Opinion
No. 5-145
Opinion delivered June 29, 1953.
APPEAL AND ERROR DISMISSAL. — From a judgment against appellant he has appealed and in compliance with Rule 21 of this court summons was issued commanding appellee to appear within sixty days and defend; but the summons was not served within the time specified and the appeal will be dismissed.
Appeal from Ashley Circuit Court; John M. Golden, Judge; dismissed.
Appellant Pro Se.
A. James Linder, for appellee.
The judgment, from which is this appeal, was rendered October 20, 1952.
June 16, 1953, appellee, Campbell Equipment Co., filed in this Court a "Motion to Dismiss" on the ground:
"1. That no service of summons has been had upon appellee in this matter, nor has service of summons been waived by appellee or anyone for appellee, and therefore appellee's appearance has not been entered in this court in this matter. 2. That copy of brief of appellant has not been furnished appellee as provided by the rules of this court, and that appellee has not had the benefit of having appellant's brief, and therefore has had no opportunity to prepare a brief in this cause."
Rule 21. "Rules of the Supreme Court of Arkansas," May, 1945, 207 Ark. Reports, provides: "(a) Summons — When an appeal is granted by the Clerk of this Court, a summons shall be issued, commanding the appellee to appear within sixty days and defend."
The record in the office of the Clerk of this Court reflects that this appeal was filed March 27, 1953, and summons, returnable in sixty days, was issued on that same date. No return on this summons has been made. No service of summons, waiver thereof, or entry of appearance on behalf of appellee is shown.
It appears from our decisions, such as Bell v. Rice, 183 Ark. 105, 35 S.W.2d 88, and Foreman v. Dickinson, 177 Ark. 121, 6 S.W.2d 829, that prior to the revision of our Rule 21, above, in 1945, service of summons on an appellee was required to be had within a reasonable time after appeal, which time varied in most cases. Under the above rule, a definite time limit of sixty days following the granting of the appeal by this Court within which summons may be served on appellee has been fixed, thus obviating a finding by this Court of what would be a reasonable time, in the circumstances.
It appearing, therefore, that service of summons was not had on appellee within the sixty days allowed, the appeal must be and is dismissed.