Webb v. Strait
| Decision Date | 21 March 1949 |
| Docket Number | 4-8817 |
| Citation | 218 S.W.2d 722,214 Ark. 890 |
| Parties | Webb v. Strait, Judge |
| Court | Arkansas Supreme Court |
Prohibition to Pope Circuit Court; Audrey Strait, Judge.
Affirmed.
Reece Caudle and Richard Mobley, for petitioner.
E L. Hollaway, for respondent.
A suit was filed in the Pope County Circuit Court on September 1, 1948, which was given the number 2352, by A D. Hamm against James Webb, in which judgment was prayed both for property damage and personal injury resulting from a collision between automobiles owned by the respective parties. It was alleged that Webb was a resident of Pope county, Arkansas, and on this complaint a summons was issued and served on Webb in the State of Louisiana, of which state he was alleged to be and is a resident.
On September 27, 1948, without having dismissed this suit, and without permission from the court, Hamm filed a second suit with the same case number, which neither referred to the first suit nor incorporated the first complaint. This second complaint recited that Webb was a non-resident of the State of Arkansas and was a resident of the State of Louisiana, and was a resident of this latter state at all times referred to in the complaint.
Summons was issued on the second complaint under the Non-resident Motorist Act, appearing as § 1375, Pope's Digest. Thereafter Webb appeared specially for the purpose of challenging the jurisdiction of the court by moving to quash the summons issued on the second complaint, which motion was overruled and Webb has applied here for a writ of prohibition. The parties agree that the proceeding may be treated as a petition for certiorari.
We think the motion by whatever name it may be called was properly overruled. There is no contention that there are involved two different causes of action, as the second suit was in effect, and in fact, the same as the first. The same facts are alleged in each suit as constituting the cause of action.
The plaintiff realized that he had not properly proceeded under the Non-resident Motorist Act in his first suit, and he undertook to comply with the statute by filing the second suit. It is true Hamm did not dismiss his first suit, but he filed a second suit to supersede it. It was held in the case of Waters-Pierce Oil Co. v. Bridwell, 103 Ark. 345, 147 S.W. 64, Ann. Cas. 1914B, 837, that an amended pleading filed as a substitute for the original pleading...
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Talkington v. Schmidt
...it is the province of the court, not of counsel, to declare on what pleadings a case shall be tried.' The case of Webb v. Strait, Judge, 214 Ark. 890, 218 S.W.2d 722, is cited by appellant in further support of his contention. There the first complaint stated the defendant was a resident of......
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Morphew v. Safeco Ins. Co. of America
...from this state. Such allegation at least was essential to make the provisions of the nonresident motorist act applicable. Webb v. Strait, 214 Ark. 890, 218 S.W.2d 722. The purpose of the statute was not to search out or fix service on residents of this state who simply cannot be found and ......
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Webb v. Pope County Circuit Court, 4-8817.
...218 S.W.2d 722 ... POPE COUNTY CIRCUIT COURT et al ... No. 4-8817 ... Supreme Court of Arkansas ... March 21, 1949 ... Prohibition to Circuit Court, Pope County; Audrey Strait, Judge ... Proceeding by James Webb against the Pope County Circuit Court for writ of prohibition against proceeding in action by A. D. Hamm against James Webb, wherein the parties agreed that the proceeding might be treated as a petition for certiorari ... Order ... ...