Edmonson v. Farris, 77-363

• Decision Date: 22 May 1978
• Docket Number: No. 77-363,77-363
• Parties: Dwane EDMONSON, Appellant, v. G. L. FARRIS, Appellee.
• Court: Arkansas Supreme Court

Page 617

565 S.W.2d 617

263 Ark. 505

Dwane EDMONSON, Appellant, v. G. L. FARRIS, Appellee.

No. 77-363.

Supreme Court of Arkansas,In Banc.

May 22, 1978.

Thomas D. Ledbetter, Harrison, for appellant.

Joe D. Villines, Jr., Flippin, for appellee.

HOLT, Justice.

Appellee sought to recover $1,303.60 as unaccounted funds from appellant, his former employee. Summons was issued against appellant pursuant to Ark.Stat.Ann. § 27-330 (Repl.1962). The return recited personal service upon appellant. On the trial date appellant did not appear, and the court entered a default judgment for the amount sought in the complaint. An execution on the judgment was returned non est. Subsequently, appellant moved the court to set aside the default judgment on the ground, inter alia, of defective service of process. The trial court denied the motion after an evidentiary hearing. However, the court held that appellant would be allowed to file a counterclaim and cross-complaint as a setoff to appellee's default judgment. We first consider appellant's contention that the court erred in failing to vacate the default judgment because it was based upon an invalid service of process.

Ark.Stat.Ann. § 29-107 (Repl.1962), in pertinent part, provides that "(a)ll judgments" rendered by any court against any person "without notice, actual or constructive, and all proceedings" thereon "shall be absolutely null and void." See, also, Halliman v. Stiles, 250 Ark. 249, 464 S.W.2d 573 (1972). In regard to notice, § 27-330 provides:

The service shall be:

First. By delivering to the defendant a copy of the summons; or

Second. If he refuses to receive it, by offering a copy thereof to him; or

Third. By leaving a copy of such summons at the usual place of abode of the defendant, with some person who is a member of his family over the age of fifteen years.

A failure to comply with § 27-330 renders any attempted service void. Booker v. Greenville Gravel Co., 249 Ark. 330, 459 S.W.2d 408 (1970). Here the court denied the motion to set aside the default judgment on the basis that appellant failed to meet his burden of proving the summons was not validly served upon him.

Appellant's father testified that the sheriff called him on the phone and told him he had a subpoena for his son. He told the sheriff that his son, a long distance truck driver, was not home and he did not know where his son was but he would be back in town the next week. Appellant's wife testified that she picked up the papers at the sheriff's office. At that time, appellant was away from home looking for a job and out of the county. The deputy sheriff, who was on duty the day the papers were served, testified that he did not remember serving the papers on appellant's wife. However, since his signature was on the return, "I am bound to have given her the papers." He admitted that, although the return recites appellant was personally served by him, that was not correct. He "possibly served them (on appellant's wife) at the jail." He stated he had not served any papers in the town where appellant resided. The sheriff testified that it was the custom of his office not to give such papers to family members at the office because "this is not good service."

The court observed that the service upon a member of appellant's household, his wife, at the jail rather than at the place of abode was a technical distinction and, therefore, the service was valid. We have held that statutory service requirements, being in derogation of common law rights, must be strictly construed and exactly complied with. Jenkins v. Hill, 240 Ark. 197, 398 S.W.2d 679 (1966). Here we are of the view that the undisputed proof clearly shows that the deputy failed to sufficiently comply with the mandatory provisions of § 27-330 in attempting service of process. Booker v. Greenville Gravel Co., supra. In the case at bar, the attempted service being invalid, the judgment was void ab initio. Halliman v. Stiles, supra. That being true, a showing of a meritorious defense or other just cause by a compliance with Ark.Stat.Ann. §§ 29-506, 508 and 509 (Repl.1962), as asserted by appellant, was unnecessary.

Appellant also contends that the trial judge erred in not disqualifying himself in the proceeding since his son is the lawyer representing the appellee. In support of his argument, appellant cites our recently approved Code of Judicial Conduct and argues that Canons 2 and 3 would require the judge to disqualify himself on his own motion or sua sponte. ¹ Appellee responds that, in the absence of any objection, as here, the asserted error was waived inasmuch as it is raised for the first time on appeal. Pettigrew et al. v. Washington County, 43 Ark. 33 (1884); Washington Fire Ins. Co. v. Hogan, 139 Ark. 130, 213 S.W. 7 (1919); Nowlin v. Kreis, 213 Ark. 1027, 214 S.W.2d 221 (1948), and Carr v. City of El Dorado, 217 Ark. 423, 230 S.W.2d 485 (1950). Here, we are confident the trial judge would have quickly disqualified himself had he been so requested by appellant. We reverse only on the invalid service of process. However, because the problem is a recurring one that judges, including the members of this Court, are subject to, we give the following caveat.

Canon 3C of the Code of Judicial Conduct provides:

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but...