Twin City Lines v. Cummings

• Decision Date: 15 December 1947
• Docket Number: No. 4-8416.,4-8416.
• Citation: 206 S.W.2d 438
• Parties: TWIN CITY LINES, Inc., v. CUMMINGS, Circuit Judge.
• Court: Arkansas Supreme Court

Page 438

206 S.W.2d 438

TWIN CITY LINES, Inc., v. CUMMINGS, Circuit Judge.

No. 4-8416.

Supreme Court of Arkansas.

December 15, 1947.

Original proceeding on the petition of Twin City Lines, Inc., against Hon. Maupin Cummings, Circuit Judge of Benton County, for a writ of prohibition to prevent the Benton Circuit Court from proceeding with trial of a particular action.

Writ denied.

Harper, Harper & Young, of Fort Smith, for petitioner.

Jeff Duty, of Rogers, for respondent.

MILLWEE, Justice.

This is an original proceeding by petitioner, Twin City Lines, Inc., seeking a writ of prohibition to prevent the Benton Circuit Court from proceeding with trial of an action filed against petitioner in that court by Fred Pearce, Administrator of the estate of his deceased daughter, Helen Pearce.

The record discloses that on April 10, 1947 the administrator filed a complaint against petitioner for damages in the injury and death of the said Helen Pearce, deceased, alleged to have resulted from the negligent operation of one of petitioner's buses at Fort Smith, Sebastian County, Arkansas. The complaint further alleged that both Fred Pearce and Helen Pearce were residents of Benton County, Arkansas at the time of her death.

Petitioner appeared specially in the Benton Circuit Court on June 6, 1947, and filed its motion to dismiss the complaint for improper venue and to quash the service of summons upon it in the action. The motion alleged that deceased, Helen Pearce, was a resident of the Fort Smith District of Sebastian County, Arkansas at the time of the accident and at the time of her death, within the meaning of Act 314 of 1939, which provides that such action must be brought either in the county where the accident happened or in the county where the deceased resided at the time of injury, or death; that the complaint showed on its face that the accident occurred in the Fort Smith District of Sebastian County; and that the Benton Circuit Court was, therefore, without jurisdiction of the person of petitioner.

At a hearing before the Benton Circuit Court on the motion to quash and dismiss, petitioner offered testimony to show that Helen Pearce was a resident of Sebastian County at the time of her death, while the administrator-plaintiff offered evidence to show that his daughter resided in Benton County at said time. After hearing this testimony the trial court overruled petitioner's motion to quash the service and dismiss the suit. Petitioner then filed its application in this court for a writ of prohibition and has attached thereto the record of the proceedings in the Benton Circuit Court, including a transcript of the evidence taken at the hearing on the motion to quash and dismiss.

It will be observed that the question as to whether the trial court had jurisdiction of the person of petitioner turns on the fact of Helen Pearce's residence at the time of her death. The fact of deceased's residence at the time of her death is, therefore, a controverted and contested question which the trial court was called upon to determine from the testimony adduced on that issue. This court has repeatedly held that where the jurisdiction of a trial court depends upon a question of fact, a writ of prohibition will not lie. Crow v. Futrell, 186 Ark. 926, 56 S.W.2d 1030; Terry v. Harris, 188 Ark. 60, 64 S.W.2d 80, 82; La Fargue v. Waggoner, 189 Ark. 757, 75 S.W. 2d 235; Chapman & Dewey Lumber Co. v. Means, 191 Ark. 1066, 88 S.W.2d 829.

In Sparkman Hardwood Lumber Co. v. Bush, 189 Ark. 391, 72 S.W.2d 527, 528, this court said: "`The office of the writ of prohibition is to restrain an inferior tribunal from proceeding in a matter not within its jurisdiction; but it is never granted unless the inferior tribunal has clearly exceeded its authority and the party applying for it has no other protection against the wrong that shall be done by such usurpation. * * * Where the court has jurisdiction over the subject-matter and the question of its jurisdiction of the person turns upon some fact to be determined by the court, its decision that it has jurisdiction, if wrong, is an error, and prohibition is not the proper remedy.' Order of Railroad Conductors of America v. Bandy, 177 Ark. 694, 8 S.W.2d 448, 450; Merchants' & Planters' Bank v. Hammock, 178 Ark. 746, 12 S.W.2d 421; Lynch v. Stephens, 179 Ark. 118, 14 S.W.2d 257; Roach v. Henry, 186 Ark. 884, 56 S.W.2d 577; Crowe v. Futrell, 186 Ark. 926, 56 S.W.2d 1030."

Petitioner argues that the circuit court placed the wrong construction on the testimony which was introduced at the hearing on its motion to quash and dismiss, and says that the facts are undisputed that deceased was a resident of Sebastian County, Arkansas at the time of her death. We do not regard the testimony as to deceased's residence as being wholly undisputed and certainly the legal effect of such facts is a matter that is highly controversial. In Robinson v. Means, Judge, 192 Ark. 816, 95 S.W.2d 98, 99; Justice...