Halliman v. Stiles

• Decision Date: 22 March 1971
• Docket Number: No. 5--5478,5--5478
• Citation: 250 Ark. 249,464 S.W.2d 573
• Parties: Fred T. HALLIMAN, Appellant, v. Clayburn G. STILES, Jr., et ux., Appellees.
• Court: Arkansas Supreme Court

Page 573

464 S.W.2d 573

250 Ark. 249

Fred T. HALLIMAN, Appellant, v. Clayburn G. STILES, Jr., et ux., Appellees.

No. 5--5478.

Supreme Court of Arkansas.

March 22, 1971.

McMillan, McMillan & Turner, Arkadelphia, for appellant.

Seymour S. Rosenberg, Memphis, Tenn., and Lookadoo, Gooch & Lookadoo, Arkadelphia, for appellees.

HOLT, Justice.

This is an action instituted by appellees for personal injuries allegedly received in an automobile accident. A default judgment was entered against appellant; and, from a denial of his motion to vacate that judgment, he brings this appeal.

Appellees stopped on an ice-covered bridge where an accident had previously occurred causing several other automobiles to block both lanes of passage. Appellant, driving behind, collided into the rear of appellees' car. The police who investigated the accident filed a report indicating that appellant was the holder of a Tennessee driver's license which gave his address as 405 Fonvill Avenue, Martin, Tennessee. About fifteen months later, appellees filed suit alleging that appellant was a resident of Tennessee and attempted to obtain service under the nonresident motorist statutes.

Summons was issued on the Secretary of State, and appellees' attorney mailed a registered letter containing a copy of the summons and complaint to appellant at the above Tennessee address. The letter was returned to the writer marked: 'Forwarding Order Expired, Out Of U.S.A.' A letter containing the summons, which was mailed to appellant by the Secretary of State, was also returned similarly marked. Appellees' attorney then filed an affidavit stating compliance with the out-of-state service statute. A verified petition was filed by appellees seeking to take depositions of their doctors by interrogatories and alleging that 'service cannot be had on the defendant, inasmuch as he is out of the continental United States.' Appellant was thereafter determined to be in default; and, upon testimony of damages, the trial court rendered judgment totaling $58,383.89.

Several months later appellant learned of the judgment against him and filed a motion to set it aside in which he alleged that: The Tennessee address was not, and never had been, his last known address; at the time of the accident he was residing at 3322 North Kenmore, Chicago, Illinois and had noted this same address in his Motor Vehicle Accident Report which was made the day following the accident; at the time suit was filed he was a missionary in New Guinea where he was at present; the judgment was void because he did not receive either of the letters mailed to the Tennessee address and did not, therefore, have notice of the suit or opportunity to appear and defend; and the judgment was also voidable because of fraud and unavoidable casualty. By verified amendment, he alleged a meritorious defense.

In support of his motion, appellant testified by deposition that: He had been a missionary in New Guinea for ten years; prior to this time he had lived in Chicago where he was pastor of a church; when he returned to the United States a friend in Tennessee had given him a car at which time he also obtained a driver's license from that state. He further stated that at the time of the accident he was on a year's sabbatical leave residing with his family at his Illinois address and had gone to Tennessee to visit his stepmother and some friends. His testimony also asserted that he gave his Illinois address to the police officer who had investigated the accident, to the local hospital which treated his children who were riding with him at the time of the accident, and to his insurance adjuster.

The trial court denied appellant's motion, and its order reads in part:

The Court is of the opinion that in addition to showing the invalidity of the service, it is necessary for the defendant (appellant) to allege and prove a meritorious defense to this action.

The defendant has sufficiently alleged, by verified complaint, a meritorious defense but the Court does not feel that the proof in this case is adequate to sustain this defense and therefore it is unnecessary for this Court to determine whether the service is valid upon the defendant or not and the defendant's Motion to Vacate Judgment should be denied.

For reversal appellant relies upon three contentions: (1) The service was insufficient; (2) the judgment was void under Ark.Stat.Ann. § 29--107 (Repl. 1962), a meritorious defense therefore not being required; and (3) the judgment was voidable under § 29--506 and should have been voided in that there was an allegation and prima facie showing of a meritorious defense. We agree with appellant that the proceedings were void ab initio and that a showing of a meritorious defense was therefore unnecessary.

Appellees insist, however, that our holding in Haville v. Pearrow, 233 Ark. 586, 346 S.W.2d 204 (1961), is dispositive of the issues now before us. There the appellants sought to set aside a judgment solely on the basis of § 29--506 which provides for the vacating of a judgment after the expiration of the term in which it was rendered. We said:

Under the view we take, it is not necessary that we discuss whether the service was valid, for under our holdings, irrespective of the validity of service, the judgment must be affirmed. We have many times held that before one can successfully set aside a judgment, he must show a meritorious defense. This is in accord with our statutes. Section 29--508 provides that proceedings to vacate judgments or orders under § 29--506 shall be by complaint, verified by affidavit, and shall set forth the judgment or order, grounds to vacate or modify same, and the defense to the action, if the party applying was a defendant. Section 29--509 provides that a judgment shall not be vacated on motion or complaint until it is adjudged that there is a valid defense to the action on which the judgment is rendered.

In the case at bar, however, appellant does not rely on § 29--506 only. He also affirmatively attacks the very validity of the judgment itself, alleging that it is void under § 29--107 for lack of notice. If service on appellant was, as he contends, improper, then the trial court was without personal jurisdiction over him and the proceedings were void. Any adjudication resulting therefrom would, of course, be without binding force or legal consequence. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878); Moore v. Watkins and Others, 1 Ark. 268 (1838). The trial court therefore erred in holding that the absence of a meritorious defense renders a determination of the validity of the service unnecessary; rather it is the validity of the service and the jurisdiction which it thereby confers that afford legal vitality to the consideration of whether or not appellant presented a meritorious defense. See Woolfolk v. Davis, 225 Ark. 722, 285 S.W.2d 321 (1955). Although we think that a prima facie showing of a meritorious defense was made in the case at bar, this showing was not necessary since, as shall be demonstrated, service over the appellant was not effectively acquired. The proceedings were conducted without proper notice to appellant; and the judgment, consequently, was void. Beck v. Rhoads, 235 Ark. 619, 361 S.W.2d 545 (1962).

Our nonresident motorists statutes, based on the state's police power, are designed to furnish a convenient forum in which one who has been injured within this State through the negligence of an one-of-state motorist can enforce his civil remedies. They provide that operation of a motor vehicle by a nonresident on Arkansas highways is deemed equivalent to the appointment of the Secretary of State by such nonresident as being his agent upon whom may be served all lawful process in any action arising out of any accident in which he may be involved within the boundaries of this State. Section 27--342.1. Service of process on the Secretary of State is sufficient to acquire personal jurisdiction over the nonresident, 'provided that notice of such service and a copy of the process are forthwith sent by registered mail by the plaintiff or...