 Ark. 214, 20 S.W.2d 874.

Appellee lost one finger and sustained an injury to another, and recovered a judgment, which is not complained of as being excessive, and this appeal has been prosecuted to reverse that judgment. It is insisted, for the reversal of this judgment, that the testimony is not legally sufficient to sustain it, and that error was committed in...