Fraser Bros. v. Darragh Co., 93-287

Decision Date07 March 1994
Docket NumberNo. 93-287,93-287
Citation316 Ark. 297,871 S.W.2d 367
PartiesFRASER BROS., Duane Fraser, and Rudy Fraser, Appellants, v. DARRAGH COMPANY, Appellee.
CourtArkansas Supreme Court

Fletcher C. Lewis, Little Rock, for appellant.

James M. McHaney, Jr., No. Little Rock, for appellee.

JACK T. LASSITER, Special Chief Justice.

The appellants, Fraser Bros., Duane Fraser, and Rudy Fraser appealed from the trial court's order dismissing their complaint filed in Woodruff County for improper venue.We affirm.

Appellants' complaint asserted that Fraser Bros. was a Woodruff County farming partnership and that Duane Fraser and Rudy Fraser were general partners and residents of Woodruff County.The complaint alleged that appelleeDarragh Company was an Arkansas corporation with its registered agent for service in Little Rock, Arkansas.The complaint also alleged that Darragh Company did business in Woodruff County, Arkansas, in its own capacity and through its broker.The complaint alleged that Fraser Bros. had sold corn to Darragh Company in September, 1992, in two different loads delivered to Darragh's mills in Conway and Searcy.Fraser Bros. claimed sale prices of $11,475.68 and $11,227.89, respectively.Appellants alleged that Darragh Company refused to pay for the corn in bad faith and intentional violation of their contract.Appellants sought damages in the amount of the sale price of the corn.

Darragh Company answered and moved to dismiss pursuant to ARCP, Rule 12(b)(3), arguing Woodruff County, the residence of appellants, was improper venue.

Appellants responded asserting that venue was proper relying upon Ark.Code Ann. § 16-60-113(a)(1987), which provides--

(a) Any action for damages to personal property by wrongful or negligent act, whether arising from contract, tort, or conversion of personal property, may be brought either in the county where the damage occurred, or in the county where the property was converted, or in the county of residence of the person who was the owner of the property at the time the cause of action arose.

The trial court properly dismissed the complaint for improper venue.When two actions are pled which would lie in different venues, venue is determined by the real character of the action, the principal right being asserted.Atkins Pickle v. Burrough-Uerling-Brasuell, 275 Ark. 135, 628 S.W.2d 9(1982).Appellants' cause of action was based on nonpayment of a debt or breach of contract.Those causes of action must be brought in the county of the defendant's residence or where the defendant is summoned.Ark.Code Ann. § 16-60-111and116(a)(1987).

The appellants' complaint did not allege facts sufficient to establish venue in Woodruff County against the defendant corporation.First, the allegation that DefendantDarragh Company did business in Woodruff County was insufficient alone to establish venue in that county.Appellants did not allege that Darragh Company had its principal office in Woodruff County, was situated there, or that its chief officer resided...

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6 cases
  • Orr v. Calicott
    • United States
    • Arkansas Court of Appeals
    • 16 Diciembre 2009
    ...cases where the issue of improper venue has been appealed by the plaintiffs after dismissal of their complaint. Fraser Bros. v. Darragh Co., 316 Ark. 297, 871 S.W.2d 367 (1994); Parsons Dispatch, Inc. v. John J. Jerue Truck Broker, Inc., 89 Ark.App. 25, 199 S.W.3d 686 (2004). In neither cas......
  • T & T Materials v. Mooney et al
    • United States
    • Arkansas Supreme Court
    • 16 Marzo 2000
    ...See Bristol-Myers Squibb Co. v. Saline County Circuit Court, 329 Ark. 357, 947S.W.2d 12 (1997) (per curiam); Fraser Bros. v. Darragh Co., 316 Ark. 297, 871 S.W.2d 367 (1994); Atkins Pickle Co., Inc. v. Burrough-Uerling-Brasuell Consult. Eng'rs, Inc., 275 Ark. 135, 628 S.W.2d 9 (1982). This ......
  • Two Bros. Farm, Inc. v. Riceland Foods, Inc.
    • United States
    • Arkansas Court of Appeals
    • 2 Abril 1997
    ...of the documents, witnesses, and records are located in Arkansas County. For this argument, the appellee cites Fraser Bros. v. Darragh Co., 316 Ark. 297, 871 S.W.2d 367 (1994), which held that if the plaintiff has failed to allege that the defendant has its principal office in Woodruff Coun......
  • Henderson Specialties, Inc. v. Boone County Circuit Court
    • United States
    • Arkansas Supreme Court
    • 9 Junio 1998
    ...must also ascertain the character of the action and the primary right asserted from the face of the complaint. Fraser Bros. v. Darragh Co., 316 Ark. 297, 871 S.W.2d 367 (1994). Accordingly, we review the complaint in Paragraph No. 1 of the complaint alleges that Quality, is an Arkansas busi......
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