STATEMENT BY THE COURT.
Petitioner seeks a writ of prohibition to Judge T. T. Toler, the circuit judge of the Seventh Judicial Circuit, compelling him to refrain from further proceedings in the hearing of the case of Gus Butler on a policy of life insurance providing for the payment of benefits to insured in the event of his becoming permanently and totally disabled while the policy was in force. *Page 1074
It was alleged that during the latter part of 1932 the policy lapsed for nonpayment of premiums, and, there being no cash surrender value, liability thereunder terminated; that on November 23, 1932, he applied for a reinstatement of the policy, making certain representations as to his health which were not true, and that the company, relying upon said warranties, reinstated the policy; and that thereafter, in April, 1933, he filed a claim for permanent and total disability benefits under the policy, alleging that he had been permanently and totally disabled since December 8, 1931, suffering from myocarditis and other heart trouble; that upon receipt of this information the petitioner canceled the reinstatement of the policy, and on May 6, 1933, tendered him the money which he had paid the company upon reinstatement of the policy, together with interest, and delivered to him at the time a notice that the company had rescinded the policy.
One of insured's attorneys asked one of the attorneys for petitioner whether he would enter the appearance of the petitioner in the Nevada Circuit Court as he desired the case to be tried before it could be reached here. This the attorney refused to do, and the suit was filed on June 21, 1933, in the Saline Circuit Court, which was then in vacation and would not meet in regular or adjourned session until September 4, 1933.
On August 31, 1933, attorneys for the insurance company filed a motion to quash the service in the Saline Circuit Court, alleging that plaintiff was a resident of Pulaski County, Arkansas; that it was a foreign life insurance company authorized to do business in the State of Arkansas; and that the attempted service of summons upon it was made out of Saline County upon the Commissioner of insurance of the State of Arkansas in Pulaski County, and that it maintained no office or agent in Saline County and had no property there.
On September 4, 1933, attorneys for the petitioner appeared before the respondent and requested a hearing on its motion to quash service. Respondent declined to hear petitioner's testimony, saying it could all be heard upon the trial of the case. Petitioner then sought *Page 1075 and obtained a temporary writ of prohibition and is now asking that it be made permanent.
It appears from the abstract of the record that Butler filed his complaint in the Saline Circuit Court on June 21, 1933, which states a cause of action, a copy thereof being attached to the petition. Exhibit B of the respondent herein is a certified copy of an affidavit of plaintiff, stating he is a resident of Saline County, Arkansas, filed in the Saline Circuit Court. Exhibit H to the response is a certified copy of docket entries and orders of the presiding judge herein showing the following docket entries:
"Docket Entries
"9/4/33 Amendment to complaint filed. Motion to dismiss overruled. Cause by consent set for trial September 8. "9/6/33 Application and bond for removal filed, denied and exceptions saved." (after stating the facts). The writ of prohibition is the appropriate remedy where the inferior court has no jurisdiction over the person of the petitioner and can acquire none. Caldwell v. Dodge, 179 Ark. 235,15 S.W.2d 391. It is a discretionary writ. Merchants' Planters' Bank v. Hammock, 178 Ark. 746, 12 S.W.2d 421; Galloway v. LeCroy, 169 Ark. 838,277 S.W. 35. It is never granted unless the inferior tribunal has clearly exceeded its authority, and the party applying for it has no other protection against the wrong that will be done by such usurpation. Macon v. LeCroy, 174 Ark. 228,295 S.W. 31; Dist. No. 20, United Iron Workers v. Bourland, 169 Ark. 796, 277 S.W. 546; Metzger v. Mann,183 Ark. 40, 34 S.W.2d 1069.
It is also true that no application for relief need be made to the lower court when such application would be futile, although, as a general rule, a writ of prohibition will not be issued to a lower court unless the attention of the court, whose proceedings it is sought to arrest, has been called to the alleged lack of jurisdiction, the *Page 1076 foundation of the rule being the respect and consideration due to the lower court and the expediency of preventing unnecessary litigation. Monette Road Improvement Dist. v. Dudley, 144 Ark. 169, 222 S.W. 59; Detroit Fidelity Ins. Co. v. Priddy, 185 Ark. 9, 45 S.W.2d 44.
Petitioner herein did file a motion, however, to dismiss the suit as beyond the jurisdiction of the court, alleging the plaintiff did not live in the county, etc. An affidavit was filed with the complaint stating that the plaintiff was a resident of Saline County; and, upon the motion being overruled, no objections appear to have been made or exceptions saved, the record entries showing: "Cause by consent set for trial September 8."
Petitioner insists that it had no other adequate remedy to protect its rights than by prohibition, since, had it filed an answer and proceeded to trial of the cause on its merits, it would have waived its right to apply for a writ of prohibition, and especially if it had appealed to this court upon an adverse judgment, it having been held frequently that an appeal in such cases is tantamount to an entry of appearance leaving the cause to stand for trial with the appearance of defendant entered at the next term after the decision of this court on appeal. Order Railway Conductors v. Bandy. 177 Ark. 694, 8 S.W.2d 448.
Petitioner had the right, of course, to appear for trial in Saline County, and, whether or not the complaint alleged facts that bring it within the provision of the statute, 6150, Crawford Moses' Digest; ("Venue is no part of a cause of action, and it is not usual, nor does it seem necessary, to aver the fact showing it." Inter-Ocean Casualty Co. v. Copeland, 184 Ark. 655, 43 S.W.2d 225), it could have waived its right to object by taking any substantial step in the defense of the cause, such as filing an answer, etc.; and certainly it could enter its appearance by coming into court and agreeing to the setting down of the cause for trial on a certain day as was done here.
The court did not err in overruling the motion to quash, and the writ of prohibition is denied. *Page 1077