concurring. I concur in the result reached by the majority in this case but I use a different basis and a different interpretation to reach that result.
Since Rule 4 (i) of the Arkansas Rules of Civil Procedure is entirely the work product of the Arkansas Supreme Court,1 its interpretation may best be left to that court. Until that court speaks, however, different interpretations of the rule will probably be made.
The first three sections of Rule 4 (i) follow almost the exact words of former Ark. Stat. Ann. § 29-404 (Repl. 1962). The title line of section 29-404 was “Default in case of constructive service — prerequisite to judgment.” The first sentence in the section says “Before judgment is rendered against a defendant constructively summoned ...” whereas the first sentence in Rule 4 (i) says “Before judgment is rendered against a defendant who is served by mail only or by warning order ...” The fourth paragraph of Rule 4 (i) is former Ark. Stat. Ann. § 29-405 (Repl. 1962) verbatim.
It is clear, therefore, that the words “who is served by mail only or by warning order” in Rule 4 (i) replaced the words “constructively summoned” which appeared in former section 29-404. It seems reasonable that Rule 4 (i) was meant to perform the function of former section 29-404. Since that section deals with constructive service, it would not seem to apply to situations where provision is made to obtain personal service. For example, Rule 4 (e) sets out methods of service identical to the methods provided by the Uniform Interstate and International Procedure Act, Ark. Stat. Ann. § 27-2503 (1) (Repl. 1979), whereby personal service may be obtained upon out of state defendants. In this case service was had under the provisions of that act and in the manner therein prescribed and in the manner set out in Rule 4 (e). A return receipt signed by the agent for service of the appellant Watling Ladder Company was filed in this case. The appellant admits receiving the summons and I see no reason for holding that it was excused from answering until thirty days after an attorney ad litem was appointed to tell it that it had been sued which was a fact it already knew. The Arkansas Supreme Court has said, “One who is aggrieved by a j udgment rendered in his absence must show, not only that he was not summoned, but also that he did not know of the proceeding in time to make a defense.’’ Mack v. Scott, 230 Ark. 510, 323 S.W. 2d 929 (1959).
I do not agree that Watling’s answer was timely filed.
I do agree, however, that the default entered against Watling should be set aside. I reach this result by following the previous decisions of the Arkansas Supreme Court relied upon and followed by this court in Firestone Tire and Rubber Co. v. Little, 269 Ark. 636, 599 S.W. 2d 756 (Ark. App. 1980), where it was held that the answer of one defendant inured to the benefit of another where the answer stated a defense common to both.
The only difference in this case and Firestone is that the other defendant here did not file an answer within the time provided by law and in Firestone, and in the cases cited there, a timely answer had been filed.
The appellees here say that although they agreed that the other defendant could have more time to answer only the court can legally extend that time. They admit, however, that their agreement might give the other defendant just cause under Rule 55 of the Rules of Civil Procedure for filing a late answer. But be that as it may, the appellees’ argument overlooks the reason for the rule that the answer of one defendant inures to the benefit of another where the answer states a defense common to both.
In 1 Freeman, Freeman on Judgments, § 104 (5th ed. 1925), it is said:
At common law, in a j oint action, whether upon a joint or a joint and several contract, or upon several distinct contracts, the general rule was, that there could be no judgment except for or against all of the defendants. ... So unyielding was the rule, that when one of the defendants suffered a default or confessed the action, no judgment could be given against him, if his codefendant succeeded in maintaining some defense affecting the entire contract.
In Fletcher v. Bank of Lonoke, 71 Ark. 1, 69 S.W. 580 (1902), a case cited in Firestone, the court said:
In the denial of the insolvency of the Bank of Lonoke the basis of the appellants’ cause of action against the defendant stockholders was put in issue, and the failure of appellants to sustain the affirmative defeated their right to a decree against any of the stockholders. The defense inured to the benefit of those who failed to answer.
And in State v. Williams, 17 Ark. 371 (1856), it was held that a demurrer by one defendant inured to the benefit of another defendant.
It seems clear to me that the above cases require us to hold that any answer in this case by either defendant which asserts a defense common to both will inure to the benefit of the other defendant. Since the answer of P.C. Hardware denied the material allegations of the plaintiff’s complaint, I would have to hold that the default entered against Watling should be set aside.
I am authorized to state that Judge Cracraft joins in this opinion.
See Cox & Newbein, New Civil Procedure: The Court that Came in from the Code, 33 Ark. L. Rev. 1,17 (1979).