Gillioz v. Kincannon, Judge

• Decision Date: 25 October 1948
• Docket Number: 4-8575
• Citation: 214 S.W.2d 212,213 Ark. 1010
• Parties: Gillioz v. Kincannon, Judge
• Court: Arkansas Supreme Court

214 S.W.2d 212

213 Ark. 1010

Gillioz v. Kincannon, Judge

No. 4-8575

Supreme Court of Arkansas

October 25, 1948

Prohibition to Logan Circuit Court, Southern District; J. O Kincannon, Judge.

Writ Granted.

Harper Harper & Young and J. W. Durden, for petitioner.

Paul X. Williams and George E. Lusk, Jr., for respondent.

OPINION

Holt J.

This action is an original proceeding wherein M. E. Gillioz, petitioner, seeks a "Writ of Prohibition" to enjoin Judge J. O. Kincannon, Judge of the Logan Circuit Court, Southern District, from assuming jurisdiction in three separate tort actions instituted by different plaintiffs, one by J. L. Strickland and L. J. Willis, a second by Jess Tillery, and a third by C. A. Gantt, against petitioner, M. E. Gillioz.

Petitioner alleged in his petition that on August 23, 1947, the above plaintiffs sued him along with H. J. Doty, alleging that petitioner and Doty "while engaged in doing business in the State of Arkansas, clearing an area known as the Blue Mountain Dam area in South Logan county, Arkansas, carelessly and negligently set fire to grass and timber adjoining plaintiffs' lands on the . . . day of August, 1946, without giving notice to these plaintiffs; and fire spread to plaintiffs' lands and burned and injured the lands and growing timber, the meadows and the grazing land, and prayed judgment against the defendants for $ 2,500, costs. . . ."

That constructive service was had on petitioner, Gillioz, who was a nonresident, living in Monette, Missouri, that said service was had in accordance with the provisions of Act 347 of the 1947 acts of the Legislature.

He further alleged "that on September 16, 1947, defendant, M. E. Gillioz, appearing specially for the purpose of presenting his motion and for no other purpose and at all times objecting to the jurisdiction of the court over his person, filed a verified motion to quash service of summons alleging that the attempted service of summons upon him by serving summons on C. G. Hall, Secretary of State of the State of Arkansas, and by notifying said defendant by United States mail by sending copy of summons and copy of complaint to him under the provisions of Act 347 of the Acts of Arkansas for 1947, was void and did not give the court jurisdiction over the person of this defendant for the reason that the provisions of Act 347 of the Acts of Arkansas for 1947 are void as being in contravention of the Constitution of the United States and the Constitution of Arkansas; defendant further stated in his motion that even if Act 347 of 1947 be not unconstitutional for the reason aforesaid, service could not be had upon this defendant under provisions of this Act for the reason that the complaint showed on its face that the cause of action sued upon arose prior to the adoption of said Act and the General Assembly of the State of Arkansas was without power to make the provisions retroactive, since it affects a substantive right of this defendant; defendant further stated that at the time of the filing of this action and at the time of the attempted service upon him, he was not engaged in any business in the State of Arkansas, is not now so engaged and has not been engaged in business in the State of Arkansas since the filing of this action; that on January 16, 1948, said Motion to Quash Service of Summons was presented to the court and after hearing the verified motion and considering the pleadings filed, the same was overruled, to which ruling of the court the petitioner excepted; . . .

"That the Logan Circuit Court, Southern District, is exercising or threatening to exercise jurisdiction over the person of M. E. Gillioz, a resident of the State of Missouri, in a cause of action which arose out of alleged acts of this petitioner, which according to the complaint, occurred during the year of 1946."

Petitioner, Gillioz, concedes that this case comes within the provisions of Act 347 of 1947 and that the procedure therein outlined for a nonresident service was followed. He earnestly contends, however, (1) that this Act is unconstitutional in its entirety and (2) that, in any event, that part of § 4 which provides that its provisions shall be applicable retroactively is void.

The Act contains the following provisions: "Section 2. Any nonresident person, firm, partnership, general or limited, or any corporation not qualified under the Constitution and Laws of this state as to doing business herein, who shall do any business or perform any character of work or service in this state shall, by the doing of such business or the performing of such work, or services, be deemed to have appointed the Secretary of State, or his successor or successors in office, to be the true and lawful attorney or agent of such nonresident, upon whom process may be served in any action accrued or accruing from the doing of such business or the performing of such work, or service, or as an incident thereto by any such nonresident, or his, its or their agent, servant or employee. Service of such process shall be made by serving a copy of the process on the said Secretary of State, and such service shall be sufficient service upon the said nonresident of the State of Arkansas, provided that notice of such service and a copy of the process are forthwith sent by registered mail by the plaintiff, or his attorney, to the defendant at his last known address, and the defendant's written return receipt, or the affidavit of the plaintiff, or his attorney of compliance herewith are appended to the writ of process and entered in the office of the clerk of the court wherein said cause is brought. The court in which the action is pending may order such continuance as may be necessary to afford the defendant, or defendants, reasonable opportunity to defend the action.

"Section 3. Service of summons when obtained upon any such nonresident as above provided for the service of process herein shall be deemed sufficient service of summons and process to give to any of the courts of this state jurisdiction over the cause of action and over such nonresident defendant, or defendants, and shall warrant and authorize personal judgment against such nonresident defendant, or defendants, in the event that the plaintiff prevails in the action.

"Section 4. The provisions of this Act shall be applicable both retroactively and prospectively.

"Section 5. Each paragraph, each sentence and each clause of this Act shall be treated and construed as being separable and the invalidity of any paragraph, sentence or clause shall not affect the validity of the other paragraphs, sentences or clauses."

It is admitted that the tort actions involved here arose in August, 1946, prior to the passage and approval by the Legislature of Act 347 in 1947.

We have reached the conclusion that the Act, insofar as it is prospective, is constitutional and a valid exercise of the legislative authority, but invalid and unconstitutional insofar as it attempts to make its provisions retroactive, in effect, and we therefore hold that the service here on the petitioner is void.

On the question of the constitutionality of Act 347 of 1947, it appears that the same procedure, in effect, for service of process on nonresidents, not qualified to do business in this state and who shall do any character of work or service in Arkansas, was required by Act 94 of 1941, applying to the practice of optometry, but the constitutionality of Act 94 was upheld by this court in Ritholz v. Dodge, Chancellor, 210 Ark. 404, 196 S.W.2d 479, 167 A. L. R. 705. The same procedure, in effect, was required by Act 39 of 1933 affecting nonresident motorists and the consttiutionality of that Act was sustained in Kelso v. Bush, 191 Ark. 1044, 89 S.W.2d 594. See, also, Yocum v. Oklahoma Tire & Supply Co., 191 Ark. 1126, 89 S.W.2d 919, in which Act 70 of 1935 a companion Act to Act 39 of 1933, supra, which permitted substituted service on nonresident owners by service on their agents when engaged in the particular business set out in the act.

In discussing the constitutionality of Act 347 of 1947, here involved, then considered prospectively only, Dr. Leflar in 1 Ark. Law Rev., No. 4, page 201, makes the following comment "The principal purpose of Act 347 of 1947 was to extend the circumstances in which Arkansas courts may exercise personal jurisdiction to render judgments in personam on constructive service against nonresident defendants in suits on causes of action arising out of acts done by such defendants in Arkansas," and on the validity of the Act, said: "The ...