560 S.W.2d 221 | Ark. | 1978
Arkmo Lumber & Supply Company brought suit against the petitioners to enforce a materialman’s lien. The petitioners appeared specially and moved to quash the service on the ground that the summons merely directed them to answer the plaintiff’s complaint within 20 days, without further warning them, in the language of the statute, that they were required to answer “under the penalty of the complaint being taken for confessed.” Ark. Stat. Ann. § 27-306 (Repl. 1962). Upon the trial court’s overruling the motion to quash service, the petitioners sought a writ of prohibition here.
It is argued, on the authority of DeSoto, Inc. v. Crow, 257 Ark. 882, 520 S.W. 2d 307 (1975), that the asserted defect in the summons denies the petitioners due process of law. This argument is completely without merit. In DeSoto a default judgment had been entered against a garnishee pursuant to a writ of garnishment that merely required the garnishee to answer what he owed the principal defendant, without any indication that failure to answer could result in judgment against the garnishee. We held that in the circumstances the entry of the default judgment was a denial of due process.
If the judgment in DeSoto had been upheld, obviously the garnishee would have been prejudiced by the defective writ. Here, to the contrary, there has been no prejudice whatever. The petitioners employed counsel and appeared specially in an effort to quash the service. They have not been denied either notice or an opportunity to be heard. We need not speculate upon their plight if they had ignored the summons and allowed judgment to be entered by default. That situation is not before us.
Writ denied.
