Beal-Doyle Dry Goods Co. v. Odd Fellows Building Co.

Hart, J., (after stating the facts). In its motion to quash the service of summons upon it the Beal-Doyle Dry Goods Company alleged that it is a corporation organized under the laws of the State of Arkansas; that its principal place of business is in Pulaski County, and that its chief officer resides in Pulaski County, Arkansas; that it is not situated in Clay County and that the summons in this case was served upon it in Pulaski County. These allegations are not denied, and it follows that, under section 6067, Kirby’s Digest, the suit should have been brought against the defendant in Pulaski County, Arkansas. The Acts of 1909 provide that domestic corporations who keep or maintain in any of the counties of this State a branch office or other place of business shall be subject to suits in any of said counties and that service of summons shall be had upon the agent or employee in charge of its branch office in said county. Acts of 1909, page 293. It is contended by counsel for the plaintiff that the record does not show but that the plaintiff had a branch office in Clay County and that service might have been had under this statute. This was an appeal from the judgment of the circuit court and the presumption in favor of the judgment that all the prerequisites of the law have been complied with, which applies in case of a collateral attack on the judgment does not apply in case of a direct attack on the judgment, as in case of an appeal therefrom. Walker v. Noll, 92 Ark. 148; Davis et al. v. Whittaker et al., 38 Ark. 435; St. Louis, I. M. & S. Ry. Co. v; State,. 68 Ark. 561. It follows, then, that in order to obtain service on the defendant under the Acts of 1909, above referred to, the record should show that service of summons was had in compliance with the provisions of the act. Counsel for the plaintiff also seek to uphold the judgment under section 6072, Kirby’s Digest, on the ground that Gallup, the codefendant of Beal-Doyle Dry Goods Company, resided in Clay County, and was served with summons there. In our statement of facts we have copied that portion of the complaint under which the plaintiff seeks, to hold the defendant, Gallup, liable for the rent. A careful reading of it will show that the plaintiff only alleges that Gallup was in the possession of the building as agent for the Beal-Doyle Dry Goods Company, and, therefore, no cause of action against him is alleged in the complaint. The answer of the defendant, Beal-Doyle Dry Goods Company, in the form and manner in which it was made was not a waiver of the service of summons upon it. W. T. Adams Machine Co. v. Castleberry, 84 Ark. 573, and cases cited. It follows that the judgment must be reversed. The defendant, Beal-Doyle Dry Goods Company, having entered its appearance by its appeal, is now in court, and no further service on it is required. W. T. Adams Machine Co. v. Castleberry, supra; Waggoner v. Fogleman, 53 Ark. 181; Benjamin v. Birmingham, 50 Ark. 433; Gilbreath v. Kuykendall, 1 Ark. 50.