77 Ark. 412 | Ark. | 1906
Lead Opinion
(after stating the facts.) Appellee had the cause dismissed under section 6067, Kirby’s Digest, which provides that “an action, other than those mentioned in sections 6060, 6061, against a corporation created by the laws of this State may be brought in the county in which it is situated or has its principal office or place of business, or in which its chief officer resides.”
For the purpose of service under this statute, a corporation is situated where it “has its principal office or place of business.” It can be served there, or in the county “in which its chief officer resides,” but not elsewhere. The qualifying term “principal” precludes the idea of there being more than one “office or place of business” where the corporation may be served. If service is had at its office or place of business, to be valid it must be at its “principal” office or place of business, and we cannot construe this to be more than one, without changing the meaning of the word “principal.” The language is plain, and nothing is left for construction. The Legislature evidently had a purpose in using the adjective “principal,” and it is our duty to carry out that purpose by giving it its natural meaning, and its restrictive and qualifying effect.
The admission of record is that “its principal office and place of business is at Stamps.” That being true, the further admission that certain officers “for purposes of convenience” have offices in Texarkana, where the business of said offices is conducted principally,” must necessarily refer to other than the principal office or place of business; otherwise the admission would be contradictory and nonsensical. The trial court must have found as a fact that the “principal office or place of business” was at Stamps, and we cannot say that such finding is erroneous. It follows that there was no service.
2. Did appellee enter its appearance? It suggested in limine the lack of service, and only appeared for the purpose of moving to dismiss. This question is ruled by Union Guaranty & Trust Co. v. Craddock, 59 Ark. 593, where we held that “under the code of practice, a plea in abatement that the court has no jurisdiction of defendant’s person for want of proper service is not waived by pleading in bar to the complaint, nor by appealing from an adverse judgment.” There is no doubt but that where a party, who has not been served with summons, answers, consents to a continuance, goes to trial, takes an appeal, or does any other substantial act in a cause, such party by such act will be deemed to have entered his appearance. But this rule of practice does not apply in cases where the party on the threshold objects to the jurisdiction of his person, and maintains his objection in every pleading he may thereafter file in the case. Where he thus preserves his protest, he can not be said to have waived his objection to the jurisdiction of his person.
Affirm.
Rehearing
ON REHEARING.
We have considered the motion to rehear in this case, and are of the opinion that it should be overruled, though a majority of us think that the former opinion delivered in this case should be modified to some extent. The statute provides that an action against a corporation of this State “may be brought in the county in which it is situated, or has its principal office or place of business, or in which its chief officer resides.” Kirby’s Digest, § 6067. In the former opinion it was said that, within the meaning of this statute, a corporation is situated where it has its principal office or place of business, and that “it can be served there or in the county in which its chief officer resides, but not elsewhere.” A further consideration of the case has convinced a majority of the judges that this interpretation of the statute is not quite correct.
It is true that, many corporations have their principal office and place of business in the county where the corporation :is situated; but they may be separate, and we think that, within the meaning of this statute, a corporation may be situated in one county, its principal office or place of business may be in another, while its chief officer may reside in still another county in the State. Where that is the case, then, under this statute, an action against the corporation may be brought in either of those three counties.
But there is a separate provision as to railroad companies which provides that actions against them for injuries to person or property, or upon a liability as common carrier, may be brought in any county through or into which the road passes. Id. § 6068. The words “may be brought” in this statute have the meaning of “shall be brought,” and are mandatory. So an action against a railway company for any of the causes named in this section must be brought in one of the counties through or into which the railroad runs.
This is an action against a railway company, but, being brought to recover for value of services alleged to have been performed by the plaintiff for defendant as boilermaker, does not come within the special provision as to railway companies above referred to. If this action had been brought against the St. Louis, Iron Mountain & Southern Railway Company, whose principal place of business in this State is at Little Rock, then, under the law as stated in the former opinion, it could only be brought against the company in Pulaski County, for it is not one of the actions which the statute provides may be brought in any county through which the road runs. That view of the statute is contrary to the established practice in this State, and, it seems to a majority of us, not in accordance with the méaning of the statute. As supporting our conclusion, we refer to some cases from other States where similar statutes were considered. Bristol v. Chicago Ry. Co., 15 Ill. 436; Bank of N. A. v. Chicago Ry. Co., 82 Ill. 493; Slavins v. So. Pac. Ry. Co., 51 Mo. 308; Crutsinger v. Mo. Pac. Ry. Co., 82 Mo. 64; Richardson v. Burlington Ry. Co., 8 Iowa, 260.
A majority of us, as before stated, think that this action, to quote the language of the statute, “may be brought in any county where the corporation is situated, or has its principal office or place of business, or in which its chief officer resides.”
The agreed statement of facts in this case shows that this railway of the defendant company was not located in the county where the action was brought, neither was its principal office, nor the residence of its chief officer there. So, as we said in the former opinion, the action could not be brought in that county.
It will be noticed that this is not a question of service of summons, but of bringing an action in the wrong county. It may be true that, if no objection to the venue had been made in the lower court, it would be too late to make it now. We need not decide that question, for objection was made, and the fact that defendant, after its objection to the venue had been overruled, went to trial on the merits and afterwards appealed from the judgment against it does not prevent it from raising the question of venue in this court.
Motion to rehear overruled.
adhere to the construction of Kirby’s Digest, § 6067, expressed in the former opinion herein.
