Moreno-Burkham Construction Co. v. Thorpe

Supreme Court of Arkansas

Moreno-Burkham Construction Co. v. Thorpe

237 S.W. 427, 152 Ark. 550, 1922 Ark. LEXIS 2

CourtSupreme Court of Arkansas

DecidedMarch 27, 1922

StatusPublished

Cited by1 cases

This text of 237 S.W. 427 (Moreno-Burkham Construction Co. v. Thorpe) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Moreno-Burkham Construction Co. v. Thorpe, 237 S.W. 427, 152 Ark. 550, 1922 Ark. LEXIS 2 (Ark. 1922).

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Opinion

Hart, J.,

(after stating1 the facts). The return of service on the writ of garnishment in this cause shows no sufficient service on the garnishee, MorenoBurkham Construction Company. It does not appear from the record whether the Moreno-Burkham Construction Company was a foreign or domestic corporation, or a partnership. If it was a domestic corporation, the return is not sufficient, because it does not show that service was had on the agent of the corporation during the absence of the president of the company, as required by § 1147 of Crawford & Moses’ Digest. If appellant was a foreign corporation, the return is not sufficient because it does not show that service was had upon the agent designated by the corporation in the manner provided by § 1829 of Crawford & Moses’ Digest. See Arkansas Construction Co. v. Mullins, 69 Ark. 429, and Southern Building & Loan Association v. Hallum, 59 Ark. 583. Neither does the return show that the summons was served upon the agent, servant, or employee in charge of a branch office or other place of business of the corporation in Washington County, Ark. Hence.the return is not sufficient as covering the matter of service of process on domestic and foreign corporations who keep or maintain a 'branch office or other place of business in any of the counties of this State. See Fort Smith Lbr. Co. v. Shackleford, 115 Ark. 272, and Terry Dairy Co. v. Parker, 144 Ark. 401.

If appellant was a partnership, service must have been had upon the individual members composing the partnership, and the return is insufficient because it does not show that fact.

The effect of the above decisions is that no presumption can be indulged upon an appeal from a judgment by default that there was some other and different service had from that which appears in the record.

The judgment is therefore reversed and the cause remanded with directions to proceed in the cause, the appellant having entered its appearance by appealing.

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Hart, J.,

(after stating1 the facts). The return of service on the writ of garnishment in this cause shows no sufficient service on the garnishee, MorenoBurkham Construction Company. It does not appear from the record whether the Moreno-Burkham Construction Company was a foreign or domestic corporation, or a partnership. If it was a domestic corporation, the return is not sufficient, because it does not show that service was had on the agent of the corporation during the absence of the president of the company, as required by § 1147 of Crawford & Moses’ Digest. If appellant was a foreign corporation, the return is not sufficient because it does not show that service was had upon the agent designated by the corporation in the manner provided by § 1829 of Crawford & Moses’ Digest. See Arkansas Construction Co. v. Mullins, 69 Ark. 429, and Southern Building & Loan Association v. Hallum, 59 Ark. 583. Neither does the return show that the summons was served upon the agent, servant, or employee in charge of a branch office or other place of business of the corporation in Washington County, Ark. Hence.the return is not sufficient as covering the matter of service of process on domestic and foreign corporations who keep or maintain a 'branch office or other place of business in any of the counties of this State. See Fort Smith Lbr. Co. v. Shackleford, 115 Ark. 272, and Terry Dairy Co. v. Parker, 144 Ark. 401.

If appellant was a partnership, service must have been had upon the individual members composing the partnership, and the return is insufficient because it does not show that fact.

The effect of the above decisions is that no presumption can be indulged upon an appeal from a judgment by default that there was some other and different service had from that which appears in the record.

The judgment is therefore reversed and the cause remanded with directions to proceed in the cause, the appellant having entered its appearance by appealing.

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237 S.W. 427, 152 Ark. 550, 1922 Ark. LEXIS 2, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moreno-burkham-construction-co-v-thorpe-ark-1922.

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