211 S.W.2d 889 | Ark. | 1948
Petitioner asks us to grant writ of prohibition against Honorable Audrey Strait, Judge of the circuit court of Yell county, directing him to proceed no further with trial of a certain cause pending in said court wherein Thurman L. Ramey, Linda Lee Ramey, Ella Rea Ramey, Inis Ramey, A. C. McCarty and Freddie Joan McCarty are plaintiffs and the petitioner, Capital Transportation Company, and Emerson Williams are defendants. Said suit was brought in the lower court to recover damages alleged to have been sustained by the plaintiffs resulting from a collision which occurred in North Little Rock between an automobile owned and driven by plaintiff, Thurman L. Ramey, and a bus owned by petitioner, Capital Transportation Company, and operated by Emerson Williams as driver. It was averred in the complaint that all of the plaintiffs were residents of Yell county; and the jurisdiction of the Yell circuit court was invoked on that ground under authority of Act 314 of the General Assembly of Arkansas of 1939.
The petition filed in this court shows that the petitioner filed in the lower court a motion to dismiss the complaint, alleging that the injuries occurred in Pulaski county and that all of the plaintiffs were residents of Pulaski county at the time the injuries occurred; and that on January 14, 1948, a hearing was held on this motion, at which eight witnesses testified on behalf of the defendants and seventeen witnesses testified on behalf of the plaintiffs. After hearing this testimony the lower court overruled the motion to dismiss.
A transcript of the evidence introduced on the hearing of this motion is attached to the petition filed in this *573 court; and from this evidence petitioner argues that it was shown that the plaintiffs were residents of Pulaski county at the time of the collision.
A recital of the testimony at the hearing below is unnecessary. It suffices to say that the record shows clearly that there was an issue of fact presented to the lower court by this testimony. We have frequently held, in cases of this kind, that where there is a contradiction in the testimony presented to the lower court on a motion challenging jurisdiction the writ of prohibition will not be awarded by us; and the party seeking such relief will be remitted to his remedy by way of appeal, should final judgment go against him in the lower court.
In the recent case of Twin City Lines, Inc., v. Cummings, Judge,
"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 mine 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. Crowe v. Futrell,
The rule laid down above is controlling here.
The writ of prohibition will be denied. *575