Masons' Fraternal Accident Ass'n v. Riley

60 Ark. 578 | Ark. | 1895

Hughes, J.

1. Service on auditor binds foreign insurance company. (after stating the facts.) Assuming for the purpose of this opinion that the court’s, finding of facts was correct, then “that the stipulation was not, in fact, filed with the auditor is of no consequence, if the company has done those things which imposed upon it the obligation and duty to file it. The law deduces the agreement on the part of the company to answer in the courts of this State, on service made upon the auditor, from the fact of its doing business in the State.” And this is conclusive, and cannot be disputed. Ehrman v. Teutonia Ins. Co., and authorities cited. 1 McCrary, C. C. 123.

2. Venue of action. But in this case the question is presented whether, the suit having been brought in Jefferson county, the service upon the auditor in Pulaski county bound the appellant to appear and answer, or suffer a judgment against it by default. The statutes direct where a variety of actions (naming them) may be brought, but there is no mention in any of these statutes, so far as we can find, of any direction or provision as to where an action of the kind at bar shall or may be brought. Section 5696,'Sand. & H. Dig., provides : “Every other action may be brought in any county in which the defendant, or one of several defendants, resides or is summoned.” This case forms no exception to the requirement of this section. The appellant was a foreign insurance company, having no residence or agent in Jefferson county, and was summoned in Pulaski county to appear and answer in the Jefferson county circuit court. By the service of the summons in this case upon the auditor in the count}' of Pulaski, requiring the appellant to answer in the circuit court of Jefferson county, that court acquired no jurisdiction of said appellant, and for the want of such jurisdiction the judgment by default is void.

The appellant’s motion for a new trial should have been granted, and its answer allowed to be filed.

The appellant, by appealing to this court, has entered its appearance to the action.

The judgment is reversed, and the cause is remanded for a new trial, with leave to the appellant to answer.