Lesser Cotton Co. v. Yates

• Decision Date: 15 June 1901
• Parties: LESSER COTTON COMPANY v. YATES
• Court: Arkansas Supreme Court

63 S.W. 997

69 Ark. 396

LESSER COTTON COMPANY v. YATES

Supreme Court of Arkansas

June 15, 1901

Appeal from Sebastian Circuit Court, STYLES T. ROWE, Judge.

STATEMENT BY THE COURT.

This action was instituted in the court below by appellees on an open account against appellant. The complaint, after stating a cause of action against appellant on the account, alleges "that the Lesser Cotton Company is a corporation duly incorporated under the laws of the state of Missouri, and is doing business at Fort Smith. in Sebastian county, Arkansas and J. A. Skipwith is its agent, and only agent, at Fort Smith, Ark."

Summons was issued, on the filing of the complaint, against Lesser Cotton Company, and served upon J. A. Skipwith. The return of the sheriff on the summons is as follows:

"State of Arkansas, county of Sebastian. I have this 9th day of June, 1899, duly served the within by delivering a true copy of the same to J. A. Skipwith, who is agent for the Lesser Cotton Company, as therein commanded.

"Service

$ .50

"Mileage

.10

"Total

$.60

(Signed)

"GEO T. HAURELL, Sheriff.

"By ELIAS RECTOR, D. S."

On the first day of the said October term of the court, appellant by its attorneys, after having obtained leave to appear specially for that purpose, moved the court to quash the service of the summons, because said service was not upon the defendant or upon any agent of defendant authorized by law as the person upon whom service may be had for the defendant. This motion was by the court overruled, and defendant excepted, and thereupon the court rendered judgment against appellant.

After judgment had been rendered, appellant at the same term filed a motion to vacate and set aside said judgment. The motion is as follows: "Comes the defendant, and moves the court to vacate and set aside the judgment rendered against it in this court because said defendant is a foreign corporation organized under the laws of the state of Missouri, being a resident and citizen of said state of Missouri; that it is not a citizen or resident of the state of Arkansas, and that none of its officers reside in the state of Arkansas; and because the service of summons in this case was not made upon the defendant, or upon any agent of this defendant who was authorized by law to be served with summons in actions brought against said defendant." To support this motion defendant read in evidence the following agreed statement of facts. "It is agreed by and between the plaintiffs Yates Bros., and the defendant, Lesser Cotton Company, that the Lesser Cotton Company is a corporation duly created and existing under and by virtue of the laws of the state of Missouri, and that the said Lesser Cotton Company has complied with the laws of the state of Arkansas requiring foreign corporations to appoint an agent in the state of Arkansas upon whom service of summons may be had; that said corporation, prior to the institution of this suit, appointed Geo. B. Rose, a citizen and resident of Pulaski county, state of Arkansas, as an agent upon whom process might be served, pursuant to the requirements of section 1323 of Sandels & Hill's Digest, and acts amendatory thereto, and that said Geo. B. Rose is the only person whom the said Lesser Cotton Company has designated upon whom service might be had; and that the said Geo. B. Rose was at the institution of tills suit, and still is, such agent; that the Lesser Cotton Company was during the times complained of in the complaint, and up to and including the date of the institution of this suit, doing business in Fort Smith, Arkansas, and that it had J. A. Skipwith as its agent in charge of its business at Fort Smith, Arkansas, and that said J. A. Skipwith managed and controlled the Lesser Cotton Company's business at Fort Smith during the times the matters and things in the complaint complained of occurred, and at the time service of process was had upon it; that the said J. A. Skipwith had not been designated by the Lesser Cotton Company as an agent upon whom service of process might be had, within the meaning of section 1323 of Sandels & Hill's Digest."

This motion was by the court overruled, and defendant excepted, and took a bill of exceptions, which was signed and filed in apt time.

Judgment affirmed.

Read & McDonough, for appellant.

The act of March 18, 1899, provides the only method by which a foreign corporation in this state can be served with process. 59 Ark. 583; id. 593; 76 Mass. 164, 168; 6 Thomp. son, Corp. § 8021; 82 N.W. 663.

OPINION

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

We do not think that either the case of the Southern Building & Loan Association v. Hallum, 59 Ark. 583, 28 S.W. 420, or the case of Union Guaranty & Trust Company v Craddock, 59 Ark. 593, is decisive of the question in this ease. In the former of these two cases, this court held that there could be: no valid service upon a corporation out of the county where the suit was brought, except by serving an agent designated by the company to receive service under the statute, and that the evidence in that case did not show that the person served had been designated as such agent. In the Craddock case it is simply held, in substance, that section 4137 of Sandels & Hill's Digest provides the exclusive method for obtaining service upon a foreign insurance corporation doing business in this state. Neither of these eases hold directly or by necessary implication that section 5672 of Sandels & Hill's Digest was repealed by section 1323, Sandels & Hill's Digest (act of April 4, 1887). Section 5672 reads as follows: "When the defendant is a foreign corporation, having an agent in this state, the service may be upon such agent." Section 1323 is as follows: "Before any foreign corporation shall begin to carry on business in this state, it shall, by its certificate under the hand of the president and seal of such company, filed in the...