#### Webb v. Strait, Judge.

4-8817

218 S. W. 2d 722

Opinion delivered March 21, 1949.

*891 Reece Caudle and Richard Mobley, for petitioner.

E. L. Eollaivay, for respondent.

FRANK Gr. Smith, J.

A suit Was filed in tbe Pope County Circuit Court on September 1, 1948, wbicb was given tbe number 2352, by A. D. Hamm against James Webb, in wbicb judgment was prayed both for property damage and personal injury resulting from a collision between automobiles owned by tbe respective parties. It was alleged that Webb was a resident of Pope county, Arkansas, and on tbis complaint a summons was issued and served on Webb in tbe State of Louisiana, of wbicb state be was alleged to be and is a resident.

On September 27,1948, without having dismissed tbis suit, and without permission from tbe court, Hamm filed a second suit with tbe same ease number, wbicb neither referred to tbe first suit nor incorporated tbe first complaint. Tbis second complaint recited that Webb was a non-resident of tbe State of Arkansas and was a resident of tbe State of Louisiana, and was a resident of tbis latter state at all times referred to in the complaint.

Summons was issued on tbe second complaint under tbe Non-resident Motorist Act, appearing as § 1375, Pope’s Digest. Thereafter Webb appeared specially for tbe purpose of challenging tbe jurisdiction of tbe court by moving to quash tbe summons issued on tbe second complaint, wbicb motion was overruled and Webb has applied here for a writ of prohibition. Tbe parties agree that tbe proceeding may be treated as a petition for certiorari.

We think tbe motion by whatever name it may be called was properly overruled. There is no contention that there are involved two different causes of action, as tbe second suit was in effect, and in fact, tbe same as tbe first. Tbe same facts are alleged in each suit as constituting tbe cause of action.

Tbe plaintiff realized that be bad not properly proceeded under tbe Non-resident Motorist Act in bis first *892suit, and he undertook to comply with the statute by filing the second suit. It is true Hamm did not dismiss his first suit, but he filed a second suit to supersede it. It was held in the case of Waters-Pierce Oil Co. v. Bridwell, 103 Ark. 345, 147 S. W. 64, Ann. Cas. 1914B, 837, that an amended pleading filed as a substitute for the original pleading supersedes it and the original pleading-ceases to be a part of the record, and that holding was reaffirmed in the case of American Bonding Co. v. Morris, 104 Ark. 276, 148 S. W. 519. No answer has yet been filed and the statute provides (§ 1461, Pope’s Digest) “that the plaintiff may amend his complaint without leave at any time before an answer is filed and without prejudice to the proceeding already had. ’ ’

Webb has been called upon to defend not two suits, but only one, this being the second complaint which supersedes the first. The first complaint erroneously alleged that Webb was a resident of this state whereas the second complaint alleged that he was a resident of the State of Louisiana. In all other respects the complaints are substantially identical and the same facts are alleged as constituting the cause of action in each of the complaints. The allegation that Webb was a nonresident was essential to make the provisions of the Non-resident Motorist Act applicable and available and the motion to quash the process issued upon the filing of the second complaint was therefore properly overruled and the order to that effect is therefore' affirmed.