Roach v. Henry
| Decision Date | 30 January 1933 |
| Docket Number | 4-2939 |
| Citation | 56 S.W.2d 577,186 Ark. 884 |
| Parties | ROACH v. HENRY |
| Court | Arkansas Supreme Court |
Prohibition to Chicot Court; Patrick Henry, Judge; writ denied.
Writ of prohibition denied.
John Baxter, for appellant.
W. W Grubbs, for appellee.
The Northwest Engineering Company, a foreign corporation, brought suit in Chicot Circuit Court on September 6, 1932, against the petitioner, T. W. Roach, and on the same day a combined summons and attachment was issued against Roach, and at the same time a bond was filed and a writ of garnishment issued against Sternberg Company, Incorporated, a foreign corporation doing business in Arkansas. The writ of garnishment was served on the same day the complaint was filed.
The petitioner states that the only question to determine is one of jurisdiction. It is his contention that there was no suit actually commenced at the time the garnishment was issued, and that the garnishment is therefore void.
A civil action is commenced by filing in the office of the clerk of the proper court a complaint, and causing a summons to be issued thereon. This was done on September 6, 1932. Complaint was filed, and summons issued thereon.
The summons, however, was not served on Roach, but the respondent says that, under the allegations of the complaint and statements by counsel for plaintiff, which are not denied, at the time the complaint was filed and summons issued, Roach was engaged in levee work in Chicot County, and that before and since the filing of the suit Roach had been in the county from time to time. If Roach was in the county, as alleged by the respondent, where he could have been served, and the complaint was filed and summons issued thereon as alleged, action was begun on September 6, in accordance with § 1049 of Crawford & Moses' Digest. The mere fact that the defendant was not served would not render the garnishment void.
We have held repeatedly that there must be a strict compliance with the requirements imposed by statute in order that the garnishment proceedings may be sustained, but conversely such a compliance with the statute is sufficient. Missouri Pacific Rd. Co. v. McLendon, 185 Ark. 204, 46 S.W.2d 626.
We think the statute was complied with, if the statements of respondent are true, and they are not denied. Moreover, as to whether the court had jurisdiction of the person of the defendant under the circumstances and facts in this case would have to be tried and determined by the trial court.
"It is well settled that, if the existence or nonexistence of jurisdiction...
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...statutes is essential to the validity of the proceeding. Hervey v. The Farms, Inc., 252 Ark. 881, 481 S.W.2d 348; Roach v. Henry, 186 Ark. 884, 56 S.W.2d 577; Missouri Pacific R. Co. v. McLendon, 185 Ark. 204, 46 S.W.2d 626; Schiele v. Dillard, 94 Ark. 277, 126 S.W. 835; First National Bank......
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...statutes is essential to the validity of the proceeding. Hervey v. The Farms, Inc., 252 Ark. 881, 481 S.W.2d 348; Roach v. Henry, 186 Ark. 884, 56 S.W.2d 577 Missouri Pacific R. Co. v. McLendon, 185 Ark. 204, 46 S.W.2d 626; Schiele v. Dillard, 94 Ark. 277, 126 S.W. 835; First National Bank ......
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...the 'proper county' is either the county of defendant's residence or the county where he may be served with process. In Roach v. Henry, 186 Ark. 884, 56 S.W.2d 577 (1933), Roach had filed a motion to quash a garnishment issued in an action against him. He contended that the garnishment was ......
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