Hogue v. Hogue

• Decision Date: 27 January 1919
• Docket Number: 82
• Citation: 208 S.W. 579,137 Ark. 485
• Parties: HOGUE v. HOGUE
• Court: Arkansas Supreme Court

208 S.W. 579

137 Ark. 485

HOGUE v. HOGUE

No. 82

Supreme Court of Arkansas

January 27, 1919

Appeal from Clay Circuit Court, Eastern District, First Division; R H. Dudley, Judge; affirmed.

STATEMENT OF FACTS.

Verna Hogue instituted this action in the circuit court against her husband, Maury A. Hogue, alleging that he had communicated to her a venereal disease. She had summons issued on him in Piggott, Arkansas, on June 27, 1918. On October 14, 1918 being the first day of the next term of the court, the defendant, Maury A. Hogue, filed a motion to quash the summons, which had been served upon him in the suit, on the ground that at the time of the service of the summons he was a resident of the State of Missouri and that he was at Piggott on June 27, 1918, for the purpose of attending the taking of depositions in a divorce suit between himself and his wife. The facts are as follows:

Maury A. Hogue is a resident of Dunklin County, in the State of Missouri. She instituted a suit for divorce against him in that county. He answered denying the allegations of the complaint and filed a cross-complaint, in which he asked for a divorce from his wife. By agreement between the parties and their attorneys, they met at Piggott, Arkansas, on the 27th day of June, 1918, for the purpose of taking the depositions of witnesses to be used in the trial of said cause. On the 27th day of June, 1918, while in Piggott for the purpose of taking these depositions, Verna Hogue had summons served on her husband, Maury A. Hogue, in the present action. On July 19, 1918, the attorneys for Maury A. Hogue sent to the clerk of the circuit court at Piggott, Arkansas, a general demurrer to the complaint which was received by the clerk. The clerk marked on it the following: "Filed in my office this 19th day of July, 1918." On the same day the clerk wrote to Ward & Reeves, the attorneys for Maury A. Hogue, at Caruthersville, Missouri, the following letter:

"Gentlemen I am in receipt of your demurrer in the Hogue v. Hogue case and noted your request, but our law requires each complaint to be filed in duplicate, and as you have only sent one copy I am holding same until you can send the additional copy.

"Also under the new salary law under which we are working, an advance fee must be paid in all cases where there is no bond for costs, to cover the costs in the case, the same to be credited on the papers and be adjusted at termination of suit.

"The usual amount paid is $ 10, and the plaintiff has paid the amount required to cover any costs accrued by them.

"Upon meeting the above requirements, your demurrer will be properly filed.

"Awaiting your further pleasure, I am,

"Yours truly."

This letter was duly received by Ward & Reeves at Caruthersville, Missouri, and they wrote to the clerk on July 22, 1918, the following:

"Dear Sir: Enclosed find copy of the demurrer in the case of Hogue v. Hogue. We did not know that a copy should be filed together with the original.

"Yours truly."

This letter was duly received by the clerk and he wrote to Ward & Reeves in reply thereto the following:

"Gentlemen: You have ignored that part of my former letter with reference to the costs in this case. You must either file a suitable bond or send check for as much as $ 10 to cover advance costs before I can file this demurrer.

"Yours truly."

Ward & Reeves received this letter on August 8. The clerk again wrote to Ward & Reeves the following letter:

"Gentlemen: I am still awaiting your reply to my letter about the costs in the case of Hogue v. Hogue. I have not as yet received any reply nor check to cover the advance costs in the case. The plaintiff has paid her fee for entering the case, but to date you nor the defendant have not complied. I am still holding the demurrer awaiting your reply.

"Yours truly."

This letter was also received by Ward & Reeves, and in reply they wrote to the clerk the following:

"Dear Sir: I must certainly beg your pardon because of my negligence in not answering your letter, but I have been away from home and my law partner knew nothing about it. Of course, I have never been required in representing defendants to pay costs, but I now understand that you are on a salary basis, and you have to account for all the fees; and, of course, you are perfectly right; but, I am informed by Mr. Huddleston that it is not necessary for me to file anything in court at this time. You may return to me the demurrer.

"I thank you for your courtesy in this matter, and assure you that I will protect you in every way in any costs in this matter as we proceed in this case.

"Yours truly."

This letter was duly received by the clerk at Piggott, Arkansas.

The court sustained the motion of the defendant to quash the summons and caused to be entered of record the following order:

"On this day, this cause coming on to be heard upon the motion of the defendant to quash the summons issued in this cause, the same is submitted and heard upon said motion, the response of the plaintiff and the reply of the defendant to said response and upon the testimony of C. W. Pollard, M. P. Huddleston, and R. L. Ward, and the exhibits thereto.

"The court after due consideration finds for defendant, as to all the issues involved in said motion, and quashes the summons issued in this cause.

"It is therefore by the court considered, ordered and adjudged that the summons heretofore issued in this cause be and the same is hereby quashed, and that defendant go hence without day.

"To which finding and judgment of the court, the plaintiff at that time excepted and asked that her exceptions be noted of record, which is accordingly done, and prayed an appeal to the Supreme Court which was granted, and plaintiff allowed one hundred and twenty days in which to file her bill of exceptions herein."

The plaintiff has appealed.

Judgment affirmed.

Huddleston, Fuhr & Futrell, for appellant.

1. The court erred in quashing the summons; defendant was not privileged from service of summons. The court erred in its orders Nos. 1 and 2. They were appealable orders. 2 Stand. Enc. Proc. 172; 35 P. 210; 4 Iowa 564; 30 N.W. 360.

2. Certiorari lies to quash these orders. 26 Cyc. 190-1; 34 Am. St. 41; 31 Fla. 594.

3. Mandamus also lies as well as appeal. 91 Ark. 238; Ann. Cases D., 1912, 1267; 9 Am. St. 249; 21 Fed. Cases, 12475 a; 53 Mich. 542. See also 25 L. R. A. (O. S.) 721; 61 Ark. 504; 31 Cyc. 591. Filing a demurrer is an entry of appearance. 21 Ark. 578; 18 Am. Cas. 250, and note; 35 Ark. 578; 12 Id. 62; 18 Am. Cas. 250, and note; 35 Ark. 276; 38 Id. 102; 43 Id. 545; 85 Id. 246; 90 Id. 316; 95 Id. 302; 77 Id. 412; 128 Id. 321. See also 20 Wall. 8; 3 Ark. 436; 91 Id. 231; 145 Cal. 44.

Ward & Reeves and W. E. Spence, for appellee.

The summons was properly quashed. There was no entry of appearance and the court's orders were not appealable. 25 L. R. A. 721; 3 L. R. A. 578; 98 Mo. 590; 108 N.Y. 578; 96 Wis. 641. Filing a paper was not an entry of appearance. Here there was no filing. 19 Cyc. 529, and cases supra. 21 Ark. 578; 82 Id. 164; 15 Ga. 483; 87 Ind. 140; 57 Mo. 83.

The appeal should be dismissed and mandamus and certiorari denied. Supra.

OPINION

HART, J., (after stating the facts).

The record shows that it was ordered and adjudged by the trial court that the summons be quashed and that the defendant go hence without day. Was this a final judgment and, therefore, appealable? The practice in cases of this sort is well settled in this State. Where the trial judge denies a motion to quash the summons or to dismiss the case, he should proceed with the trial, leaving the defendant to save his exceptions to the ruling of the court. Then when final judgment is rendered, all alleged errors occurring at any time during the progress of the trial may be determined on one appeal by this court. The delays and inconveniences resulting from premature or fragmentary appeals are manifest and have frequently been pointed out by this court. It is evident that if an appeal lay in any case from a refusal to quash the summons or to dismiss the case, a defendant could in every case obtain a delay of several months by such motion. So the rule is well settled that there is no appeal from a refusal of the trial court to quash the summons or to dismiss the case. 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 the defendant to go hence without day or what amounts to the same thing, dismissing the plaintiff's action. To illustrate, in Bank of the State v. Bates et al., 10 Ark. 631, the trial court quashed the summons on motion of the defendants and rendered judgment in their favor for costs. This court held that was a final judgment to which a writ of error would lie. Mr. Justice WALKER, who delivered the opinion of the court said that a judgment of a court to be final, must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject-matter in controversy. This court reversed the judgment, however, because it held that the transcript was conclusive against the decision of the court below, which was that the writ should be quashed for want of a seal.

In State v. Vaughan et al., 14 Ark. 424, the court held that a judgment quashing a writ of scire facias upon a forfeited recognizance, was not a final judgment, from which an appeal would lie to this court. The writs were quashed in the court below upon the ground that a single writ and not separate writs should have been issued. But no further judgment was...