Bruce Long v. Jack Bonds

NOT DESIGNATED FOR PUBLICATION

BRUCE LONG

APPELLANT

V.

JACK BONDS

APPELLEE

CA01-123

October 24, 2001

APPEAL FROM THE VAN BUREN COUNTY CIRCUIT COURT

[NO. CIV 95-30]

HON. CHARLES E. CLAWSON, JR.,

CIRCUIT JUDGE

REVERSED AND DISMISSED

This case arose out of a motion to set aside a default judgment on the ground that the summons was not timely served on appellant. The trial court, finding that service was timely because the summons was served within 120 days of the date it was issued, and declaring that the judgment was not void even if service was untimely, refused to set aside the default judgment. This appeal followed.

For reversal, appellant contends that the trial court erred in finding that the service was timely and in refusing to set aside the default judgment. We agree.

The trial court erred in finding that service was timely. Pursuant to Ark. R. Civ. P. 4(i), time is not measured from when the summons is issued, but instead from when the complaint is filed. Here, the complaint was filed on April 7, 1995, and service was not had until February 16, 1996. Plainly, the summons was served long after the 120-day period expired.

The trial court also erred in failing to set aside the default judgment. A default judgment rendered without valid service is a judgment rendered without jurisdiction, and is therefore void; consequently, if service is not made within 120 days after the filing of the complaint and no motion to extend the time for service is made, dismissal is mandatory. Southeast Foods, Inc. v. Keener, 335 Ark. 209, 979 S.W.2d 885 (1998). Furthermore, proof of a meritorious defense is unnecessary where the judgment is void. Id.

In the present case, service was not made within 120 days after the filing of the complaint; no motion to extend the time for service was made; appellant did not waive the defective service of process, see Burrell v. Arkansas Department of Human Services, 41 Ark. App. 140, 850 S.W.2d 8 (1993); and dismissal was therefore mandatory.

Reversed and dismissed.

Roaf and Hart, JJ., agree.