{ "id": 1756182, "name": "Billy G. EMERSON v. John D. BRIDGFORTH and Knox KINNEY, Co-Administrators of the Estate of Jack B. LANCASTER, deceased", "name_abbreviation": "Emerson v. Bridgforth", "decision_date": "1980-12-03", "docket_number": "CA 80-235", "first_page": "289", "last_page": "294", "citations": [ { "type": "official", "cite": "271 Ark. 289" }, { "type": "parallel", "cite": "608 S.W.2d 47" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "211 Ark. 388", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1473310 ], "weight": 2, "year": 1947, "opinion_index": 0, "case_paths": [ "/ark/211/0388-01" ] }, { "cite": "249 Ark. 330", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719553 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/ark/249/0330-01" ] }, { "cite": "263 Ark. 505", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1672593 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/263/0505-01" ] }, { "cite": "207 Kan. 459", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 510043 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/kan/207/0459-01" ] }, { "cite": "78 Nev. 330", "category": "reporters:state", "reporter": "Nev.", "case_ids": [ 4915576 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nev/78/0330-01" ] }, { "cite": "11 L. Ed. 2d 1036", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1964, "opinion_index": 0 }, { "cite": "26 ALR 2d 1086", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1952, "opinion_index": 0 }, { "cite": "16 F.R.D. 355", "category": "reporters:specialty", "reporter": "F.R.D.", "case_ids": [ 3775711 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/frd/16/0355-01" ] }, { "cite": "335 F. Supp. 95", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3580291 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/f-supp/335/0095-01" ] }, { "cite": "238 S.W. 1054", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1922, "opinion_index": 0 }, { "cite": "152 Ark. 232", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1364120 ], "year": 1922, "opinion_index": 0, "case_paths": [ "/ark/152/0232-01" ] } ], "analysis": { "cardinality": 490, "char_count": 8671, "ocr_confidence": 0.747, "pagerank": { "raw": 7.88372246573299e-08, "percentile": 0.46018435823864634 }, "sha256": "c07d6dd9369a4fe9ba6cc061111418a73d9c4bc5b1b8f7e7a8eabdc86160fc2b", "simhash": "1:9f16e902fbb3cf83", "word_count": 1509 }, "last_updated": "2023-07-14T21:22:30.070289+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Billy G. EMERSON v. John D. BRIDGFORTH and Knox KINNEY, Co-Administrators of the Estate of Jack B. LANCASTER, deceased" ], "opinions": [ { "text": "David Newbern, Judge.\nThe question presented is whether leaving a complaint and summons with the son of the appellant (who was also the appellant\u2019s employee) at the appellant\u2019s business address constituted valid service of process upon the appellant. We hold it did not.\nThe appellees filed a complaint alleging the appellant owed a sum of money, evidenced by a promissory note, to the estate they represent. The complaint and summons were handed to the appellant\u2019s son, Barry Emerson, at the appellant\u2019s place of business, not his abode. The factual statement in the appellant\u2019s brief is that the return filed by the sheriffs office recited that the appellant was personally served with the summons and complaint. Curiously, the summons and complaint are not abstracted, and they do not appear in the record. Instead, there is a \u201cclerk\u2019s statement as to summons,\u201d as follows: \u201cSummons issued October 26, 1979, and served on Mr. Billy G. Emerson on October 29, 1979.\u201d We will accept the appellant\u2019s statement of the facts with respect to what the return showed, as the appellees have filed no brief or supplemental abstract.\nAfter 20 days had passed from the time the complaint was purportedly served, the appellant filed an answer stating he had not been personally served in the matter and alleging defenses on the merits of the claim. The trial court held a hearing on the question whether default judgment should be granted or the service quashed. At the hearing the appellant presented evidence to the effect that the summons and complaint were handed to his son, and the appellant had in turn presented them to the attorney who customarily represented him. As it happened, the attorney is a law partner of one of the appellees and thus could not handle the matter. By the time the appellant obtained other counsel, the time to answer had passed.\nToward the close of the hearing, the court made the following remarks:\nThere is case law that any agent or a servant employee of the party is an authorized person to receive summons. He can be served if he is in the course of his employment and found within the jurisdiction of the Court.\nThe closing colloquy between the court and the appellant\u2019s counsel reveals the court\u2019s impression that because the appellant\u2019s son was an employee of the appellant the service was appropriate and authorized by law.\nA.R. Civ. P. 4(d)(1) controls this matter. It provides:\n(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:\n(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 fourteen (14) years of age, or by delivering a copy thereof to an agent authorized by appointment or by law to receive service of summons.\nThere is no question that the portion of the rule permitting service by \u201cleaving a copy ... at his dwelling house or usual place of abode with some person residing there,\u201d does not apply in this case. No evidence tended to show the service was made at the appellant\u2019s dwelling or handed to a person residing there. The only question is whether, as the trial court found, Barry Emerson was \u201can agent authorized by appointment or by law to receive service of summons.\u201d\n1. Authorization by law.\nWe simply can think of no \u201claw\u201d which would make either a son or an employee, or a person who is both, an agent authorized to accept service of process on behalf of his father-employer. There are, of course, situations to which this part of the rule applies, such as the statute conferring authority upon the Secretary of State to receive process for a nonresident motorist or corporation. Ark. Stat. Ann., \u00a7 27-339.1(3) (Repl. 1979).\nThe closes we can come to finding case \u201claw\u201d which might be considered to constitute a family member an agent \u25a0for this purpose is Crawley v. Neal, 152 Ark. 232, 238 S.W. 1054 (1922), in which our supreme court, by way of dictum, described the wife of a prospective defendant as his \u201cagent\u201d for receipt of process. There, however, our supreme court was faced with a situation in which the wife was served pursuant to the now superseded Arkansas statute permitting process to be left at the usual place of abode of the defendant with a person who is a member of his family over the age of 15 years. Clearly, such a person was specifically authorized to receive process under the superseded statute, Ark. Stat. Ann., \u00a7 27-330 (Repl. 1962), and is authorized pursuant to Rule 4(d)(1), because of the specific provision constituting such a person an agent for that purpose.\nAs we find no \u201claw\u201d validating the service in this case, we turn to the question whether the recipient was \u201can agent authorized by appointment.\u201d\n2. Agent by appointment.\n. In its relevant part, our rule is the same as F. R. C. P. 4(d)(1). The federal rule has uniformly been interpreted strictly to require that a person who is to be considered authorized by appointment to receive process have specific authorization. See, U.S. v. Marple Community Record, Inc., 335 F. Supp. 95 (E.D. Pa. 1971). Service on a person who is an agent for purposes other than receipt of process does not comply with the rule. Hardy v. O\u2019Daniel, 16 F.R.D. 355 (D.D.C. 1954). See generally, Annot., 26 ALR 2d 1086 (1952); Annot., 11 L. Ed. 2d 1036 (1964); and 4 Wright & Miller, Federal Practice and Procedure, \u00a7 1097, p. 370 (1969).\nIn states having rules precisely like or very similar to the Federal and Arkansas rules, the same or similar language has been interpreted to mean that a person who was an agent for a different purpose may not bind a defendant by receiving process for him. For example, an agent authorized to collect rent for a property owner is not considered to have been appointed to receive process for his principal, Foster v. Lewis, 78 Nev. 330, 372 P. 2d 679 (Nev. 1962), and an office secretary is not an agent authorized to receive service for her employer at his office, Haley v. Hershberger, 207 Kan. 459, 485 P. 2d 1321 (1971).\n3. Superseded Arkansas law.\nIt is difficult for us to know what the trial court had in mind when he referred to \u201ccase law that any agent or a servant employee of the party is an authorized person to receive summons.\u201d Our superseded statute, Ark. Stat. Ann., \u00a7 27-330, supra, would not have permitted it, although there was a provision in another statute for service upon the \u201ccashier, treasurer, secretary, clerk or agent\u201d of a corporation. See superseded Ark. Stat. Ann., \u00a7 27-346 (Repl. 1962).\nOur supreme court was as zealous in construing statutes of this type strictly as the federal courts have been in construing the rule. See Edmondson v. Farris, 263 Ark. 505, 565 S.W. 2d 617 (1978); Booker v. Greenville Gravel Co., 249 Ark. 330, 459 S.W. 2d 408 (1970). Thus, we feel no hesitancy in following the federal cases and the state cases cited above in holding Barry Emerson was not an agent appointed for the purpose of receiving summons.\nTo conclude this portion of our opinion, we should note that the only argument made by the appellees at the hearing was that the return which recited service upon the appellant \u201cspeaks for itself.\u201d The return is only prima facie evidence of what transpired, and the truth is subject to proof in a hearing such as the one held below. Hirsch v. Perkins, 211 Ark. 388, 200 S.W. 2d 796 (1947); Crawley v. Neal, supra.\nConclusion.\nAs we hold the service of process was invalid, sustaining a motion to quash would have been appropriate. However, the appellant has tendered an answer on the merits of the claim. On this appeal, the appellant does not ask that we regard the service of process as quashed, thus requiring the appellees to begin again. Rather, the appellant only asks that his answer be considered. This approach will, of course, save time, effort and expense for the court and the parties. Therefore, we remand to the trial court with instruction that the appellant\u2019s answer be allowed to stand and the case be allowed to proceed as if the answer had been timely filed. A.R. Civ. P. 1.\nReversed and remanded.", "type": "majority", "author": "David Newbern, Judge." } ], "attorneys": [ "Ray & Donovan, for appellant.", "No brief for appellees." ], "corrections": "", "head_matter": "Billy G. EMERSON v. John D. BRIDGFORTH and Knox KINNEY, Co-Administrators of the Estate of Jack B. LANCASTER, deceased\nCA 80-235\n608 S.W. 2d 47\nCourt of Appeals of Arkansas\nOpinion delivered December 3, 1980.\nRay & Donovan, for appellant.\nNo brief for appellees." }, "file_name": "0289-01", "first_page_order": 321, "last_page_order": 326 }