Globe Life Ins. Co. v. Humphries

• Decision Date: 19 May 1975
• Docket Number: No. 75--33,75--33
• Citation: 522 S.W.2d 669,258 Ark. 118
• Parties: GLOBE LIFE INSURANCE CO., Appellant, v. Kenneth A. HUMPHRIES, Appellee.
• Court: Arkansas Supreme Court

Page 669

522 S.W.2d 669

258 Ark. 118

GLOBE LIFE INSURANCE CO., Appellant, v. Kenneth A. HUMPHRIES, Appellee.

No. 75--33.

Supreme Court of Arkansas.

May 19, 1975.

Davidson, Plastiras & Horne, Ltd. by Michael O. Parker, Little Rock, for appellant.

H. David Blair, Murphy & Blair, Batesville, for appellee.

BROWN, Justice.

This is an appeal by Globe Life Insurance Company from a default judgment entered against it on the ground that its answer to the complaint was not timely filed. The complaint was filed in the Independence Circuit Court on August 27, 1974, and summons was issued on that date. The summons was served by the Pulaski County Sheriff on the Insurance Commissioner of the State of Arkansas as statutory agent for service of process on appellant, a foreign corporation, on August 30, 1974. Pursuant to Ark.Stat.Ann. § 66--2219 (Repl.1966) the summons was mailed by the Commissioner to the appellant on September 3, 1974. Appellant filed its answer in the Independence Circuit Court on September 24, 1974. Subsequently, a motion to strike appellant's answer as not being timely filed, was entered by appellee and a response filed by appellant. A hearing was held on October 28, 1974, at which time the motion to strike appellant's answer was granted and a default judgment was entered against appellant in the amount of $2,184.00 plus costs and attorney's fees. This appeal is taken from the court's judgment of October 28, 1974, entered on December 2, 1974.

Appellant raises two points for reversal. Appellant first contends that the circuit court erred in ruling that appellant's answer had not been timely filed. The parties stipulated that the Commissioner's notice to appellant was mailed on September 3, 1974. It was further stipulated that the answer was filed on September 24, 1974, in the Independence Circuit Court. Ark.Stat.Ann. § 66--3235 (Repl.1966) governs service of process on insurers and provides in pertinent part as follows:

(1) In any suit brought in this State against an insurer process may be served upon the insurer as follows:

(b) As to foreign insurers service may be had upon the Commissioner, as provided in sections 60 and 61 (§§ 66--2218, 66--2219) of this code.

As indicated by subsection (b) of § 66--3535, service upon foreign insurers may be had upon the Commissioner as provided in Ark.Stat.Ann. § 66--2218 and § 66--2219. Section 66--2218 provides in pertinent part that the Insurance Commissioner is the agent for the service of process for foreign insurers and § 66--2219 provides as follows:

(1) Service of process upon the Commissioner as process agent of an insurer (under section 60 (§ 66--2218)) shall be made by serving copies in duplicate of the process upon the Commissioner or upon his assistant, deputy, or other person in charge of his office. Upon being served with such process the Commissioner shall promptly forward a copy thereof by certified or registered mail to the person last designated by the insurer to receive the same, as provided by section 60(2) (§ 66--2218(2)), and send a copy of his letter of transmittal of the process to the Clerk of the issuing court and the same shall be entered in the file of the cause.

(2) Where process is served upon the Commissioner as an insurer's process agent, the insurer must answer or plead within twenty (20) days after the date upon which the Commissioner mailed a copy of the process served upon him as required by subsection (1), above. (our emphasis)

(3) Service shall not be deemed completed until the Commissioner has mailed a copy of the process, as provided in subsection (1), above.

This is the first time this court has been called on to construe Ark.Stat.Ann. § 66--2219(2) (Repl.1966). Accordingly, appellant contends that Ark.Stat.Ann. § 27--1135 (Repl.1962), which is our general civil procedure statute relating to time for appearance or pleading to complaint, and our cases construing this statute, should serve as a guide to our interpretation. Section 27--1135 in pertinent part provides: 'A defendant to any complaint or cross-complaint must appear or plead either generally or specially the first day after expiration of the periods of time set forth below, as the case may be: First. Where the summons has been served twenty (20) days in any county in the state; * * *'

Appellant relies on our cases which have construed the above mentioned language to mean that the defendant has twenty-one days in which to answer. That is, excluding the first day (according to Ark.Stat.Ann. § 27--130 (Repl.1962)) twenty days can lapse, and the defendant can answer on the first day after the expiration. Hence, the defendant has twenty-one days in which to answer. Widmer v. J. I. Case Credit Corp., 239 Ark. 12, 386 S.W.2d 702 (1965); DeSoto Hotel & Baths, Inc. v. Luth, 239 Ark. 424, 389 S.W.2d 897 (1965). In the case at bar, the Commissioner's notice to appellant was mailed on September 3, 1974, and appellant's answer was filed on September 24, 1974. Excluding the day of mailing, the answer was filed on the twenty-first day. Arguing that § 27--1135 has language similar to § 66--2219, appellant contends that our case law interpreting the former statute should control in the present action. The short answer to appe...