Terry v. Plunkett-Jarrell Grocery Co.

• Decision Date: 11 February 1952
• Docket Number: PLUNKETT-JARRELL,No. 4-9677,4-9677
• Citation: 246 S.W.2d 415,220 Ark. 3
• Parties: , 29 A.L.R.2d 1264 TERRY v.GROCERY CO. et al.
• Court: Arkansas Supreme Court

Page 415

246 S.W.2d 415

220 Ark. 3, 29 A.L.R.2d 1264

TERRY v. PLUNKETT-JARRELL GROCERY CO. et al.

No. 4-9677.

Supreme Court of Arkansas.

Feb. 11, 1952.

Rehearing Denied March 17, 1952.

J. B. Milham, Eureka Springs, Joe W. McCoy, Malvern, for appellant.

Moore, Burrow, Chowning & Mitchell, Jacoway & Jacoway and Townsend & Townsend, all of Little Rock, for appellees.

HOLT, Justice.

Appellant, a merchant in Benton, Saline County, without notice, left his family and business about November 22, 1949 with about $3600.00 in cash, and was not heard from until about January 22, 1950. At the time of his departure (apparently suffering from complete loss of memory), he was indebted to numerous creditors (including some of appellees) and when found in January, 1950, in Hattiesburg, Miss., returned home with only $10.00 of the $3600.00 remaining.

On January 10, 1950, those appellees, who were creditors, filed involuntary bankruptcy proceedings against appellant in the United States District Court and appellant was declared bankrupt. Appellee, Frank A. Mitchell, a resident of Saline County, was duly appointed receiver and Willis Townsend, a resident of Pulaski County, was appointed attorney for the receiver. The receiver took charge of appellant's business and operated it under orders of the bankruptcy court.

Following his return, appellant, by proper petition, asked for a review of the order declaring him bankrupt and U. S. District Judge Lemley said: 'The finding of the Referee that the debtor (A. O. Terry) absconded with a large sum of money with intent to defraud his creditors is clearly supported by substantial evidence, and his finding in that connection certainly cannot be said to be 'clearly erroneous'. * * * Not only was the Referee's finding on this point supported by substantial evidence, but in our estimation was a proper finding in the light of the evidence in the case', In re Terry, D.C., 97 F.Supp. 635, 638, but directed the Referee to reconsider the question of solvency.

Thereafter the bankruptcy suit was dismissed on a showing that appellant was not insolvent.

On March, 21, 1950, appellant filed the present suit in Saline County against appellees for the alleged unlawful conversion of his merchandise, and other property, and for damages to, and the destruction of, his business. Appellee, Frank A. Mitchell, was a resident of Saline County and all of the other appellees were residents of Pulaski County. Appellees, Mitchell and Willis Townsend, were duly served with process in Saline County and the remaining appellees were served in Pulaski County.

Appellees, appearing specially for such purpose, filed separate motions to quash services of summons on each and to dismiss appellant's complaint, on the theory and claim that neither the receiver, Mitchell, nor Townsend were bona fide resident defendants of Saline County, in the circumstances, so as to establish venue in that county and consequently the trial court lacked jurisdiction of the cause. On July 3, 1951, after hearing testimony on the issue all motions of appellees were sustained service of summons on each quashed, and appellant's complaint dismissed.

This appeal followed.

At the outset, appellant argues that the venue of the present suit is governed by Section 1 of Act 182 of the Acts of 1947 (now § 27-611, Ark.Stats.1947) which fixes the venue for damages to personal property: 'Section 1. Section One of Act 317 of the Acts of the General Assembly of Arkansas of 1941, be and the same is hereby amended to read as follows: 'Any action for damages to personal property by wrongful or negligent act may be brought either in the County where the accident occurred which caused the damage or in the county of the residence of the person who was the owner of the property at the time the cause of action arose.''

We cannot agree.

Appellant is seeking damages here for conversion of his property and business. We think the above act does not cover, and was not intended by the Legislature to cover, damages for an act of conversion. Its declared purpose was: 'Section 3. It is found and declared that in many instances litigants to actions for personal injury and property damage have a cause of action growing out of the same accident and that the jurisdiction for property damage is in one County and for personal injury in another County, and that as a result thereof an inconvenience and expense arises to the litigants and multiplicity of suits results therefrom, and because of these conditions * * *.'

Its purpose was to relieve litigants from having to sue in more than one county for personal and property damages 'growing out of the same accident,' that is where the cause of action arose from a corporeal or physical injury to the person or property.

While it does not appear that we have passed directly on this point, we are supported in our view in the case of Mason v. Buck, 99 Cal.App. 219, 278 P. 461, 462. There the court, in construing a venue statute similar in effect to the above, said: 'From our consideration of the purposes of the Code amendment as outlined in the decisions cited we are satisfied that the Legislature intended to except from the general provisions of section 395 only such actions for injury to person or property, caused by the wrongful act or negligence of another, where the cause of action arose from a 'corporeal or physical' injury to the person or property, and that it was not intended to include every invasion of personal and property rights. As an action for conversion is not a corporeal injury to property within this meaning, it would follow that it should be tried in the county where the defendant resides within the general provision of section 395.'

Under our statute, § 27-615, Ark.Stats.1947, the Saline Circuit Court was without jurisdiction. This statute provides: 'Where any action embraced in section 96 [§ 27-613], is against several defendants, the plaintiff shall not be entitled to judgment against any of them on the service of summons in another county than that in which the action is brought, where no one of the defendants is summoned in that county, or resided therein at the commencement of the...