206 S.W.2d 438 | Ark. | 1947
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, it 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 *571 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. Crowe v. Futrell,
In Sparkman Hardware Lbr. Co. v. Bush,
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,
In the case of Simms Oil Co. v. Jones, Judge,
"We have held in several cases, the most recent of which is the case of Chapman Dewey Lumber Co. v. Means,
The holding in the case of Robinson v. Means, supra, was reaffirmed in the case of Safeway Cab Storage Co. v. Kincannon, Judge,
It, therefore, appears that petitioner has an adequate remedy by appeal from the order of the trial court overruling the motion to quash and dismiss. There was a time when the remedy by appeal could not be said to be an adequate one. Under many of our earlier decisions it was held that an appeal to this court served to enter the appearance of a defendant, no matter how erroneous the decision of a trial court might prove to be on a question as to its jurisdiction of the person. This technical and unreasonable rule of procedure was severely criticized by Justice BUTLER, speaking for the court, in Chapman Dewey Lumber Co. v. Means, supra. The rule was finally abolished and the cases supporting it were directly overruled in Anheuser-Busch, Inc. v. Manion,
Prior to our decision in the recent case of Twin City Coach Co. v. Stewart, Adm'r.,
The circuit judge had a right to determine the question of the residence of the deceased, Helen Pearce, at the time of her death. If the question was determined erroneously, petitioner has an adequate remedy by appeal and prohibition will not lie.
The writ is, therefore, denied.