McCallum v. General American Oil Co. of Texas, 1030.

• Decision Date: 02 December 1937
• Docket Number: No. 1030.,1030.
• Parties: McCALLUM et al. v. GENERAL AMERICAN OIL CO. OF TEXAS et al.
• Court: U.S. District Court — Western District of Arkansas

21 F. Supp. 401

McCALLUM et al. v. GENERAL AMERICAN OIL CO. OF TEXAS et al.

No. 1030.

District Court, W. D. Arkansas, Texarkana Division.

December 2, 1937.

George F. Edwards, Jr., of Texarkana, Ark., for plaintiffs.

Rodgers & Rodgers, of Texarkana, Tex., for defendants.

RAGON, District Judge.

This is an action by the plaintiffs as residents of Miller county, Ark., against the General American Oil Company of Texas, a Delaware corporation, having its principal office and place of business in Tyler, Tex., and the defendant, J. A. Reynolds, a resident of Tyler, Tex., in which the plaintiff seeks to recover damages for injuries sustained in an automobile collision in the city of Texarkana, Ark., on May 8, 1937. The complaint was filed in the Miller circuit court against the defendants on May 21, 1937. Process was accordingly served on the defendants by delivering a copy to the secretary of state, and notice of the filing of said suit was by registered mail directed to the defendants.

On August 20, 1937, a copy of the summons was served upon the General American Oil Company of Texas by delivering a copy thereof to the secretary of state. Notice to the General American Oil Company of Texas that the summons had been issued and copies of the same had been sent to the sheriff of Pulaski county, Ark., were sent to the General American Oil Company of Texas at Tyler, Tex., on August 19, 1937. A return receipt for this registered letter was signed August 21, 1937. On September 13, 1937, the General American Oil Company of Texas filed its petition and bond for removal of this cause from the Miller circuit court to the federal court for the Western district of Arkansas.

The only question at issue is whether or not the petition and bond for removal were timely filed. This involves a construction of section 1375 and section 1430 of Pope's Digest. The validity of the service had upon the Oil Company is not questioned.

Section 1430 of Pope's Digest provides:

"The defense to any complaint or cross complaint must be filed before noon of the first day the court meets in regular or adjourned session after service:

"First. Where the summons has been served twenty days in any county in the State;

"Second. Where the summons has been served thirty days outside of the State."

My first impressions of the questions involved herein have yielded after a thorough study of the case. Section 1375 of Pope's Digest is a statute which has been passed in a number of states growing out of the increased use of the automobile as a mode of traffic in recent years. It provides that nonresident motorists accepting the rights and privileges conferred by the laws of Arkansas to use the highways of the state for the operation of motor vehicles will be deemed the equivalent of the appointment by such nonresident owner of the secretary of state as his true and lawful attorney and agent for the purpose of service of all lawful process in proceedings against him growing out of any accident or a collision which may occur while in the state. It is provided that service of process may be made by serving a copy of the process on the secretary of state, and that such service shall be sufficient service upon the nonresident motorist, provided that notice of such service and a copy of the process are forthwith sent by registered mail to the defendant at his last known address. The last sentence of this section, in...