dissenting. In ruling Arkansas’s Garnishment Code unconstitutional, the majority does not claim that no notice was given the appellant garnishee, See Armstrong v. Manzo, 380 U.S. 545 (1965); or that the notice effected here was not reasonably calculated to reach the appellant. Mullane v. Central Hanover Trust Co., 339 U.S. 306 (1950). The majority rests its decision on the narrow proposition that Arkansas law fails to provide “adequate” notice to the appellant of the nature of the garnishment proceedings against it. In my view, the law and the facts cannot support such a holding.
In Mullane, the Supreme Court stated that the fundamental requirement of due process in any proceeding requires that “notice must be of such nature as reasonably conveys the required information.” Arkansas law comports with this due process requirement, and in doing so, service of a writ of garnishment and required notice is served upon the garnishee in the same manner as a defendant is served with a summons and complaint under ARCP Rule 4. See Ark. Code Ann. § 16-110-402 (1987) and in particular see ARCP Rule 4(a), (b) and (k). We approved such service in garnishment cases in May v. Bob Hankins Distributor Co., 301 Ark. 494, 785 S.W.2d 23 (1990).
The form and service requirements in garnishment cases are the same as those set out in Rule 4(b) for the service of a summons and complaint. In other words, the defendant must be notified of the time within which he must appear, file a pleading and defend, and to further notify him that, if he fails to respond, a default judgment may be entered against him for the relief demanded in the complaint. Stated differently, Rule 4(k) requires the same type form and notice used for serving a complaint and summons in civil actions to be used also when serving writs of garnishments upon garnishees. Thus, Rule 4(b) and (k) merely implement Ark. Code Ann. § 16-110-407 (Supp. 1989), by notifying the garnishee in the writ served upon him that, if any garnishee fails to answer interrogatories served against him, the court shall enter judgment against the garnishee for the amount specified in the plaintiffs (creditor’s) judgment against the original defendant (debtor) or employee of the garnishee.1
In compliance with Arkansas’s garnishment laws, the appellee here served her writ of garnishment and notice upon appellant by personal service through the Pulaski County Sheriffs Office. I attach a copy of that writ to the opinion for the reader’s review. That writ not only notified the appellant (garnishee) of the relief and amount of judgment that its employee (the original defendant debtor) owed appellee (original plaintiff creditor), but it likewise notified the appellant garnishee that if it failed to answer the writ or interrogatories, the court would enter a judgment against the garnishee for the full amount plus costs specified in the writ. Arkansas’s garnishment laws and the notice given here comply with those laws meeting requisite due process requirements. I fail to see how garnishee could be entitled to more information than that now provided by Arkansas law, and that information given appellant in this case. Appellant simply ignored that notice.
In conclusion, I am compelled to mention that the majority’s holding raises other questions that now must be addressed by either this court or the General Assembly — the initial question is which of these two bodies has the power to correct the so-called procedural or notice defect in Arkansas’s garnishment laws. In recent decisions, this court has held that it will give full effect to legislation in an area of procedure or practice that it has not preempted by rule and will defer to the General Assembly where a court rule conflicts with a public policy adopted by legislative act or as a part of the constitution. Lyons v. Forrest City Machine Works, Inc., 301 Ark. 559, 785 S.W.2d 220 (1990); St. Clair v. State, 301 Ark. 223, 783 S.W.2d 835 (1990); Curtis v. State, 301 Ark. 208, 783 S.W.2d 47 (1990). In Lyons, we stated that, by our adopting ARCP Rule 4, the court preempted the area of service of process, and because Act 401 of 1989 (a law dealing with service of process) deviated or conflicted with Rule 4, the court held Rule 4 controlling.
In the present case, this court, under Rule 4(k), seems to have preempted the service of writs of garnishment by providing such writs may be served in th¿ manner prescribed in Rule 4, which, of course, includes Rule 4(b) discussed above. Thus, it appears the constitutional defect (lack of sufficient notice) pointed out by the majority court in garnishment proceedings in a problem that needs to be corrected by this court. This conclusion, however, becomes somewhat murky in view of ARCP Rule 81 (a), which provides as follows:
(a) Applicability in General. These rules shall apply to all civil proceedings cognizable in the circuit, chancery, and probate courts of this State except in those instances where a statute which creates a right, remedy or proceeding specifically provides a different procedure in which event the procedure so specified shall apply.
In construing Rule 81 (a) in Travelodge International, Inc. v. Handelman Nat. Book Co., 288 Ark. 368, 705 S.W.2d 440 (1986), we stated that a garnishment proceeding is a special statutory action, and we then held ARCP Rules 5 (c), 10(a), 7 (a), and 5(e) were therefore inapplicable in that case. However, in the same case, we applied ARCP Rule 60(b) because, in the terms of Rule 81(a), the garnishment statutes did not provide for a procedure for setting aside a judgment.
As the majority opinion here mentions, Ark. Code Ann. § 16-110-402 (1987), albeit inadequate, provides for the service of writs of summons. That statute only provides for lawful service if you apply and construe Rule 4, to implement § 16-110-402, as Rule 4(k) specifically so provides.2 In any event, the question surfaces as to which remedial law or rule will control if both the General Assembly and this court enact or promulgate a statute or rule to correct the garnishee-notice problem the majority opinion says exists in Arkansas’s garnishment proceedings.
Having stated what I believe to be some of the problems that will arise due to the majority holding, I again reiterate my disagreement. I would affirm the trial court and uphold its ruling that the state’s garnishment statutes are constitutional. In adopting this view, the court would properly avoid the confusion that will surely follow this court’s decision.
Brown, J., joins this dissent.[[Image here]]
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Act 463 of 1989 [now codified as Ark. Code Ann. § 16-110-407 (Supp. 1989)] limits such default judgment to the amount of nonexempt wages owed employee on date employer was served with writ.
In applying Rule 4 to Arkansas’s garnishment laws in these circumstances, one should indulge their presumption of constitutionality — a longstanding principle of statutory construction which, I suggest, the majority court chooses to ignore in this case.