Pepsi-Cola Bottling Co. v. Steel

431 S.W.2d 854, 245 Ark. 284, 1968 Ark. LEXIS 1193

• Court: Supreme Court of Arkansas
• Decided: September 30, 1968
• Docket: 4669
• Status: Published

Opinions

Conley Byrd, Justice.

Petitioners Pepsi-Cola Bottling Company and Ernest Bowden seek a writ to prohibit respondent, Bobby Steel, Circuit Judge of Scott County, from proceeding in a cause which had been dismissed at a prior term of court.

The record shows that a complaint was filed by Mrs. Scott Jones, Administratrix of the Estate of David Barrow, deceased on September 12, 1967, for damages arising out of an automobile collision in Scott County. October 2, 1967, Pepsi-Cola filed a motion to quash service and Bowden filed a motion to make more definite and certain. After a hearing on the motions on October 13, 1967, Bowden filed on October 16, 1967, a motion to dismiss on the alleged ground that Mrs. Jones l\ad not been properly appointed as Administratrix. Mrs. Jones amended her complaint on the 18th day of October, caused summons to be issued and obtained service on the same date.

Under date of October 23, 1967, there was filed an order which states:

“On this 20th day of October, 1967, is presented to the Court the motion of the defendant to dismiss the complaint filed by the plaintiff herein, and from said motion and other matters and proof before Court, the Court finds:

That the defendants’ motion should be, and the same is hereby, sustained, and this cause is dismissed without prejudice, at the cost of the plaintiff.”

The May term of the Scott County Circuit Court, at which the October 20th order was entered, expired with the beginning of the November term on Monday, November 6, 1967. On November 9th, petitioners filed their complaint for damages arising out of the same collision in the Circuit Court of Sebastian County.

In setting aside the order of October 20th after the expiration of the term, the court, April 20, 1968, found that the order dated the 20th day of October, 1967, and filed October 23, 1967, dismissing without prejudice the plaintiff’s complaint was signed at the instance of the petitioners at Nashville, Arkansas, without the court being informed that on the 18th day of October an amendment to the Scott County complaint had been filed.

Petitioner for the issuance of the writ contends that the April 20th order was after term time, Mrs. Jones did not file a verified complaint to set aside the October 20th order as required by Ark. Stat. Ann. § 29-508 (Repl. 1962), and that the Scott Circuit Court had no jurisdiction in the matter after expiration of term. We hold petitioners ’ contentions to be without merit. Ark. Stat. Ann. § 29-107 (Repl. 1962). We held in Howell v. Van Houton, 227 Ark. 84, 296, S.W. 2d 428 (1956), that an order entered without notice and at a time when the court was not in session was void and that the party seeking to set aside the same was not required to follow the statutory procedure for vacating or modifying a judgment.

Petition denied.

George Rose Smith & Fogleman, JJ., concur.