dissenting. I respectfully dissent. Rule 4(a) of the Arkansas Rules of Civil Procedure prescribes that upon the filing of a complaint, the clerk “shall forthwith issue a summons and cause it to be delivered for service to a sheriff or to a person appointed by the court or authorized by law to serve process.” Rule 4(b) provides that the summons “shall,” among other things, “require the defendant to appear, file a pleading, and defend and shall notify him that in case of his failure to do so, judgment by default may be entered against him for the relief demanded in the complaint.” Rule 4(d), pertaining to personal service inside Arkansas, states that a copy of the summons and complaint “shall be served together.” Rule 4(g) provides that the person effecting service “shall make proof thereof to the clerk within the time during which the person served must respond to the summons.” And Rule 4(i) states:
If service of the summons is not made upon a defendant within 120 days after the filing of the complaint, the action shall be dismissed as to that defendant without prejudice upon motion or upon the court’s initiative. If a motion to extend is made within 120 days of the filing of the suit, the time for service may be extended by the court upon a showing of good cause.
(Emphasis added.)
Appellee undisputedly failed to effect service within 120 days pursuant to Rule 4(i). No motion was made to extend the time for accomplishing service during the 120-day time period. Rather than endorse this end run of the rule of procedure aimed at protecting the due process rights of defendants to receive fair notice of pending litigation and their obligation to defend, I would reverse the trial court’s decision granting summary judgment to appellee and remand so that summary judgment can be entered in favor of appellant to set aside the decree of divorce that was improperly issued. It has long been recognized in Arkansas that service of process requirements, being in derogation of common law rights, must be strictly construed and compliance with them must be exact. See Carruth v. Design Interiors, Inc., 324 Ark. 373, 921 S.W.2d 944 (1996). Our supreme court has held that under ARCP 4(i), dismissal of a case for failure to make service of summons is mandatory. See Lyons v. Forrest City Machine Works, Inc., 301 Ark. 559, 785 S.W.2d 220 (1990). Given this clear line of authority, I do not understand how the chancellor was authorized to enter a divorce decree where the record contains no evidence that summons had been served on appellant within 120 days from the date the complaint was filed.
Our supreme court has held that Rule 4(b) sets out the technical requirements of a summons, and that compliance with those requirements must be exact. See Thompson v. Potlatch Corp., 326 Ark. 244, 930 S.W.2d 355 (1996). Although the appellee relies upon appellant’s signature and receipt of the reconciliation agreement, I find that reliance unsound. After all, the supreme court stated in Thompson v. Potlatch, supra, that a certificate of service is no substitute for a summons and that a summons is necessary to satisfy due process requirements.
The appellee argues that laches should prevent the appellant from asserting the divorce decree should be overturned; he also asserts that a decision reversing the chancellor and directing that the divorce decree be set aside would result in bigamatizing him because he remarried after the chancellor entered the divorce decree. That argument is unpersuasive. In the first place, appellant was represented by counsel at all relevant times. He filed for divorce from appellant on December 30, 1996, and knew that he was obligated to serve appellee with summons. He deliberately drafted the “reconciliation agreement” and obtained her signature to it on March 16, 1997, without serving the summons. The 120-day period for completing service ended on April 29, 1997. Although appellee had not moved to dismiss the complaint by May 8, 1997 (when the parties entered into a property settlement agreement), or on May 12, 1997 (when the divorce decree was entered), appellee is fairly charged with the knowledge that his complaint was supposed to be dismissed after April 29, 1997, either on appellee’s motion or upon the trial court’s initiative. He should be estopped to now argue that he was prejudiced by appellee’s failure to challenge his total failure to comply with our due process requirements when he plainly never intended to meet them in the first instance. Reversing and remanding the summary judgment in appellee’s favor would certainly complicate his domestic situation, but this is a complication brought on by his own machination.
Beyond that, I do not understand how we can read Rule 4(i) to allow the trial court to enter a decree of divorce in this case where the fact of the appellant’s impaired condition was directly before the trial court. I take appellee’s reliance on the “reconciliation agreement” and contention that appellant’s execution of that agreement constituted a substantial act tantamount to an answer, consent to a continuance, or proceeding to trial, to mean that appellant’s chemical dependency was before the trial court. After all, the chemical dependency was why appellee sought a divorce. Thus, I cannot conceive how appellee can be deemed to have clean hands so as to assert the equitable defense of laches when he deliberately used appellant’s impaired condition to deny her right to due process.
In addition, the policy ramifications of this decision are very troubling. If receipt of a “reconciliation agreement” after a divorce complaint has been filed but before summons has been served is an exception to the requirement that summons be served in order for a lawsuit to proceed, does that mean that mere receipt of the “reconciliation agreement” waives the defendant spouse’s right to object to the jurisdiction of the chancery court? Is our decision applicable outside the context of divorce proceedings? Does our decision mean that a trial judge now has no duty “upon the court’s initiative” to dismiss, without prejudice, an action where summons is not served upon a defendant within 120 days after the complaint is filed despite the plain language of a rule prescribed by our supreme court to that effect? If due process requires that summons be served upon a defendant and Rule 4(i) prescribes that failure to serve that summons within 120 days mandates that “the action shall he dismissed as to that defendant...,” how is due process satisfied where summons is not served and the action is not dismissed?
The result reached today has far-reaching and profoundly troublesome implications. I do not think it is judicially sound, fair, or wise. Therefore, I respectfully dissent. Judge KOONCE has authorized me to state that he joins this opinion.