Ark. Code Ann. § 16-65-108 (2026)

Research References

Ark. L. Rev.

Comment, Service of Process — Default Judgment, etc., 40 Ark. L. Rev. 381.

Case Notes

In General.

Judgment without notice to parties is void. Townsly-Myrick Dry Goods Co. v. Fuller, 58 Ark. 181, 24 S.W. 108 (1893); Grinstead v. Wilson, 69 Ark. 587, 65 S.W. 108 (1901).

Applicability.

This section was not applicable to order of chancery court restraining parties from entering property. Arkansas State Hwy. Comm'n v. Hammock, 201 Ark. 927, 148 S.W.2d 324 (1941).

Sureties, having made themselves parties to the suit by entering into the appeal bond, are not entitled to notice before decree against them. Whetstone v. Atlas Drilling & Prod. Co., 241 Ark. 487, 409 S.W.2d 322 (1966).

This section is not applicable to an order to the Workers' Compensation Commission. Dura Craft Boats, Inc. v. Daugherty, 247 Ark. 125, 444 S.W.2d 562 (1969).

Intervention.

Although the State of Arkansas was indeed a party to the litigation, the Arkansas Game and Fish Commission and the Arkansas Soil and Water Conservation Commission were not parties to the litigation and, therefore, the chancery court erred by assuming jurisdiction over the commissions and a judgment ordering them to monitor the level of a lake was void. Taylor v. Zanone Props., 342 Ark. 465, 30 S.W.3d 74 (2000).

Issue Raised.

Where complaint based on a foreclosure to land stated that no notice of the land sale had been given, the court held the issue of the lack of notice was raised by the pleadings. Beck v. Rhoads, 235 Ark. 619, 361 S.W.2d 545 (Ark. 1962).

Judgment Void.

Any judgment rendered in vacation is invalid. Biffle v. Jackson, 71 Ark. 226, 72 S.W. 566 (1903).

An overdue tax sale based on a judgment rendered by a special judge at an adjourned term of the court held on a day when the regular judge was holding the regular term of court in another county in the same circuit is a nullity. Caldwell v. Barrett, 71 Ark. 310, 74 S.W. 748 (1903).

Where in order to have rights in certain lands determined court confirmed title in one of defendants without the defendant having filed a cross-complaint and without notice to the other defendants and without any sort of pleadings which would authorize the decree, the judgment was void on the face of the record and not res judicata. Woolfolk v. Davis, 225 Ark. 722, 285 S.W.2d 321 (1955).

Under this section the defendant does not seek a trial, but asks that the judgment be declared void. White v. Ray, 267 Ark. 83, 589 S.W.2d 28 (1979).

In cases where judgments are void, no proof of a meritorious defense is necessary to set aside judgment. Cole v. First Nat'l Bank, 304 Ark. 26, 800 S.W.2d 412 (1990).

The doctrine res judicata or election of remedies do not apply when the out-of-state judgment on the issues in controversy has been declared void. Sides v. Kirchoff, 316 Ark. 680, 874 S.W.2d 373 (1994).

Although the State of Arkansas was indeed a party to the litigation, the Arkansas Game and Fish Commission and the Arkansas Soil and Water Conservation Commission were not parties to the litigation and, therefore, the chancery court erred by assuming jurisdiction over the commissions and a judgment ordering them to monitor the level of a lake was void. Taylor v. Zanone Props., 342 Ark. 465, 30 S.W.3d 74 (2000).

Judgment debtors were properly granted summary judgment in the judgment creditor's foreclosure action because the judgment was not revived in accord with the statute governing the issuance of a writ for scire facias as a writ had not been served on the debtors as required by the statute; thus, the order of revivor was void. Rose v. Harbor East, Inc., 2013 Ark. 496, 430 S.W.3d 773 (2013).

Notice.

A judgment of a court of general jurisdiction rendered without service of summons without the statutory written notice cannot be assailed if the defendant in the judgment had actual notice. Renfroe v. Parmelee, 143 Ark. 547, 220 S.W. 816 (1920).

Court may cause notice to be given when necessary to serve the purpose of justice, but plaintiff, having invoked the jurisdiction of the court, must take notice of the regular or adjourned sessions thereof. Berry v. Sims, 195 Ark. 326, 112 S.W.2d 25 (1938).

Where the uncontradicted testimony was to the effect that appellants had no notice of any kind, that the foreclosure suit would be or was, in fact, filed in this case, then the foreclosure decree, together with the deeds based thereon, would be subject to collateral attack. Beck v. Rhoads, 235 Ark. 619, 361 S.W.2d 545 (Ark. 1962).

An order dismissing plaintiff's complaint without prejudice, entered without notice while the court was not in session, was void and was properly set aside without the filing of a verified complaint therefor by the plaintiff. Pepsi-Cola Bottling Co. v. Steel, 245 Ark. 284, 431 S.W.2d 854 (1968).

Where the plaintiff did not demonstrate that sufficient inquiry was made in attempting to ascertain appellant's last known address and thereby deprive him of “reasonably probable” actual notice consistent with due process and the substitute service statute § 16-58-121 (a) and (b) was not sufficiently complied with, the default judgment was void. Halliman v. Stiles, 250 Ark. 249, 464 S.W.2d 573 (1971).

On motion to set aside default judgment on ground of defective service of process where service was invalid, judgment was void ab initio. Edmonson v. Farris, 263 Ark. 505, 565 S.W.2d 617 (1978).

This section has to do with a judgment entered without any notice whatever, not merely without formal notice. White v. Ray, 267 Ark. 83, 589 S.W.2d 28 (1979).

A summons notice to be valid must be reasonably calculated to make the defendant aware of his duty to take action or risk entry of a default judgment; judgments by default rendered without valid service of notice are judgments rendered without jurisdiction and are therefore void. Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982), overruled, Southern Transit Co. v. Collums, 333 Ark. 170, 966 S.W.2d 906 (Ark. 1998). But see Southern Transit Co. v. Collums, 333 Ark. 170, 966 S.W.2d 906 (Ark. 1998).

—Constructive Service.

A judgment enforcing an attachment on land based on constructive service will not be quashed on certiorari because sheriff's return was defective if the judgment defendant had an adequate remedy at law allowing parties against whom judgment is rendered on constructive service two years in which to come into court and move to have case retried. Gates v. Hayes, 69 Ark. 518, 64 S.W. 271 (1901).

A judgment based on constructive service by publication is void where a warning order was not made upon the complaint. Beidler v. Beidler, 71 Ark. 318, 74 S.W. 13 (1903).

A decree of divorce based upon constructive service by publication without actual service is void where her name was given in the complaint, warning order, and decree was erroneous. Grober v. Clements, 71 Ark. 565, 76 S.W. 555 (1903).

Where a resident defendant is served with constructive service, the proceedings are null and void. Barksdale v. Barksdale, 170 Ark. 228, 279 S.W. 789 (1926).

—Presumption.

Where infant heirs and their guardian ad litem were served with process in a suit to foreclose mortgage, and no attempt was made to vacate decree until all party defendants had attained 21 years, then all joined in action to vacate judgment on grounds that process had been defective, it was held that the presumption of service was conclusive from the record and could not be contradicted by evidence. Boyd v. Roane, 49 Ark. 397, 5 S.W. 704 (1887).

A presumption of regularity attends a judgment of a superior court of general jurisdiction which can be controverted only by showing that there was no notice and that a meritorious defense existed which could have been asserted notwithstanding this section. Soverigan Camp, W. W. v. Wilson, 136 Ark. 546, 207 S.W. 45 (1918).

Pleadings.

When a motion alleges that the judgment is void, and the challenge is based on this section, the movant who had no notice of the suit against him need not allege a meritorious defense to have the judgment set aside. Green v. Yarbrough, 299 Ark. 175, 771 S.W.2d 760 (1989).

Service of Process.

Because service of process was insufficient to give notice, the default judgment was void ab initio. Office of Child Support Enforcement v. Mitchell, 330 Ark. 338, 954 S.W.2d 907 (1997).

Supersession.

The reporter's notes to A.R.C.P., Rule 71, suggest that this section is superseded, but if this section is superseded by Rule 71 it is only to the extent necessary “for enforcing obedience” to orders of the court, and is expressly not superseded with respect to judgments by default. Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982), overruled, Southern Transit Co. v. Collums, 333 Ark. 170, 966 S.W.2d 906 (Ark. 1998). But see Southern Transit Co. v. Collums, 333 Ark. 170, 966 S.W.2d 906 (Ark. 1998).

Writ of Garnishment.

Where a writ of garnishment served as summons in an action but failed to notify the garnishee that failure to answer could result in judgment against him, proper notice was not given which was a fatal defect in the writ. DeSoto, Inc. v. Crow, 257 Ark. 882, 520 S.W.2d 307 (1975).

Cited: Halliman v. Stiles, 250 Ark. 249, 464 S.W.2d 573 (1971); Davis v. Schimmel, 252 Ark. 1201, 482 S.W.2d 785 (1972); Edmonson v. Farris, 263 Ark. 505, 565 S.W.2d 617 (1978); Southern Paper Box Co. v. Houston, 15 Ark. App. 176, 690 S.W.2d 745 (1985).