Rodgers v. Howard, Judge

• Decision Date: 04 April 1949
• Docket Number: 4-8592
• Citation: 219 S.W.2d 240,215 Ark. 43
• Parties: Rodgers v. Howard, Judge
• Court: Arkansas Supreme Court

219 S.W.2d 240

215 Ark. 43

Rodgers v. Howard, Judge

No. 4-8592

Supreme Court of Arkansas

April 4, 1949

Original Proceeding by motions for writs of procedendo ad judicium.

Motions Denied.

W C. Rodgers, for petitioner.

OPINION

PER CURIAM

This is an original proceeding in this Court, and embraces three separate motions filed by the same party, each seeking a writ of procedendo ad judicium.

The petitioner here is the plaintiff in an action pending in the Circuit Court of Howard county against the Campbell Soup Company. The respondent is the Judge of the Ninth Judicial Circuit, which includes Howard county; and the prayer of each motion is that this Court require the respondent to adjudicate petitioner's case in the Circuit Court. We forego any discussion of (1) the history and original functions of the writ of procedendo ad judicium, and (2) whether the writ under our present Code practice should be styled under another name; because this Court, under our Constitution (Art. VII, § 4) has supervision over all inferior courts, and we consider that by whatever name the petition here is styled, consideration of the relief sought by the petitioner is within our constitutional power.

On November 7, 1947, petitioner filed his complaint in the Howard Circuit Court against the Campbell Soup Company alleging it to be a corporation organized under the Laws of New Jersey, and domiciled in that State. The complaint sought judgment in personam against the defendant.

I. First Attempted Service. Service on the defendant was attempted under § 1374, Pope's Digest -- i. e., by serving summons on the corporation officers at its home office in New Jersey. When the Circuit Court (under the authority of § 8226, Pope's Digest) held such service insufficient to support a judgment in personam, the petitioner filed in this Court on March 29, 1948, his first motion for writ of procedendo ad judicium. We denied that motion by a per curiam order of April 12, 1948.

II. Second Attempted Service. Petitioner then had a summons against the Campbell Soup Company served on the Secretary of State of Arkansas, ^[1] based on the premise that, under Act 347 of 1947, the Campbell Company was capable of being sued in actions in personam in this State. Unless said Act 347 of 1947 is applicable, then this service must also fail. The Circuit Court held this service to be insufficient, and petitioner then filed in this Court -- on June 26, 1948 -- his second motion for writ of procedendo ad judicium. Attached to that motion there is what purports to be the evidence heard in the Circuit Court, and on which the Court held the service to be deficient.

Assuming, but not deciding, that this evidence is properly before us, and that this is the appropriate method for presenting the issue, the transcript reflects that a traveling salesman of the Campbell Soup Company solicited orders from the Stuart Grocery Company in Nashville, Arkansas; that such orders were forwarded by the salesman to the home office of the Campbell Soup Company in New Jersey for acceptance or rejection; that sometimes the Stuart Grocery Company sent its orders direct by mail to the Campbell Soup Company in New Jersey; that upon acceptance of any order by the Campbell Company at its home office in New Jersey (whether the order was obtained by the salesman or sent direct by mail as aforesaid), the shipment from the Campbell Soup Company to the Stuart Grocery Company was packed, marked, and duly identified as for that party, and placed in a railroad carload shipment containing goods for distribution to other purchasers in the Nashville freight territory; that the entire carload moved by rail from New Jersey to the Hunter Transfer Company at Texarkana, Arkansas; that this last-mentioned concern opened the car and then sent to the Stuart Grocery Company its shipment and likewise sent other purchasers their shipments from the said railroad car. In short, the Hunter Transfer Company broke the shipment to less-than-carload lots -- all of which was evidently a freight saving device. Stuart Grocery Company paid direct to Campbell Soup Company in New Jersey.

Because of the activities of the Hunter Transfer Company in Texarkana, Arkansas, petitioner claims that the Campbell Soup Company was doing business in Arkansas, and therefore capable of being brought into the Arkansas courts by service of process on the Secretary of State under Act 347 of 1947, or service on the State Auditor under § 2250, Pope's Digest. The cases of Crawford v. Louisville Silo & Tank Co., 166 Ark. 88, 265 S.W. 355 and Citizens Union National Bank v. Thweatt, 166 Ark. 269, 265 S.W. 955 are authority for our holding against petitioner's contention. In those cited cases, just as here, a non-domesticated foreign corporation accumulated several shipments into one carload shipment to an Arkansas point, where an agent of such corporation distributed the individual shipments to the various purchasers; and we held that such shipments were inter-state commerce and did not constitute "doing business" in Arkansas by the foreign corporation within the purview of our statutes.

Act 347 of 1947 was before this Court in the recent case of Gillioz v. Kincannon, 213 Ark. 1010 214 S.W.2d 212, and reference is made to that opinion for a discussion of the said Act. Petitioner claims that Act 347 of 1947 changed the rules of law announced in the Crawford-Louisville and Citizens Bank-Thweatt cases, supra, and petitioner urges that the said Act allows the Campbell Company to be sued in a case such as this one, since (1) Hunter Transfer Company was the agent of the Campbell Company to break and subdivide the carload shipment, and (2) such act by the Hunter...