Knights of Honor of World v. Epps , 123 Ark. 371 ( 1916 )

Kirby, J.,

(after stating the facts). Section 4378 of Kirby’s Digest relating to the service of process in suits upon policies or certificates of insurance against fraternal orders and societies, such as Knights of Honor, etc., provides, “Service of process on the chief officer, or in case of his absence, the secretary of the subordinate lodge or society through which the policy, was issued or obtained, or on the chief officer, or in case of his absence, on the secretary of any subordinate lodge in this State, of such fraternal society, shall be a good and valid service on such lodge, society or institution.”

Section 6045, Kirby’s Digest, providing for the service of summons upon domestic corporations, after giving the name of the officers upon whom the service shall be had, continues: “In case of the absence of the above officers, then it may be served upon the cashier, secretary, etc.”

The court, construing this statute, held that the return on a summons showing service upon a domestic corporation upon an agent other than the president without showing that the president of the company was absent from the county, did not show a legal service. Arkansas Coal, etc., Co. v. Haley, 62 Ark. 144; Arkansas Construction Co. v. Mullins, 69 Ark. 429.

(1) We think the language of said section 4378 relative to the service of process upon fraternal societies, authorizing its service upon the chief officer, “or in case of his absence, the secretary of the subordinate lodge or society, through which the policy was issued or obtained, etc.,” must be construed as was virtually the same language in the other section, to mean absence from the county, where the process is to be served.

The undisputed testimony herein and the sheriff’s return, show that the summons was not served on J. A; Stevenson, the dictator and chief officer of the lodge, and that he was not out of the county but upon the plantation where he lived, about his usual duties, on the day of the service and neither was it served upon the secretary of the lodge, but only upon the reporter or collector, who had no duties' that required him to write to the Grand Lodge.

(2) The service of summons not having been upon the officer of the lodge or society as required by law, was not a valid service'upon said lodge or society and the judgment rendered thereon was void, and the court having found that the' lodge had a valid defense to the suit, erred in not vacating the judgment and permitting it set up.

The contention that the judgment is not final and can not be appealed from is without merit. The court heard the matter upon the allegations of the motion and denied the motion to vacate the judgment which'was a finality precluding appellant from any further right to have the alleged void judgment set aside or defend against the cause of action therein adjudicated.

It follows that the judgment must be reversed and the cause remanded with directions to sustain the motion and vacate said judgment, and for further proceedings, according to law. It is so ordered.