                                 Cite as 2014 Ark. App. 241

                 ARKANSAS COURT OF APPEALS
                                        DIVISION I
                                       No. CV-14-42


                                                  Opinion Delivered   April 23, 2014
MONSANTO COMPANY
                               APPELLANT          APPEAL FROM THE WOODRUFF
                                                  COUNTY CIRCUIT COURT
V.                                                [NO. CV-2012-18]

NICHOLAS EMMETT WILSON and                        HONORABLE RICHARD L.
GREEN ACRES FARMS, LLC                            PROCTOR, JUDGE
                     APPELLEES

                                                  APPEAL DISMISSED



                              BILL H. WALMSLEY, Judge

       Appellant Monsanto Company appeals from the trial court’s order setting aside its

default judgment against appellees and dismissing its complaint for failure to perfect service.

We must dismiss the appeal because there is no final order.

       Monsanto filed suit against Nicholas Wilson on March 8, 2012, making several claims

arising out of a soybean-seed-grower contract. On May 17, 2012, Monsanto filed an affidavit

in support of warning order, claiming that it had been unable to personally serve Wilson

because it could not determine his whereabouts. A warning order was issued by the clerk.

On June 25, 2012, Monsanto filed an affidavit of service by warning order and a motion for

default judgment, alleging that Wilson was served by publication, that no answer had been

filed, and that Monsanto was owed $35,491.13. The trial court entered the default judgment

on July 11, 2012, awarding Monsanto the principal sum, prejudgment interest, costs, an
                                 Cite as 2014 Ark. App. 241

attorney’s fee, and postjudgment interest.

       On May 9, 2013, Wilson filed a motion to set aside the default judgment for

insufficient service of process. He alleged that service by warning order was not justified

because Monsanto had not made a diligent attempt to perfect personal service. After a hearing

on the motion, the trial court found that Monsanto had not strictly complied with the

requirements for service. The trial court entered its order on October 7, 2013, finding that

the default judgment should be set aside. The court further found that service of process had

not been perfected within 120 days and dismissed the case. Monsanto filed a timely notice

of appeal.

       The question of whether an order is final and subject to appeal is a jurisdictional

question that this court will raise on its own. Carroll v. Baker, 2011 Ark. 98. Orders setting

aside default judgments are not final for purposes of appeal where the setting-aside paves the

way for a trial on the merits. Littleton v. Albert-Littleton, 89 Ark. App. 325, 202 S.W.3d 563

(2005). Furthermore, an order of dismissal without prejudice pursuant to Arkansas Rule of

Civil Procedure 4(i) for failure to make service on the defendant within 120 days is also not

final. The supreme court in Carroll held as follows:

               Rule 4(i) is mandatory; where service is not made on a defendant within 120
       days of the filing of the complaint, a circuit court must dismiss the action without
       prejudice to refiling those claims. See Jordan, 366 Ark. 326, 235 S.W.3d 487. Because
       a plaintiff who has his case dismissed without prejudice under Rule 4(i) may refile
       those claims, his position after the dismissal is no different than that of a plaintiff who
       voluntarily nonsuits his claims. It therefore logically follows from our rationale in
       Jordan that a first dismissal under Rule 4(i) does not function as an adjudication on the
       merits, and the order dismissing a plaintiff’s claims without prejudice under 4(i) would
       not be a final appealable order based on a logical extension of our reasoning in Beverly
       Enterprises-Arkansas, Inc.

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                                 Cite as 2014 Ark. App. 241

Id. at 4. The supreme court dismissed the appeal upon concluding that it was not taken from

a final, appealable order.

       Here, the order being appealed sets aside Monsanto’s default judgment then dismisses

Monsanto’s complaint for failure to perfect service within 120 days. As stated above, a first

dismissal for failure to serve under Rule 4(i) is not a final, appealable order. Thus, we dismiss

the appeal.

       Appeal dismissed.

       WOOD and BROWN, JJ., agree.

       The Key Firm, PLLC, by: Shawn Key, for appellant.

       No response.




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