dissenting. I cannot agree to affirm this case because it is clear to me that the appellee has failed to comply with the requirements of Ark. R. Civ. P. 4(f) (2001) that a “diligent inquiry” be conducted before service by warning order may be substituted for personal service upon a defendant.
At all relevant time during the proceeding, Arkansas Rule of Civil Procedure 4(f) (1999) provided in pertinent part:
(f) Service Upon Defendant Whose Identity or Whereabouts Is Unknown
(1) Where it appears by the affidavit of a party or his attorney that, after diligent inquiry, the identity or whereabouts of a defendant remains unknown, service shall be by warning order issued by the clerk and published weekly for two consecutive weeks in a newspaper having general circulation in a county where the action is filed and by mailing a copy of the complaint and warning order to such defendant at his last known address, if any, by any form of mail with delivery restricted to the addressee or the agent of the addressee.
The standard by which our appellate courts determine the adequacy of constructive service was set forth in Davis v. Schimmel, 252 Ark. 1201, 482 S.W.2d 785 (1972), in which the supreme court stated:
A method of service required for nonresidents is by publication-of warning order. Ark. Stat. Ann. §§ 52-203, 27-351 — 357. The rule is well established that when constructive notice only is given, the requirements of the statute must be strictly complied with. Sinclair Refining Co. v. Bounds, supra; Swartz v. Drinker, 192 Ark. 198, 90 S.W.2d 483; Missouri Pacific R. Co. v. McLendon, 185 Ark. 204, 46 S.W.2d 626; Lawrence v. State, 30 Ark. 719. Where essential statutory provisions governing service by publication are not strictly complied with as to nonresident defendants, all proceedings as to them are void. Beidler v. Beidler, 71 Ark. 318, 74 S.W. 13.
Where an action is based on constructive service, no action is commenced or cause pending until the proceedings provided for in the governing statute are complied with and if there is no such compliance, the proceedings are void, and the court has no power to take affirmative action. Swartz v. Drinker, supra; Missouri Pacific R. Co. v. McLendon, supra; Sinclair Refining Co. v. Bounds, supra; Frank v. Frank, supra. It is only where the affidavit prescribed by Ark. Stat. Ann. § 27 — 354 has been made and warning order based thereon has been issued that the action can be said to have been commenced or the cause pending, and until this is done, the court has no jurisdiction. Swartz v. Drinker, supra; Missouri Pacific R. Co. v. McLendon, supra; Frank v. Frank, supra.
The affidavit for warning order must show that the plaintiff has made diligent inquiry and that it is his information and belief that the defendant is a nonresident. It must strictly comply with the statute. Holloway v. Holloway, 85 Ark. 431, 108 S.W. 837; Waggoner v. Fogleman, 53 Ark. 181, 13 S.W. 729; Turnage v. Fisk, Executor, 22 Ark. 286; Allen & Hill, Admrs. v. Smith, 25 Ark. 495. The supreme court affirmed the trial court’s order setting aside the appointment of a receiver and entry of an oil and gas lease because the affidavit for warning order against the defendant/ appellee failed to comply strictly with statutory requirements.
This standard of requiring strict compliance has been followed by the supreme court in a number of Arkansas cases where constructive service was obtained. See Gilbreath v. Union Bank, 309 Ark. 360, 830 S.W.2d 854 (1992) (affirming trial court’s order setting aside a quiet-title decree where appellant did not state in the affidavit for warning order that defendant’s whereabouts were unknown); Smith v. Edwards, 219 Ark. 79, 648 S.W.2d 482 (1983) (affirming trial court’s dismissal of cross-complaint where appellant failed to conduct a diligent search before obtaining constructive service upon appellee by warning order); Pierce v. Pierce, 259 Ark. 312, 532 S.W.2d 747 (1976) (affirming trial court’s vacation of divorce decree where appellant failed to strictly comply with the requirements of constructive service). Significantly, in Gilbreath, the supreme court stated:
Where no diligent inquiry is made under rule 4(f)(1), we have affirmed dismissal of a complaint for improper service of process. See Horne v. Savers Federal Savings & Loan Ass’n, 295 Ark. 182, 747 S.W.2d 580 (1988); Smith v. Edwards, 279 Ark. 79, 648 S.W.2d 482 (1983). It is obvious in the case before us that the requisite inquiry was not made because the appellant did not conclude in his affidavit that the location of Catherine Morgan was unknown. Accordingly, we hold that the appellant’s affidavit for a warning order is facially defective under Rule 4(f)(1).
Gilbreath v. Union Bank, supra, (emphasis added). In the case before us, the affiant likewise did not state that Morgan’s whereabouts were unknown.
This court has followed the rationale and decisions of the supreme court where we have addressed the adequacy of constructive service. In Black v. Merritt, 37 Ark. App. 5, 822 S.W.2d 853 (1992), this court reversed the trial court’s denial of motions to set aside default judgments where the defect complained of was that appellee’s attorney, rather than the clerk, issued the warning order, and stated:
It is a well-settled rule that constructive service is a departure from the common law, and statutes providing for such service are mandatory and must be complied with exactly. This rule applies equally to the service requirements imposed by rules of the court. Proceedings conducted where the attempted service was invalid render judgments arising under them void. Wilburn v. Keenan Companies, Inc., 298 Ark. 461, 768 S.W.2d 531 (1989); Edmonson v. Farris, 263 Ark. 505, 565 S.W.2d 617 (1978); Davis v. Schimmell [Schimmel], 252 Ark. 1201, 482 S.W.2d 785 (1972).
Here, the appellees’ attempts to obtain service by publication did not comply with the provisions of either section of Rule 4. Both sections require that the warning order be issued by the clerk. Here, although the warning orders were published, they were not issued by the clerk of the court as required by the rule but by appellees’ attorney. The supreme court has held that compliance with provisions such as this is an essential prerequisite to the publication of warning orders. Absent such compliance, no jurisdiction can be acquired over the defendants and all proceedings as to them are void. Beidler v. Beidler, 71 Ark. 318, 74 S.W. 13 (1903).
Nor do we find merit in appellees’ argument that even though service might have been improper, appellant was required to show meritorious defenses in support of her motions under Ark. R. Civ. P. 60 d). It is well settled that in cases where a judgment is void for lack of jurisdiction, no proof of a meritorious defense is required under that rule. Cole v. First National Bank, 304 Ark. 26, 800 S.W.2d 412 (1990); Wilburn v. Keenan Companies, Inc., supra.
See also Self v. Self, 46 Ark. App. 250, 878 S.W.2d 436 (1994).
In this case, the affidavit for warning order was signed by the plaintiff-realtor. In it he asserts that from an “investigation” of the matter “the last known address for appellant is his post office box.” At the hearing, the realtor testified only that he made a phone call to the post office to see if appellant left a forwarding address. However, appellee made no further attempt to locate appellant and made no attempt to personally serve him using the post office address. Instead, apparently because he believed appellant had left the area following the sale of his home, he simply filed the affidavit and obtained and ran the warning order. An attorney ad litem was appointed and did subsequently send the complaint and warning order to the appellant’s post office box as required, but the certified letter was returned, marked “unclaimed.”1
One phone call clearly does not constitute diligent inquiry unless the term diligent is simply verbiage. Here, the appellee did not make such an inquiry, did not attest that he did so in his affidavit, and did not attest that Morgan’s whereabouts were unknown. See Gilbreath, supra. The majority has opined that any further attempts to locate the appellant would have been futile in this instance. However, appellee did not try to locate him, and it remains to be seen whether he could have done so, as appellant had sold his home by retaining a vendor’s lien, was receiving monthly payments from the purchasers, and testified that he was gone for only two months and that he still had friends in the area. The majority has incorrectly placed upon appellant the burden of demonstrating that he could have been located, when the proper analysis should be whether the rule allowing for constructive service was strictly complied with in this instance. It clearly was not, and I would reverse and dismiss.
Griffen and Neal JJ., join.Although not an issue in this appeal, I note that Ark. R. Civ. P. 4(d)(8)(A), provides that a summons, complaint, and notice shall be mailed to the defendant by first-class, regular mail where delivery of certified mailed process is “refused,” but Rule 4 fails to address perfecting service where the mailed process is “unclaimed.”