Sinclair Refining Company v. Bounds
| Decision Date | 24 April 1939 |
| Docket Number | 4-5451 |
| Citation | 127 S.W.2d 629,198 Ark. 149 |
| Parties | SINCLAIR REFINING COMPANY v. BOUNDS |
| Court | Arkansas Supreme Court |
Appeal from Crawford Circuit Court; J. O. Kincannon, Judge reversed.
Judgment reversed and cause remanded.
V. R Tomlinson, C. R. Starbird and Warner & Warner, for appellant.
Partain & Agee, for appellee.
Appellee filed his complaint, in this action, in the Crawford circuit court on January 14, 1938, to recover damages in the sum of $ 3,000 alleged to have been caused by personal injuries sustained September 23, 1937, while employed by appellant and assisting in installing an automobile car lift at a filling station at Alma, Arkansas.
Thereafter summons was issued and served personally upon two purported agents of appellant in Crawford county, but this service and summons were quashed upon appellant's motion filed March 7, 1938, and sustained by the court on March 29, 1938. Appellee does not question the correctness of the trial court's action in quashing this service and summons, but relies on constructive service alleged to have been had upon appellant by warning order, as will be hereinafter referred to in this opinion.
On February 16, 1938, appellee filed an affidavit and bond for attachment in the cause. The affidavit, omitting formal parts, is as follows: Writ of attachment was issued and levied on the same date on certain property alleged to be owned by appellant and situated in Crawford county, Arkansas.
On February 16, 1938, appellee filed affidavit for warning order which states:
Warning order was duly issued by the circuit clerk on February 16, 1938, and an attorney appointed for the alleged non-resident defendant (appellant here).
On March 14, 1938, the non-resident attorney filed his report, and on March 29, thereafter, appellee filed proof of publication of said warning order.
Prior thereto, on March 7, 1938, appellant (defendant below) appeared specially for the purpose of a motion only, filed its motion to quash the purported personal service, on the grounds that it was not issued, served and returned as provided by law; that appellant is a corporation organized and existing under the laws of the state of Maine, and authorized to do business within the state of Arkansas, and doing business therein; that said appellant, on the date of the commencement of said action and purported service of summons, or prior thereto, or at the present time, has not kept or maintained in Crawford county a branch office or other place of business, and has never had an officer or agent upon whom service could be had in said county; that said W. H. Bryant and Ruth Taylor, upon whom purported service of summons is claimed to have been made, were not on such dates nor at the time the complaint was filed, nor before nor since said date have been, an agent of appellant in charge of its business in said county; that appellant had no agent in said county, nor place of business or branch office therein; that the said Bryant and Taylor were each respectively engaged in their private business, and operating same exclusively as owner and not as agent, or officer of appellant, in charge of its branch office or place of business. Appellant's motion to quash summons and service was sustained on March 29, 1938, as indicated supra.
On March 25, 1938, appellant filed its verified motion to quash the writ of attachment and, among other things, stated in said motion: "Comes now the defendant, and without waiving its motion to quash summons and service herein, and appearing specially and for the purpose of this motion only, and having first obtained leave of court to appear specially and for the purpose of this motion only, and without entering its appearance herein, and moves the court to quash, set aside and hold for naught the purported writ of attachment issued herein, and for grounds thereof, states: That said writ of attachment and the affidavit for same filed by plaintiff and his attorneys herein, were not made and issued in conformity to the statutes and laws of the state of Arkansas in such case made and provided, and are wholly insufficient to support any attachment herein."
On the same day, March 25, 1938, appellant also filed its verified motion to quash warning order issued in said cause, which contains the following allegations: "Comes now the defendant, and, without waiving its motion to quash summons and service and motion to quash attachment, and appearing specially and for the purpose of this motion only, and having first obtained leave of court to appear specially and for the purpose of this motion only and without entering its appearance herein, moves the court to quash, set aside and hold for naught the warning order issued herein against defendant, and for grounds thereof states: That said warning order was not issued in the manner and form and upon the grounds provided by law, and is wholly insufficient to confer jurisdiction of defendant upon this court."
On March 29, 1938, appellant's motion to quash writ of attachment and its motion to quash said warning order were each overruled by the trial court, but, as stated, supra, the court sustained appellant's motion to quash the summons and the purported service thereon.
Thereafter on March 29, 1938, appellant filed its answer setting out, among other things, the following: ". . . without waiving its motion to quash the attachment filed by it herein, but insisting upon same, and also without waiving its motion to quash the warning order filed herein, but insisting upon the same, and being compelled to answer herein over its objections," and denied all the material allegations contained in the complaint, and set up other affirmative defenses.
The cause was first tried to a jury on March 31, 1938, and upon a mistrial resulting, it was again tried on July 6, 1938, and before the introduction of any evidence, appellant again objected to being forced to trial and renewed its motions to quash the attachment and warning order, all of which were overruled by the trial court. The trial resulted in a judgment in favor of appellee in the sum of $ 2,000. From this judgment comes this appeal.
The undisputed facts in this record show that appellant is now, and has been for several years prior to this suit, a corporation organized under the laws of the state of Maine, but duly licensed to do business, and is doing business, in this state with a designated agent, John W. Newman, in the city of Little Rock. There were no agents for service in Crawford county. For the purposes of personal or constructive service, appellant is in the same position as any domestic corporation in Arkansas.
As stated above, appellee does not rely on personal service on appellant, but does rely on constructive service by warning order and also contends that appellant, though not personally served, entered its appearance in the cause, voluntarily, and that the court below was justified in rendering personal judgment against appellant, on the jury's verdict. To these views we cannot agree for reasons hereafter...
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