L. G. Everist, Inc. v. Wood

• Decision Date: 20 April 1942
• Docket Number: 4-6796 161
• Citation: L. G. Everist, Inc. v. Wood, 161 S.W.2d 18, 204 Ark. 124 (Ark. 1942)
• Parties: L. G. EVERIST, INC., v. J. SAM WOOD, CHANCELLOR ON EXCHANGE
• Court: Arkansas Supreme Court

161 S.W.2d 18

204 Ark. 124

L. G. EVERIST, INC., v. J. SAM WOOD, CHANCELLOR ON EXCHANGE

4-6796 161

Supreme Court of Arkansas

April 20, 1942

Prohibition to Sebastian Chancery Court, Fort Smith District J. Sam Wood, Chancellor on exchange; writ denied.

Writ denied.

Miles & Young, for petitioners.

Hardin & Barton and Daily & Woods, for respondent.

OPINION

GREENHAW, J.

This is a petition for a writ of prohibition to restrain respondent, judge of the Sebastian chancery court on exchange of circuits, from proceeding further in a suit by several insurance companies against petitioners, and to dissolve an order of that court restraining L. G. Everist, Inc., one of the petitioners, from removing its property from the jurisdiction of the court.

Petitioners are nonresident corporations duly authorized to do business in this state, and since September or October, 1941, it is alleged they have been operating a quarry in Fort Smith and engaging in blasting operations there. The home office of L G. Everist, Inc., is Sioux Falls, South Dakota, and the home office of Western Contracting Corporation is Sioux City, Iowa, Hubert Everist being president of both companies.

The complaint, filed March 13, 1942, by Employers' Fire Insurance Company and 37 other insurance companies, alleges that plaintiffs have issued insurance policies on numerous pieces of property in Fort Smith, insuring against loss by fire and other perils, including explosion. Negligent explosion of dynamite by petitioners has injured many of these properties, the owners of which have notified plaintiffs of their damages and their intention to file claims under their policies when the work has been completed and after all of their damages, present and future, have been ascertained. Plaintiffs allege that they will be liable for these damages under the terms of their policies, and they are entitled to be subrogated to the rights of their assureds against petitioners in whatever sums they may be compelled to pay by reason of damages caused by petitioners. Sixty-eight policyholders were made defendants, along with petitioners, and it was prayed that the policyholders be required to assert whatever claims they might have against plaintiff insurance companies.

The complaint further alleges that petitioners have large amounts of property within this state which they are about to remove, leaving no assets in this state out of which plaintiffs or their assureds may make collection of their claims. Plaintiffs pray that petitioners be restrained from removing their property from the jurisdiction of the court, and that plaintiffs have judgment against petitioners for all amounts which they are compelled to pay the policyholders under the terms of their policies.

Petitioners' motion to dismiss was overruled, and on March 18, 1942, the court entered an order restraining L. G. Everist, Inc., from removing its property from the jurisdiction of the court, upon plaintiffs' executing bond for $ 25,000, which bond was executed, filed and approved. The restraining order further provided that L. G. Everist, Inc., might remove its property upon its executing and filing a bond for $ 25,000, conditioned upon payment of all sums which might be adjudged against it.

The complaint alleges that suit is brought in equity (1) because there is involved a complicated accounting, (2) to avoid multiplicity of suits, and (3) because plaintiffs have no adequate remedy at law. It is further contended that the chancery court of Sebastian county had jurisdiction in order to prevent a circuity of action, and to afford relief to plaintiffs under the law of subrogation, it being insisted that plaintiffs are entitled under the policies to be subrogated to the rights of the policyholders for the damages which have been sustained by them, after they have been paid by plaintiffs.

Petitioners contend that no accounting is involved, and that equity jurisdiction to avoid a multiplicity of suits is not applicable for the reason that all suits, if filed at law, could be consolidated and tried together. It is further contended by petitioners that the court is without jurisdiction to restrain L. G. Everist, Inc., from removing its property out of this state for the reason that the company is authorized to do business in this state and has an agent upon whom service may be had.

We are unable to agree with the contention of petitioners that the equitable jurisdiction to prevent a multiplicity of suits would not apply. It is asserted that some of the claims or suits might be so small as to be cognizable only in a justice of peace court, while others would have to be filed in the circuit court.

In the case of Fidelity & Deposit Company v Cowan, 184 Ark. 75, 41 S.W.2d 748, the lower court assumed jurisdiction and proceeded to adjudicate all issues, both legal and equitable. In that case this court said: "It is insisted also that the court erred in consolidating the cases, and that the state of the pleadings did not warrant the decree entered of record by the...