dissenting. Because I believe stice, judgment was void ab initio from a failure of appellees to strictly comply with the requirements for a summons, and because I believe that System’s unconditional right to intervene warrants setting aside the default judgment so that it can protect its interest under the indemnification clause with Nucor, I respectfully dissent.
Rule 4(b) of the Arkansas Rules of Civil Procedure provides:
Form. The summons shall be styled in the name of the court and shall be dated and signed by the clerk; be under the seal of the court; contain the names of the parties; be directed to the defendant; state the name and address of the plaintiff s attorney, if any, otherwise the address of the plaintiff; and the time within which these rules require the defendant to appear, file a pleading, and defend and shall notify him that in the case of his failure to do so, judgment by default may be entered against him for the relief demanded in the complaint.
Ark. R. Civ. P. 4(b) (2003) (emphasis added).
In the case now before us, the summons listed the defendants as “Nucor Corporation, et al.” The complaint listed the defendants as “Nucor Corporation, Roderick Warren, individually, and John Doe.” Appellee Evans contends that, pursuant to the court of appeals’ holding in Builder One Carpet One v. Wilkins, 83 Ark. App. 252, 128 S.W.3d 828 (2003), the summons was proper. I disagree. In that case, the defendant was named as “Builder One Carpet One a/d/b/a Design One Carpet One” rather than “Design One Carpet One.” The court of appeals looked to Arkansas law concerning the service of writs of garnishment, as well as the laws of other jurisdictions concerning misnomers, after determining that “[t]he question of misnomer on a complaint in regard to the validity of service of process has not been often addressed in Arkansas.” Id. The court of appeals held that the misnomer was not fatal, stating:
[i]t is apparent that Design One Carpet One was the intended defendant and was simply misnamed “Builder One Carpet One a/d/b/a Design One Carpet One” because appellees were unable to identify the form of business that Design One Carpet One operated. Appellees used the d/b/a “Design One Carpet One” throughout the complaint, and appellees introduced evidence at the hearing on appellant’s motion to set aside that Design One Carpet One was a member of the Better Business Bureau of Arkansas, Inc. (BBB), and that the BBB records indicated that it was a member, . . . and that the “company is affiliated with Builders One - Carpet One.”
Id.
A misnomer is defined as “[a] mistake in naming a person, place, or thing, esp. in a legal instrument.” Black’s Law Dictionary 1015 (7th ed. 1999). The use of “et al.” on the summons as a substitution for the names of two parties is not a misnomer. “Et al.” means “[a]nd other persons.” Black’s Law Dictionary 573 (7th ed. 1999). Rule 4(b) requires that the summons contain the names of the parties.
In this case, the summons contained the names of four parties: Marty Kilman, Mike Evans, and Betty Evans, as plaintiffs, and Nucor Corporation, as the defendant. Though two other defendants had been named in the suit, Nucor was the only defendant listed on the summons.
In Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003) (“Moncrief’), we pointed out that we require strict compliance with Rule 4 and articulated this principle as follows:
Arkansas law is long settled that service of valid process is necessary to give a court jurisdiction over a defendant. Raymond v. Raymond, 343 Ark. 480, 36 S.W.3d 733 (2001) (citing Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982)). Our case law is equally well-settled that statutory service requirements, being in derogation of common-law rights, must be strictly construed and compliance with them must be exact. Id.; Carruth v. Design Interiors, Inc., 324 Ark. 373, 921 S.W.2d 944 (1996) (citing Wilburn v. Keenan Companies, Inc., 298 Ark. 461, 768 S.W.2d 531 (1989) and Edmonson v. Farris, 263 Ark. 505, 565 S.W.2d 617 (1978)). This court has held that the same reasoning applies to service requirements imposed by court rules. Carruth v. Design Interiors, Inc., supra; Wilburn v. Keenan Companies, Inc., supra. More particularly, the technical requirements of a summons set out in Ark. R. Civ. P. 4(b) must be construed strictly and compliance with those requirements must be exact.
Moncrief, supra (emphasis added). Default judgments are void ah initio due to defective process regardless of whether the defendant had actual knowledge of the pending lawsuit. Id.
As previously noted, in Moncrief, supra, the court reiterated that “the technical requirements of a summons, and compliance with those requirements must be exact.” Id. Accordingly, in Moncrief, we held that a summons that incorrectly identifies the defendants and misstates the deadline for responding to the complaint does not strictly comply with the service requirements imposed by our court rules. Id.
We have many other cases demonstrating our requirement of strict compliance. In Thompson v. Potlatch Corp., 326 Ark. 244, 930 S.W.2d 355 (1996), the court held that the trial court correctly denied the appellants’ motion to strike and motion for default judgment because the record did not reflect the issuance of a summons. In Carruth v. Design Interiors, Inc., 324 Ark. 373, 921 S.W.2d 944 (1996), we stated that the trial court should have granted the motion to dismiss for failure of service of process because the summons was not signed by the clerk, as is required by Rule 4. In Wilburn v. Keenan Companies, Inc., 298 Ark. 461, 768 S.W.2d 531 (1989), we concluded that the trial court erred in denying the motion to set aside default judgment where the judgment was void ab initio because the service of summons and complaint was not in compliance with Rule 4(a)(3), in that there was no evidence that the appellee had directed the summons and complaint to be mailed with restricted delivery. In Southern Transit Co., Inc. v. Collums, 333 Ark. 170, 966 S.W.2d 906 (1998), this court stated that since the summons did not strictly comply with the technical requirements of Ark. R. Civ. P. 4(b), the trial court could have held the default judgment void due to the defective summons regardless of the fact that Southern Transit had actual knowledge of the complaint against it.
In the present case, the summons did not comply with the technical requirements set out in Rule 4(b), in that it did not contain the correct names of the parties. I would hold that the trial court erred in denying Nucor’s motion to set aside default judgment pursuant to Rule 55(c)(2). I would conclude that the default judgment is void ab initio due to defective process. I must also dissent because I believe that Systems had a right to intervene, pursuant to Ark. Code Ann. § ll-9-410(a)(l)(A) (Repl. 2002) and Rule 24(a)(1) of the Arkansas Rules of Civil Procedure. Section ll-9-410(a)(l)(A) provides:
(a) LIABILITY UNAFFECTED. (1)(A) The making of a claim for compensation against any employer or carrier for the injury or death of an employee shall not affect the right of the employee, or his or her dependents, to make a claim or maintain an action in court against any third party for the injury, but the employer or the employer’s carrier shall be entitled to reasonable notice and opportunity to join in the action.
Id. (emphasis added).
Rule 24(a)(1) provides: “Upon timely application anyone shall be permitted to intervene in an action when a statute of this state confers an unconditional right to intervene.” Id. Systems contends that section ll-9-410(a)(l)(A) confers an unconditional right of intervention. I agree. Our court has stated that Ark. Code Ann. § ll-9-410(a)(l)(A) gives the employer’s compensation carrier the right to intervene, and, the majority correctly holds that the carrier may intervene as a matter of right under Ark. R. Civ. P. 24(a) to protect its right of subrogation. Carton v. Missouri Pacific Railroad, 315 Ark. 5, 865 S.W.2d 635 (1993). Based on a plain reading of the language in Ark. Code Ann. § ll-9-410(a)(l)(A), I would hold that Systems has an unconditional right to intervene.
Even if the majority holding that the default judgment against Nucor should not be set aside because of the defect in the summons, I believe that Systems’s right to intervene should result in setting aside the default judgment. Systems should have the right to intervene for the purpose of protecting its interest in agreeing to indemnify Nucor, and any default judgment that would impose liability on Systems should be set aside.
For the foregoing reasons, I dissent.
I am authorized to state that Chief Justice Dickey joins this dissent.