W. T. Adams Machine Co. v. Castleberry

106 S.W. 940, 84 Ark. 573, 1907 Ark. LEXIS 265

• Court: Supreme Court of Arkansas
• Decided: December 23, 1907
• Status: Published

Opinion

Hart, J.,

(after stating the facts.) We are met at the threshold of this case by the contention that the return of service on the summons shows no sufficient service.

There is no allegation in the complaint as to whether appellant is a partnership, a foreign or domestic corporation. There is an averment, in the motion to quash service of summons, that appellant is a foreign corporation, and has an agent at Plummerville, Arkansas, upon whom service should be had, and this allegation is nowhere denied in the record. The summons was served, as shown by the return, upon “T. W. Barnes, agent.” Barnes was only a traveling salesman. He had no control over the business of the corporation, and service upon him -was not sufficient. Arkansas Construction Company v. Mullins, 69 Ark. 429; Lesser Cotton Company v. Yates, 69 Ark. 396.

The answer of the defendant, in the form and manner in which it was made, was not a waiver of the service of summons upon it. Spratley v. La. & Ark. Ry. Co., 77 Ark. 412; Union Guaranty & Trust Co. v. Craddock, 59 Ark. 593; Baskins v. Wylds, 39 Ark. 347.

This view of the case renders it unnecessary to notice the other contentions made by appellant.

Judgment reversed and cause remanded, with directions to proceed in the cause; the appellant having entered his appearance by appealing in this cause.