State v. Ehle

Decision Date13 April 1914
Docket Number(No. 256.)
Citation166 S.W. 535
PartiesSTATE ex rel. MOOSE, Atty. Gen., v. EHLE.
CourtArkansas Supreme Court

Appeal from Circuit Court, Pulaski County; G. W. Hendricks, Judge.

Proceeding by the State of Arkansas, on the relation of Wm. L. Moose, Attorney General, against L. C. Ehle, doing business under the firm name of the Little Rock Cotton Oilmill, in which an attachment was sued out. From a judgment sustaining a motion to quash the attachment, the State appeals. Affirmed.

Wm. L. Moose, Atty. Gen., and Jno. P. Streepey, Asst. Atty. Gen., for the State. Rose, Hemingway, Cantrell & Loughborough, of Little Rock, for appellee.

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 antitrust laws of the state, it being alleged in the complaint that defendant owns certain oilmills 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, subd. 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 restriction of the right to attach to 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...

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