Southern Kansas Stage Lines Co. v. Holt, 4-4266.

• Decision Date: 10 February 1936
• Docket Number: No. 4-4266.,4-4266.
• Citation: 90 S.W.2d 473
• Parties: SOUTHERN KANSAS STAGE LINES CO. v. HOLT, Judge.
• Court: Arkansas Supreme Court

Page 473

90 S.W.2d 473

SOUTHERN KANSAS STAGE LINES CO. v. HOLT, Judge.

No. 4-4266.

Supreme Court of Arkansas.

February 10, 1936.

Original proceeding in prohibition by the Southern Kansas Stage Lines Company against Jack Holt, Judge of the Fourteenth Judicial District.

Application for writ of prohibition denied.

Marvin A. Hathcoat, of Harrison, and Carmichael & Hendricks, of Little Rock, for petitioner.

V. D. Willis and Henley & Rea, all of Harrison, for respondent.

JOHNSON, Chief Justice.

This is an original proceeding in prohibition filed by petitioner, Southern Kansas Stage Lines Company, to inhibit the respondent, Jack Holt, judge of the Fourteenth judicial district, from proceeding to hear and determine the case of Sam Ruff v. Petitioner, pending in the circuit court of Boone county.

The record reflects that on September 24, 1935, one Sam Ruff filed his complaint in the Boone circuit court against petitioner, Southern Kansas Stage Lines Company, and for his cause of action alleged that on August 7, 1935, while in the exercise of due care for his own safety and while driving on a state highway, as he had a right to do, by and through the carelessness and negligence of petitioner's bus driver, concurred in by the negligence of another, he was severely and permanently injured, to his damage in the sum of $3,000. Summons was duly issued on the complaint thus filed, and the same was served upon petitioner in the following manner: First, the sheriff of Boone county on September 24, 1935, delivered to petitioner's ticket agent and representative in Boone county a copy of the summons; second, the sheriff of Pulaski county delivered a copy of the summons to John W. Newman, petitioner's duly designated agent for service in the state of Arkansas, on September 30, 1935.

The recitals of the summons followed the language of section 1140, Crawford & Moses' Dig., as to manner, means, and time for service. No return of the summons was filed in the Boone county clerk's office until December 11, 1935. The Boone circuit court met in special adjourned session on October 24, 1935, and again met in special adjourned session November 28, 1935. On December 11, 1935, petitioner filed its petition and bond for removal to the federal District Court for the Western District of Arkansas in which Boone county is situated. The court denied the removal because the petition and bond were not filed within the time required by law. Petitioner's contention is that, since the summonses were not returned by the sheriff and filed with the clerk in Boone county until December 11, 1935, petitioner was not required to answer or plead to the complaint until that time, and that for this reason the petition and bond for removal were timely interposed. This contention puts form above substance. Section 29 of the Judicial Code (28 U.S. C.A. § 72) in effect provides that the petition...