Shrieves v. Yarbrough

• Court: Arkansas Supreme Court
• Writing for the Court: McFADDIN; ROBINSON
• Citation: Shrieves v. Yarbrough, 220 Ark. 256, 247 S.W.2d 193 (Ark. 1952)
• Decision Date: 24 March 1952
• Docket Number: No. 4-9728,4-9728
• Parties: SHRIEVES v. YARBROUGH et al.

Page 193

247 S.W.2d 193

220 Ark. 256

SHRIEVES v. YARBROUGH et al.

No. 4-9728.

Supreme Court of Arkansas.

March 24, 1952.

Richard L. Pratt and Talley & Owen, all of Little Rock, Tom Abington, Beebe, Wayne W. Owen, Little Rock, for appellant.

Wright, Harrison, Lindsey & Upton, Little Rock, for appellees.

McFADDIN, Justice.

This appeal, stemming from a traffic mishap, necessitates a decision of the effect of the 1939 and 1947 Venue Acts, Sec. 27-610 et seq., Ark.Stats., on (a) the counterclaim statute, Sec. 27-1123 et seq., Ark.Stats.; and (b) the compulsory pleading statute, 4th subdivision, Sec. 27-1121, Ark.Stats.

In July, 1950, Mr. and Mrs. Shrieves (residents of Pulaski County), while driving in a car in White County, Arkansas, had a traffic mishap with a car then driven or owned by Yarbrough and Warren (residents of Johnson County, Arkansas.) Under Sec. 27-610 et seq., Ark.Stats., the venue in any damage suit arising out of this collision would be in (a) White County, Arkansas, as the place of the collision, or (b) the resident county of whichever party was the plaintiff (that is, either Pulaski County or Johnson County, depending on which party first sued and obtained jurisdiction, as held in Healey & Roth v. Huie, Ark., 245 S.W.2d 813.

In August, 1950, Yarbrough and Warren filed action against both Mr. and Mrs. Shrieves in the Circuit Court of Johnson County; and in that case, Mrs. Shrieves filed her separate answer and her separate counterclaim. The cause proceeded to a trial, and at the close of the plaintiff's case, Mrs. Shrieves moved for a directed verdict in her favor, as against the complaint of Yarbrough and Warren. This motion was granted. Thereupon, Mrs. Shrieves took a voluntary nonsuit on her separate counterclaim against Yarbrough and Warren. The case of Yarbrough and Warren against Mr. Shrieves proceeded in the Johnson Circuit Court, and resulted in a verdict and judgment against Mr. Shrieves.

Then, in December, 1950, Mrs. Shrieves filed action against Yarbrough and Warren in the Circuit Court of White County. The cause of action so alleged by Mrs. Shrieves is the same cause of action alleged by her in her counterclaim in the Circuit Court of Johnson County. Against Mrs. Shrieves' White County action, Yarbrough and Warren pleaded res judicata, and claimed that the Johnson County case settled all questions. On stipulated facts as heretofore stated, the White Circuit Court sustained the plea of res judicata; and Mrs. Shrieves has appealed.

Mrs. Shrieves claims that under Sec. 27-1123, Ark.Stats., a counterclaim is a separate and distinct cause of action; that a party may dismiss a cause of action and later refile it, without being barred by res judicata; and that when the Johnson Circuit Court directed a verdict for Mrs. Shrieves as against the complaint of Yarbrough and Warren, Mrs. Shrieves then had a right to take a nonsuit on her counterclaim, and later refile it in whatever forum had jurisdiction. To sustain her contentions, Mrs. Shrieves cites Zurich v. Smith, 209 Ark. 135, 189 S.W.2d 718; Twist v. Roane, 174 Ark. 35, 294 S.W. 62; Fox v. Pinson, 182 Ark. 936, 34 S.W.2d 459, 74 A.L.R. 583; Fowler v. Lawson, 15 Ark. 148; and also 50 C.J.S., Judgments, § 684, page 135.

In the oral argument before this Court, it was conceded by appellant that if Yarbrough and Warren should have attempted to assert--as a defense to Mrs. Shrieves' action in the White Circuit Court--the same allegations they had made against her in their case in the Johnson Circuit Court, then against such allegations, Mrs. Shrieves could have successfully pleaded as res judicata the action of the Johnson Circuit Court in directing a verdict in her favor. Thus, Mrs. Shrieves is in the position of wanting the benefit and none of the disadvantages of the Johnson Circuit Court case.

To support the judgment of the White Circuit Court, in sustaining the plea of res judicata in the present case, the appellees cite, inter alia: Morgan v. Rankin, 197 Ark. 119, 122 S.W.2d 555, 119 A.L.R. 1466; Corey v. Mercantile Ins. Co., 207 Ark. 284, 180 S.W.2d 570; Robinson v. Mo. Pac. Transp. Co., 192 Ark. 593, 93 S.W.2d 311; Ozan Lumber Co. v. Tidwell, 213 Ark. 751, 212 S.W.2d 349. To the cases cited by both sides, there might well be added Adams v. Henderson, 197 Ark. 907, 125 S.W.2d 472; Martin v. Wheatley, D.C., 62 F.Supp. 104; Wheatley v. Martin, D.C., 62 F.Supp. 109; and the Annotations in 8 A.L.R. 694 and 119 A.L.R. 1469.

We conclude that the judgment of...