Amendments to the Rules of Civil Procedure, In re

• Decision Date: 16 May 1983
• Parties: In re AMENDMENTS TO THE RULES OF CIVIL PROCEDURE. *
• Court: Arkansas Supreme Court

Page 63

651 S.W.2d 63

279 Ark. 470

In re AMENDMENTS TO THE RULES OF CIVIL PROCEDURE.

^*

Supreme Court of Arkansas.

May 16, 1983.

[279 Ark. 471] PER CURIAM.

The permanent committee we established has, after several meetings, reported and recommended certain changes in the Rules of Civil Procedure. Some changes are the result of requests from lawyers and trial judges; some as a result of referral of questions to the committee by us. Some of the changes are merely good housekeeping, such as the change to Rule 3. Others are more significant. For example, Rule 4 permits service by mail; Rule 4(1) has been deleted in its entirety, removing the requirement of an attorney ad litem in cases where a default judgment is sought on the basis of service by mail. Rule 36, as amended, permits Answers to Requests for Admissions to be signed by attorneys of record, but it shall be considered as on the attorney's oath and will be taken as specific authority to bind the client. Rule 50 will no longer allow the sufficiency of the evidence to be challenged by a motion for a new trial, only by a motion for a directed verdict and motion for judgment notwithstanding the verdict.

The rules, as amended, are set out as an addendum to this opinion and the rules are printed in their entirety, as they read amended. These are not all the changes and the amended Reporter's Notes should be studied to learn all the changes made.

The amended Reporter's Notes reflect they are to be in addition to existing Reporter's Notes, so the changes can be readily understood.

In addition to the rules changed in the addendum, the following statutes are deemed superseded:

(1) Ark.Stat.Ann. § 27-1741.3 (Repl.1979). (Replaced by the amendment permitting general verdict accompanied by answers to interrogatories.)

(2) Ark.Stat.Ann. § 66-2219 (Repl.1980). (Superseded by Rule 12(a) which makes no allowance for requiring out of state insurers to answer in less time than other out of state defendants.)

In our Per Curiam, dated December 18, 1978, we deemed Ark.Stat.Ann. § 26-1307 (Repl.1962) superseded. That was in error regarding appeals from criminal judgments and should be deemed valid for that purpose only. That statute reads:

Clerk or justice of peace to file transcript of judgment within thirty days.--If a party appeals from a justice of the peace judgment or a common pleas judgment or a municipal court judgment the clerk of the court or the justice of the peace of the court from which the appeal is taken must file the transcript of the judgment in the office of the circuit court clerk within thirty (30) days after the rendition of the judgment.

It is our wish and goal that these amendments will be an annual matter, excepting We continue to thank our committee for its efforts, whose members continue to serve without compensation at their own expense. Also, we note that attorneys, judges, or any interested person should feel free to communicate directly with this committee about the Rules of Civil Procedure. The committee chairman is Judge Henry Wilkinson, P.O. Box 429, Forrest City, Arkansas 72335; the Secretary is Professor David Newbern, Waterman Hall, Fayetteville, Arkansas 72701.

critical changes we must obviously make on our own from time to time.

ADDENDUM

RULE 3

COMMENCEMENT OF ACTION

A civil action is commenced by filing a complaint with the clerk of the proper court who shall note thereon the date and precise time of filing.

Rule 3, Addition to Reporter's Notes to Rule 3:

1983 Amendment

The words of the first sentence of the rule were changed from "precise date and time of filing" to "date and precise time of filing."

A second sentence of the rule had provided that an action would not be deemed commenced unless service were obtained within 60 days of filing, with provisions for extension of the time limit. That sentence was deleted, and the matter of the time within which service must be obtained is addressed in Rule 4(i).

RULE 4

SUMMONS

(a) Issuance: Upon the filing of the complaint, the clerk shall forthwith issue a summons and cause it to be delivered for service to a sheriff or to a person specifically appointed or authorized by law to serve it. Upon request of the plaintiff, separate or additional summons shall issue against any defendant.

(b) Form: The summons shall be styled in the name of the court and shall be dated and signed by the clerk; be under the seal of the court; contain the names of the parties; be directed to the defendant; state the name and address of the plaintiff's attorney, if any, otherwise the address of the plaintiff; and the time within which these rules require the defendant to appear, file a pleading, and defend and shall notify him that in case of his failure to do so, judgment by default may be entered against him for the relief demanded in the complaint.

(c) By Whom Served: Service of summons shall be made by a sheriff of the county where the service is to be made, by his deputy, or by some person specially appointed by the court for that purpose, or by any other person authorized by law to serve summons, or by mail as allowed in paragraph (d)(8) of this rule.

(d) Personal Service Inside the State: A copy of the summons and of the complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows

(1) Upon an individual, other than an infant or an incompetent person, by delivering a copy of the summons and complaint to him personally, or if he refuses to receive it, by offering a copy thereof to him, or by leaving a copy thereof at his dwelling house or usual place of abode with some person residing therein who is at least 14 years of age, or by delivering a copy thereof to an agent authorized by appointment or by law to receive service of summons.

(2) When the defendant is under the age of 14 years, service must be upon a parent or guardian having the care and control of the infant, or upon any other person having the care and control of the infant and with whom the infant lives. When the infant is at least 14 years of age, service shall be upon him.

(3) Where the defendant is a person judicially found to be of unsound mind, the service must be upon his duly appointed guardian. If there is no guardian, then upon the spouse or other person having the care of the incompetent, or with whom the incompetent lives. If the incompetent is confined in a public or private institution for the treatment of the mentally ill, service shall be upon the superintendent or administrator of such institution and upon the duly appointed guardian, if any.

(4) Where the defendant is confined in a state or federal penitentiary or correctional facility, service must be upon the keeper or superintendent of the institution who shall deliver a copy of the summons and complaint to the defendant. A copy of the summons and complaint shall also be delivered to the spouse of the defendant, if any, unless the court otherwise directs.

(5) Upon a domestic or foreign corporation or upon a partnership or upon any unincorporated association subject to suit under a common name, by delivering a copy of the summons and complaint to an officer, partner other than a limited partner, managing or general agent, or any agent authorized by appointment or by law to receive service of summons.

(6) Upon the United States or any officer or agency thereof, by service upon any person and in such manner as is authorized by the Federal Rules of Civil Procedure or by other federal law.

(7) Upon a state or municipal corporation or other governmental organization or agency thereof, subject to suit, by delivering a copy of the summons and complaint to the chief executive officer thereof, or other person designated by appointment or by statute to receive such service, or upon the Attorney General of the state if such service is accompanied by an affidavit of a party or his attorney that such officer or designated person is unknown or cannot be located.

(8) Service of a summons and complaint upon a defendant of any class referred to in paragraph (1) or (5) of this subdivision of this rule may be made by the plaintiff or an attorney of record for the plaintiff by any form of mail addressed to the person to be served with a return receipt requested and delivery restricted to the addressee or the agent of the addressee. Service pursuant to this paragraph shall not be the basis for the entry of a default or judgment by default unless the record contains a return receipt signed by the addressee or a returned envelope, postal document or affidavit by a postal employee reciting or showing refusal of the process by the addressee. If delivery of mailed process is refused, the plaintiff or attorney making such service, promptly upon receipt of notice of such refusal, shall mail to the defendant by first class mail a copy of the summons and complaint and a notice that despite such refusal the case will proceed and that judgment by default may be rendered against him unless he appears to defend the suit. Any such default or judgment by default may be set aside pursuant to Rule 55(c) or Rule 60(b) if the addressee demonstrates to the court that the return receipt was signed or delivery was refused by someone other than the addressee.

(e) Other Service: Whenever the law of this state authorizes service outside this state, the service, when reasonably calculated to give actual notice, may be made:

(1) By personal delivery in the same manner prescribed for service within this state;

(2) In any manner prescribed by the law of the place in which service is made in that place in an action in any of its courts of general jurisdiction (3) By any form of mail addressed to the person to be served and requiring a receipt signed by the addressee or the agent of the addressee;

(4) As directed by the foreign authority in response to a letter rogatory;

(5) As directed by the court.

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