{ "id": 1630013, "name": "B-W ACCEPTANCE Corp. v. Hon. G. B. COLVIN, Jr., Judge", "name_abbreviation": "B-W Acceptance Corp. v. Colvin", "decision_date": "1972-04-10", "docket_number": "5-5810", "first_page": "306", "last_page": "312", "citations": [ { "type": "official", "cite": "252 Ark. 306" }, { "type": "parallel", "cite": "478 S.W.2d 755" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "230 Ark. 147", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1700103 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/230/0147-01" ] }, { "cite": "274 U.S. 490", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 81084 ], "weight": 3, "year": 1927, "opinion_index": 0, "case_paths": [ "/us/274/0490-01" ] }, { "cite": "244 Ark. 359", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719922 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/244/0359-01" ] }, { "cite": "227 Ark. 482", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1705301 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/227/0482-01" ] }, { "cite": "100 S.W. 2d 672", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "193 Ark. 405", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1411078 ], "opinion_index": 0, "case_paths": [ "/ark/193/0405-01" ] }, { "cite": "284 S.W. 15", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "171 Ark. 397", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1369437 ], "opinion_index": 0, "case_paths": [ "/ark/171/0397-01" ] }, { "cite": "29 A.L.R. 2d 1264", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 0 }, { "cite": "220 Ark. 3", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1660008 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/220/0003-01" ] }, { "cite": "241 Ark. 452", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1723975 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/241/0452-01" ] }, { "cite": "30 Ark. 249", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1881160 ], "opinion_index": 0, "case_paths": [ "/ark/30/0249-01" ] }, { "cite": "99 S.W. 72", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "81 Ark. 328", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1530648 ], "opinion_index": 0, "case_paths": [ "/ark/81/0328-01" ] }, { "cite": "61 S.W. 2d 440", "category": "reporters:state_regional", "reporter": "S.W.2d", "weight": 2, "opinion_index": 0 }, { "cite": "187 Ark. 636", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1432076 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/187/0636-01" ] }, { "cite": "227 Ark. 488", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1705295 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/227/0488-01" ] }, { "cite": "229 Ark. 755", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1702715 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/ark/229/0755-01" ] }, { "cite": "218 Ark. 390", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1612057 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/218/0390-01" ] }, { "cite": "244 Ark. 432", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720386 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/244/0432-01" ] }, { "cite": "251 Ark. 247", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1633286 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/251/0247-01" ] } ], "analysis": { "cardinality": 574, "char_count": 10959, "ocr_confidence": 0.82, "pagerank": { "raw": 2.066796937874105e-07, "percentile": 0.7572462718868938 }, "sha256": "e559be2f564e22d28c3b999eb90149d8dcc0e293a2ef36f5dda28e908b379460", "simhash": "1:7b7a9c60256fd49a", "word_count": 1825 }, "last_updated": "2023-07-14T15:11:02.058798+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "B-W ACCEPTANCE Corp. v. Hon. G. B. COLVIN, Jr., Judge" ], "opinions": [ { "text": "John A. Fogleman, Justice.\nPetitioner, a cross-defendant in an action brought April 8, 1968, in the Circuit Court of Bradley County against Norman Polk by Douglass Distributing Company, seeks to prohibit the circuit court from proceeding against it. Douglass is admittedly a domestic corporation doing business in Bradley County. It filed a complaint seeking judgment against Polk on notes executed by Polk for the purchase price of goods sold him by Douglass. It alleges that its principal place of business is in Pulaski County. The notes were payable to petitioner, B-W Acceptance Corporation. It was alleged in the complaint that Polk had defaulted in payments on the note and that B-W had required Douglas to pay the balance due. Polk filed a pleading in which he denied the allegations of the complaint, cross-complained against Douglass and B-W, alleging that they conspired to maliciously prosecute a replevin action, and separately alleged in his \u201cthird party complaint\u201d that B-W had maliciously and without probable cause instituted a replevin action against him. He alleged in the cross-complaint that the cross-defendant\u2019s actions had damaged his credit, customer relations and reputation and sought to recover $26,300 actual, and $50,000 punitive, damages. He asserted in his \u201cthird party complaint\u201d that petitioner had instituted the action for the purpose of harassment and to put him out of business and injure his credit rating, fame and reputation. He sought to recover the identical amount of damages sought on his cross-complaint.\nPetitioner has filed its answer to Polk\u2019s cross-complaint and \u201cthird party complaint\u201d in the form of a general denial and counterclaim. In it, petitioner both raised and reserved its contention that the venue of the claims asserted against it is in Pulaski County and that the Circuit Court of Bradley County has no jurisdiction over it._______\nSummons for petitioner was issued to the Sheriff of Pulaski County and served upon the designated agent for service of B-W Acceptance Corporation in that county. It is alleged by Polk that B-W Acceptance Corporation is a foreign corporation doing business in Bradley County. This allegation is not controverted in the pleadings in the trial court and petitioner makes no contrary assertion here. Petitioner then is a nonresident of the state and has no county residence. Missouri Pacific R.R. Co. v. Fox & Sons, Inc., 251 Ark. 247, 472 S.W. 2d 726. There is no allegation that B-W has a place of business in Bradley County.\nVenue in an action for abuse of process, malicious prosecution and vexatious suit is controlled by general venue statutes or principles rather than Ark. Stat. Ann. \u00a7 27-610 (Repl. 1962). Arkansas Valley Industries, Inc. v. Roberts, Judge, 244 Ark. 432, 425 S.W. 2d 298; Robinson v. Missouri Pacific Transportation Company, 218 Ark. 390, 236 S.W. 2d 575. An original action by Polk against B-W and Douglass, or either, would be governed by these general statutes.\nIt was necessary that Polk assert whatever claim he had against Douglass in the pending action and the venue of that claim was fixed by the filing of the suit by Douglass. Ark. Stat. Ann. \u00a7 27-1121 (Repl. 1962); Northwest Motors v. Creekmore, Judge, 229 Ark. 755, 318 S.W. 2d 614. Another party may properly be charged with joint liability along with the plaintiff on the same cause of action by a defendant\u2019s counterclaim and cross-complaint. Ark. Stat. Ann. \u00a7 27-1134 (Repl. 1962); Thurman v. Farmers Cooperative, Inc., 227 Ark. 488, 299 S.W. 2d 650. But the new party charged with joint liability cannot be brought into the case by this method unless his liability is based upon matter affecting the subject matter of the action brought by plaintiff, at least where the defendant could at his election proceed separately against either of those jointly charged. Meyers Store Co. v. Colorado Milling and Elevator Co., 187 Ark. 636, 61 S.W. 2d 440; Naler v. Ballew, 81 Ark. 328, 99 S.W. 72. See also, Pindall v. Trevor and Colgate, 30 Ark. 249.\nWhile Ark. Stat. Ann. \u00a7 27-11B4 is not primarily a venue statute, certainly venue will be fixed by it if the cause of action asserted in the cross-complaint is one affecting the subject matter of plaintiff\u2019s cause of action. The very salutary purpose of the statute is to encourage litigation of all questions between the original parties in one forum and to bring into that forum other parties who would not otherwise be involved, if the issues between the defendants, or any of them, and the new parties actually affect the subject matter of the suit brought by the original plaintiff. If the statute did not affect venue insofar as such a claim against the new party or parties is concerned, its salutary purpose would be severely and unreasonably limited.\nThe subject matter of the complaint filed by Douglass was the alleged debt of Polk evidenced by notes on which Douglass sought a judgment against Polk. The subject matter of Polk\u2019s cross-complaint was an alleged malicious prosecution of a replevin action resulting from an alleged conspiracy between B-W and Douglass for which he sought damages for injury to his credit and reputation. The subject matter of tbe \u201cthird party complaint,\u201d which can only be considered as a cross-complaint against B-W asserting a separate liability against it for malicious prosecution of a replevin action, was the same.\nPetitioner alleged in its motion to dismiss in the trial court that Polk\u2019s claim did not arise out of the same transaction or occurrence relied upon by Douglass in the original complaint and alleges here that the cause of action asserted against it is \u201cseparable.\u201d Our review of the pleadings in the lower court exhibited with the petition sustains petitioner\u2019s assertion that Polk\u2019s cause of action was not one \u201caffecting the subject matter of the action.\u201d The cross-complaint alleges that the replevin suit was for recovery of Polk\u2019s floor plan merchandise. The \u201cthird party complaint\u201d is based upon the same replevin action. Even if it were material, we find nothing in the pleadings to show that the property B-W sought to replevy is the same property for which Polk allegedly executed the notes representing the debts he admitted owing, on discovery, except for his counterclaim. Furthermore, there is nothing in the record before us to support respondent\u2019s argument in its brief here that Polk is now being sued for the same amount on the same trust receipts as he was sued in the replevin action on which he bases his cross-complaints.\nRespondent contends that venue is in Bradley County by virtue of Ark. Stat. Ann. \u00a7\u00a7 27-1134 and 27-613 (Repl. 1962). Of course, venue cannot be fixed as to B-W under 27-613, under any circumstances, unless it were served in Bradley County or unless Douglass can be said to \u201creside\u201d in, or have been summoned in, that county. There is nothing in this record to contradict the allegation in the complaint filed by Douglass that it is a domestic corporation with its principal place of business in Little Rock. It is alleged by Polk that Douglass does business in Bradley County, but nothing is said about its having a place of business there. We are unable to say that Douglass has a \u201cresidence\u201d for the purpose of applying Ark. Stat. Ann. \u00a7 27-613 other than Pulaski County. It was not summoned in Bradley County. But Ark. Stat. Ann. \u00a7 27-613 does not purport to fix venue for the purpose of a cross-complaint, which is governed only by Ark. Stat. Ann. \u00a7 27-1134. We find nothing in the record to support any venue under these statutes for an independent action by Polk. See International Harvester Company v. Brown, 241 Ark. 452, 408 S.W. 2d 504; Terry v. Plunkett-Jarrell Grocer Co., 220 Ark. 3, 246 S.W. 2d 415, 29 A.L.R. 2d 1264; Duncan Lumber Co v. Blalock, 171 Ark. 397, 284 S.W. 15, overruled on another point, see Anheuser-Busch, Inc v. Manion 193 Ark. 405, 100 S.W. 2d 672.\nWe cannot agree with respondent that petitioner\u2019s removal of the case to the United States District Court or its subsequent remand had the effect of waiving the question now raised as to venue. Upon remand, the case stood in the state court in the same position it would have had it never been removed, and it was the duty of the state court to proceed as if it had never been removed. Trinity Universal Insurance Co. v. Robinson, 227 Ark. 482, 299 S.W. 2d 833; Meyers Store Co. v. Colorado Milling and Elevator Co., 187 Ark. 636, 61 S.W. 2d 440. Furthermore, petitioner\u2019s motion to dismiss, relied upon by respondent as a submission to its jurisdiction, was first filed in the United States District Court, and its assertion that there was a misjoinder of parties was based substantially upon petitioner\u2019s allegation that the claim asserted against it did not arise out of the same transaction or occurrence as the claim asserted by Douglass, the plaintiff, against Polk, the defendant. The same arguments as to venue and jurisdiction advanced here by petitioner were urged by it when this motion was submitted to the circuit court, as disclosed by memorandum brief filed there and exhibited with the petition here.\nSince we find no basis on which the Bradley Circuit Court can properly exercise jurisdiction over Polk\u2019s cross-complaints, against petitioner, the writ is granted.\nThis situation is not within the purview of the third party practice authorized in an action instituted for tort recovery under Ark. Stat. Ann. \u00a7 34-1007 (Repl. 1962).\nPolk\u2019s general denial of the allegations of the Douglass complaint cannot well be taken to contradict allegations pertaining to the plaintiff\u2019s corporate status. See Ark. Stat. Ann. \u00a7 27-1121; Meek v. United States Rubber Tire Company, 244 Ark. 359, 425 S.W. 2d 323.\nInasmuch as some of our past decisions would sustain the proposition that venue in a transitory action against a foreign corporation authorized to do business in Arkansas could be laid in any county in the state, we point out that the effect of these decisions was nullified by the United States Supreme Court in Power Manufacturing Company v. Saunders, 274 U.S. 490, 47 S. Ct. 678, 71 L. Ed. 1165 (1927), as recognized in Crutchfield v. McLain, 230 Ark. 147, 321 S. W. 2d 217. The Supreme Court of the United States held that our law, which permitted venue to be placed in any county, unconstitutionally discriminated against foreign corporations and in favor of domestic corporations and individuals. Consequently, venue cannot constitutionally be laid against such a foreign corporation in any county where the venue would not be proper in a suit against a domestic corporation or a resident individual.", "type": "majority", "author": "John A. Fogleman, Justice." } ], "attorneys": [ "Barber, Henry, Thurman, McCaskill \u00bfr Amsler, for petitioner.", "Huey \u00e9r Vittitow, for respondent." ], "corrections": "", "head_matter": "B-W ACCEPTANCE Corp. v. Hon. G. B. COLVIN, Jr., Judge\n5-5810\n478 S.W. 2d 755\nOpinion delivered April 10, 1972\nBarber, Henry, Thurman, McCaskill \u00bfr Amsler, for petitioner.\nHuey \u00e9r Vittitow, for respondent.\nIt appears from a stipulation and certain interrogatories that this action was brought in February or March 1965." }, "file_name": "0306-01", "first_page_order": 330, "last_page_order": 336 }