Prairie Implement Co., Inc. v. Circuit Court of Southern Dist. of Prairie County, 92-678

• Decision Date: 07 December 1992
• Docket Number: No. 92-678,92-678
• Citation: 844 S.W.2d 299,311 Ark. 200
• Parties: PRAIRIE IMPLEMENT COMPANY, INC., Petitioner, v. CIRCUIT COURT OF THE SOUTHERN DISTRICT OF PRAIRIE COUNTY, Respondent.
• Court: Arkansas Supreme Court

Page 299

844 S.W.2d 299

311 Ark. 200

PRAIRIE IMPLEMENT COMPANY, INC., Petitioner, v. CIRCUIT COURT OF THE SOUTHERN DISTRICT OF PRAIRIE COUNTY, Respondent.

No. 92-678.

Supreme Court of Arkansas.

Dec. 7, 1992.

Dick Johnston, Stuttgart, for petitioner.

Gary B. Rogers, Little Rock, for respondent.

DUDLEY, Justice.

This petition for a writ of prohibition was filed by Prairie Implement Company, Inc., one of the codefendants below, asking us to prohibit the Circuit Court of the Southern District of Prairie County from entertaining a suit brought by Margaret McMullen. Prairie Implement argues that the writ should be issued because venue does not properly lie in the county in which the suit is pending. We deny the writ.

The law governing venue is clear. Since the adoption of our Civil Code in 1869 our statutes have defined certain local actions and directed that all other actions be brought in the county of the defendant's residence. See Ark.Code Ann. § 16-60-116 (1987). The separate districts of a county must be treated as separate counties. Smith v. Waggoner, 212 Ark. 345, 205 S.W.2d 465 (1947). We have said repeatedly that the purpose underlying our venue laws is to fix venue in the county of the defendant's residence unless for policy reasons, there is a statutory exception. Atkins Pickle Co. v. Burrough-Uerling-Brasuell Consulting Eng'rs, Inc., 275 Ark. 135, 628 S.W.2d 9 (1982); Wernimont v. State ex rel. Little Rock Bar Ass'n., 101 Ark. 210, 142 S.W. 194 (1911).

The respondent's brief mentions the fact that venue is not the same as jurisdiction, suggesting that an appeal would be the only remedy available to petitioner. Indeed, we have made this distinction when there is a dispute of fact. For example, in Safeway Cab & Storage Co. v. Kincannon, 192 Ark. 1019, 1021, 96 S.W.2d 7, 8 (1936), we wrote: "If petitioners preserve their objections to the jurisdiction of their persons in the trial of this cause, and an adverse verdict and judgment go against them or either of them, then, if erroneous, it may be corrected on appeal." In addition, there are many cases in which we have said that the only purpose of the writ of prohibition is to prevent a lower court from exercising a power not authorized by law when there is no other adequate remedy available. We have said a writ of prohibition is never issued to prohibit an inferior court from erroneously exercising jurisdiction, but rather is issued only where the lower court is wholly without jurisdiction, or is proposing or threatening to act in excess of its jurisdiction. Our most recent expression of these principles can be found in Forrest City Machine Works, Inc. v. Erwin, 304 Ark. 321, 802 S.W.2d 140, 141 (1991). A very early case, which thoroughly discusses the remedy of a writ, states that it is limited to cases in which subject-matter jurisdiction is lacking. Williams, Ex Parte, 4 Ark. 537 (1843).

This court understands that venue is a procedural matter, not a jurisdictional one. Mark Twain Life Ins. Corp. v. Cory, 283 Ark. 55, 670 S.W.2d 809 (1984). This distinction is made clear in our holdings that, absent an objection, a trial court has the power to render a binding judgment even though venue was not proper. See Gland-O-Lac v. Creekmore, 230 Ark. 919, 327 S.W.2d 558 (1959). Even though lack of venue is not the same as lack of jurisdiction, we treated venue the same as jurisdiction-over-the-person for many years in determining whether a writ of prohibition should issue. Perhaps our reasoning has been based more on history than in logic.

In early years we held that if a defendant filed a motion objecting to venue or a motion to quash invalid service, and the trial court ruled against him, an appeal to this court served to enter his general appearance in the case no matter how erroneous the trial court ruling might have been. Benjamin v. Birmingham, 50 Ark. 433, 8 S.W. 183 (1887). For example, in Waggoner v. Fogleman, 53 Ark. 181, 13 S.W. 729 (1890), in a short but illustrative two-sentence opinion, we held that the judgment in the trial court was void for lack of service, but "the appellant having entered her appearance by the appeal is now in court, and no further service is required" upon remand. This unreasonable rule was severely criticized by the court in Chapman & Dewey Lumber Co. v. Means, 191 Ark. 1066, 88 S.W.2d 829 (1935), and finally overruled in Anheuser-Busch, Inc. v. Manion, 193 Ark. 405, 100 S.W.2d 672 (1937). Perhaps in response to the harshness of such a rule, and because, with such a rule, an appeal could not afford an adequate remedy, we began to allow defendants to seek prohibition after they had objected to venue, even though it was not truly an objection to jurisdiction. Today, we continue tofollow our precedent, and we will grant the writ when, on undisputed facts, a trial court erroneously finds that venue is proper. Arkansas Bank & Trust Co. v. Erwin, 300 Ark. 599, 781 [311 Ark. 203] S.W.2d 21 (1989); Tucker Enterprises, Inc. v. Hartje, 278 Ark. 320, 650 S.W.2d 559 (1983); Beatty v. Ponder, 278 Ark. 41, 642 S.W.2d 891 (1982); International Harvester v. Brown, 241 Ark. 452, 408 S.W.2d 504 (1966); Monette Road Improvement Dist. v. Dudley, 144 Ark. 169, 222 S.W. 59 (1920). Accordingly, we will consider issuing the writ in this case.

Petitioner, Prairie Implement Company, Inc., does not maintain a place of business in the Southern District of Prairie County, nor does it have a principal office there, nor was it summoned there. The allegations of the complaint are that Margaret McMullen, in her own capacity and as the personal representative of the estate of Buddie McMullen, sued Ford Motor Credit Company, Ford Life Insurance Company, and Prairie Implement Company, Inc. She alleged that on October 19, 1989, Buddie McMullen "agreed to purchase," through an installment sales contract, a Ford tractor from Prairie Implement and that the purchase was conditioned upon Buddie McMullen's obtaining life insurance from Ford Life Insurance Company in an amount equal to the purchase price of the tractor. Prairie Implement acted as agent for Ford Life Insurance Company and took an application for the life insurance policy, and Buddie McMullen agreed to pay the premium on the credit life insurance, which was to be financed along with the purchase price of the tractor.

The complaint additionally stated that a representative of Prairie Implement later informed Buddie McMullen that the credit life application was incomplete, that more information about his health was needed, and that Buddie McMullen supplied this information. The complaint further states that on November 14, 1989, almost a month after the agreement to purchase was signed, "[E]mployees of Prairie Implement informed McMullen's son, Emil, that they had contacted Ford Credit, and that credit life coverage was in place for McMullen." The next morning, November 15, Buddie McMullen died, and his son Emil immediately notified Prairie Implement. The allegations of the complaint additionally state that in a letter dated November 15, but post-marked "November 15, 1989 p.m.," Ford Life Insurance Company rejected Buddie McMullen's application for credit life insurance, and, subsequently, Ford Life refused to pay any benefits to the estate of Buddie McMullen. Paragraph 9 of the complaint states: "The refusal of Ford Life to make payment under the credit life policy constitutes a breach of contract." Paragraph 10 is as follows: "In justifiable reliance upon the misrepresentations by Prairie Implement, Ford Credit...