State ex rel. Attorney General v. Ehle

• Court: Arkansas Supreme Court
• Writing for the Court: MCCULLOCH, C. J.
• Citation: State ex rel. Attorney General v. Ehle, 166 S.W. 535, 112 Ark. 385 (Ark. 1914)
• Decision Date: 13 April 1914
• Docket Number: 256
• Parties: STATE ex rel. THE ATTORNEY GENERAL v. EHLE

166 S.W. 535

112 Ark. 385

STATE ex rel. THE ATTORNEY GENERAL v. EHLE

No. 256

Supreme Court of Arkansas

April 13, 1914

Appeal from Pulaski Circuit Court, Third Division; G. W. Hendricks Judge; affirmed.

Judgment affirmed.

Wm. L Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellant.

While the amount which might be recovered in this case is indeterminate, yet there is a basis provided for ascertaining definitely the amount to be recovered. There is certainly a contractual relation between the defendant and the State of Arkansas, the obligation of which attached when he embarked in business in this State, and we can see no good reason why an action for a penalty will not support attachment. If the remedy is not clearly excluded by the statute, it should be sustained. 24 So. 847; 3 Blackstone Com., 159; 92 F. 672; 213 U.S. 108; Fed. Cas. 13341.

Rose Hemingway, Cantrell & Loughborough, for appellee.

The action is for the recovery of penalties, and is clearly one arising ex delicto. The statute does not authorize an attachment except where the claim is based upon a debt or demand arising upon contract. Kirby's Dig., § 344; 48 Ark. 302; 56 Ark. 592; 58 Ark. 440; Id. 601; 1 Shinn on Attachments, § 26; Drake on Attachments, § 10.

OPINION

MCCULLOCH, C. J.

The Attorney General instituted this action on behalf of the State against the defendant, L. C. Ehle, to recover penalties for alleged violations of the anti-trust laws of the State, it being alleged in the complaint that defendant owns certain oil mills in the State and is engaged in the business of selling and buying cotton seed in several of the cities and towns, and that he unlawfully entered into and became a member of a pool or trust with certain corporations engaged in the same line of business to fix and maintain the price of cotton seed in the State.

Defendant was, and is, a nonresident of the State, and the Attorney General, at the commencement of the action, sued out a writ of general attachment and caused same to be served upon property of defendant.

Defendant appeared specially by his attorney, and, without entering his appearance in the action, moved to quash the attachment on the ground, among others, that the cause of action set forth in the complaint does not constitute a debt or demand arising upon contract.

The court sustained the motion and quashed the attachment, and the State has appealed.

The defendant being a nonresident and absent from the State, there was no method of acquiring jurisdiction by personal service nor by constructive service unless it be held that the attachment was proper.

The statutes of this State provide that "an attachment shall not be granted on the ground that the defendant or defendants, or any of them, is a foreign corporation or nonresident of this State for any claim other than a debt or demand arising upon contract." Kirby's Digest, § 344, subdiv. 8.

In the case of Messinger v. Dunham, 62 Ark. 326, 35 S.W. 435, which is the only decision of this court bearing directly on the question, Judge RIDDICK, speaking for the court, said:

"This relation of the right to attach debts and demands arising upon contract is for the purpose of excluding actions for torts and actions where 'the contract relations between the parties do not furnish a basis upon which the measure of liability may be ascertained,'" citing 1 Wade on Attachments, § 12.

Another decision of this court bearing, to some extent, upon the question is that of Baltimore & Ohio Telegraph Co. v. Lovejoy, 48 Ark. 301, 3 S.W. 183, where it was held that the language of the Constitution limiting the jurisdiction of justices of the peace excluded an action to recover a penalty. The court said:

"Unless, therefore, this is an action ex contractu, the objection must be sustained. Now, a relation of contract does exist between the sender of a message and the telegraph company. But the action to recover the statutory penalty does not arise on the contract to transmit, but on the statute which imposes the penalty for neglect of the duty which the company owes to the public."

The authorities seem to be uniform, as far as an expression has been made at all, on statutes confining the right to attachments to actions arising ex contractu.

"In order for plaintiff to be entitled to the writ, it is essential that contractual relations exist between him and defendant, or else that the contract be made for his benefit." 4 Cyc. 440.

Our statute is almost a literal copy of the...