Coleman v. Young, 74--55
| Citation | 510 S.W.2d 877,256 Ark. 759 |
| Decision Date | 17 June 1974 |
| Docket Number | No. 74--55,74--55 |
| Parties | Nylan W. COLEMAN et ux., Appellants, v. Nolan B. YOUNG, Appellee. |
| Court | Arkansas Supreme Court |
Frierson, Walker, Snellgrove & Laser by Gary E. Johnson, Jonesboro, for appellants.
Hale, Fogleman & Rogers by Joe M. Rogers, West Memphis, for appellee.
Appellants' tort action was dismissed on the theory that it was barred by the three year statute of limitations, Ark.Stat.Ann. § 37--206 (Repl.1962). Appellants had first filed suit in federal district court, took a nonsuit and refiled in state court. Appellants contend they had a right to refile within one year from the dismissal of the federal court action, relying on the 'saving statute' incorporated in Ark.Stat.Ann. § 37--222 (Repl.1962).
The suit arose from an automobile collision which occurred in Crittenden County on December 10, 1969. Suit was filed in federal district court in Arkansas on December 5, 1972, based on alleged diversity of citizenship. On the day suit was filed summons was placed in the hands of the United States Marshal. The summons called for service by certified mail on the defendant at an address in West Point, Mississippi.
A motion to dismiss for want of diversity of citizenship was filed by defendant-appellee. From the pleadings and uncontroverted affidavits it appears certain appellee was at the time of the collision a resident of Mississippi; however, he moved to Blytheville, Arkansas, and had been living there for more than a year at the time the suit was filed in federal court. In that situation the plaintiff-appellant moved for and was granted a dismissal without prejudice on March 12, 1973. Then on April 5, 1973, the action was refiled in the Circuit Court of Crittenden County, and service of summons was had the same month.
The defendant-appellee moved for dismissal on the theory the action was barred by the three year statute of limitations, § 37--206 supra. Appellee successfully advanced in the trial court a two-fold theory to support his motion for dismissal. First, he argued that since there was no diversity of citizenship at the time the suit was filed in federal court, the filing thereof did not toll the statute. He deduces that no suit was legally commenced because the complaint was not filed in the office of the clerk of the proper court, citing Ark.Stat.Ann. § 27--301 (Repl.1962). That section provides that 'A civil action is commenced by filing in the office of the clerk of the proper court a complaint and causing a summons to be issued thereon, and placed in the hands of the sheriff of the proper county or counties'. Second, he argues that summons was not placed in the hands of the proper officer as required by § 27--301. He points out that summons was given to the United States Marshal, that officer having no legal authority to perfect service because appellee was not a resident of Mississippi.
Appellee concedes we have cases which 'seem to stand...
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Posner v. Merrill Lynch, Pierce, Fenner & Smith
...§ 37-222 (1962 ed.), provides a one year grace period in which to refile an action which has been "non-suited." See Coleman v. Young, 256 Ark. 759, 510 S.W.2d 877 (1974) holding timely under § 37-222 an otherwise stale action which had been reinstituted within one year of federal court's di......
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Labarge, Inc. v. UNIVERSAL CIRCUITS INC.
...to an action originally filed in federal court even though the federal court lacked subject matter jurisdiction. Coleman v. Young, 256 Ark. 759, 510 S.W.2d 877 (1974). In so holding, the court stated "Manees points out that the statute should be given a liberal and equitable construction to......
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Carton v. Missouri Pacific R. Co.
...for lack of subject matter jurisdiction, to refile the same action within the period of the "saving statute." See Coleman v. Young, 256 Ark. 759, 510 S.W.2d 877 (1974). For the purposes of the statute, a dismissal of a complaint on defendant's motion is the same as a nonsuit. Norm Co. v. Ha......
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Whittle v. Wiseman, 81-1935
...and is dismissed without prejudice, the plaintiff may commence a new action within one year after such dismissal. See Coleman v. Young, 256 Ark. 759, 510 S.W.2d 877 (1974). Because § 1983 does not contain its own statute of limitations, the general rule is to apply the state statute of limi......