Oliver v. Miller
| Decision Date | 09 November 1965 |
| Docket Number | No. 5-3683,5-3683 |
| Citation | 396 S.W.2d 288,239 Ark. 1043 |
| Parties | Dow OLIVER, Administrator, Appellant, v. Margery E. MILLER, Administratrix, Appellee. |
| Court | Arkansas Supreme Court |
John M. Lofton, Jr., Little Rock, Jack Yates, Ozark, for appellant.
Edgar Woolsey, Jr., Clarksville, Jeff Mobley and William R. Bullock, Russellville, for appellee.
This appeal involves a head-on collision between two vehicles killing both drivers, Mrs. Glenda Oliver and Stanley Miller, who were the only occupants of the cars. Appellant first contends that the present action is barred by a previous one.
The accident occurred on December 14, 1963. Six days later, or December 20th, Dow Oliver, husband of Mrs. Oliver, on behalf of himself and their four children, filed suit against Leon Hoing, the special administrator of the estate of Mr. Miller, in the Circuit Court of Franklin County, Arkansas seeking damages for the alleged wrongful death of his wife. On that date Mrs. Miller was advised by letter that a special administrator of her husband's estate had been appointed for the specific purpose of securing service of summons upon the administrator in that action. Within the time to answer the special administrator filed a motion to quash the service of summons upon him. No further pleadings were filed in the case and on February 7, 1964 the suit was dismissed 'without prejudice'. On the previous day an order was entered in the Probate Court of Franklin County appointing Dow Oliver the administrator of the estate of Glenda Oliver, deceased, and permitting him to settle with the special administrator the pending suit in circuit court for the sum of $8,500.00.
On February 26, 1964 Mrs. Miller, as administratrix of the estate of Stanley Miller, decedent, filed the complaint in the instant case against Dow Oliver as administrator of the estate of Glenda Oliver, decedent, in the Circuit Court of Johnson County, Arkansas. Mrs. Miller sought damages for the alleged wrongful death of her husband as a result of the same accident that was involved in the suit of Oliver v. Hoing, supra, which had been dismissed without prejudice. Upon a trial the jury found the issues in favor of the appellee and awarded her, as administratrix of her husband's estate, the sum of $13,500.00. From the judgment on this verdict appellant brings this appeal.
For reversal it is urged that the court erred in refusing appellant's motion to dismiss appellee's complaint because of appellee's failure to file a counterclaim in the prior action which was between the same parties and involving the same issues of fact in the Franklin County Circuit Court. Appellant insists that the mandatory provisions of Act 54 of 1935 [Ark.Stat.Ann. § 27-1121 (Repl.1962)] require that the appellee had to assert any of her rights by a counterclaim in the previous action in answer to appellant's complaint. Therefore, by not so doing, the present action is barred by this statute. We cannot agree with the appellant that this statute is applicable or controlling in the case at bar. The dismissal of a cause of action without prejudice permits the bringing of a subsequent action for the same cause. Ark.Stat.Ann. § 37-222 (Repl.1962); Campbell v. Coldstream Fisheries, Inc., 230 Ark. 284, 322 S.W.2d 79; 27 C.J.S. Dismissal & Nonsuit §§ 72-73, p. 471.
In the case at bar the dismissal without prejudice occurred during the pendency of the motion to quash and before the time had expired for the appellee to answer or counterclaim. There was no adjudication on any issue in the Franklin County Circuit Court action and consequently it cannot be said to be res judicata. Appellee's right of action is not barred in the instant case.
Appellant next contends that the evidence is insufficient to support the verdict. Upon this point the appellant succinctly states that: 'The only issue actually in controversy was the question of the direction in which the two drivers were going at the time of the collision.' Appellant contends and presented evidence that Miller was driving westward and Mrs. Oliver was...
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Grigsby v. State
...A DEPUTY SHERIFF. The two points are considered together because they are argued jointly by appellant, who relies upon Oliver v. Miller, 239 Ark. 1043, 396 S.W.2d 288. The gist of appellant's argument is that the evidence admitted was too remote to be relevant and that the evidence was prej......
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Drope v. Owens, 88-174
...verdict. Mallett v. Brannon, supra; Arkansas Louisiana Gas Co. v. Wood, 240 Ark. 948, 403 S.W.2d 54 (1966); and Oliver v. Miller, 239 Ark. 1043, 396 S.W.2d 288 (1965). Accordingly, we do not believe the trial court abused his discretion in denying appellant's motion for a new trial, and we ......
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Farm Service Co-op., Inc. v. Goshen Farms, Inc.
...it might find to be well brought. The present action was permissible under Ark.Stat.Ann. § 37-222 (Repl.1962); Oliver v. Miller, 239 Ark. 1043, 396 S.W.2d 288; Campbell v. Coldstream Fisheries, 230 Ark. 284, 322 S.W.2d 79. Until it is concluded, there is no basis for a cause of action again......
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Scroggins v. McGee
...of a cause of action without prejudice permits the bringing of a subsequent action for the same cause". Oliver v. Miller, 239 Ark. 1043, 1044, 396 S.W.2d 288, 289 (1965) (emphasis added). The Eighth Circuit has noted that the Arkansas savings statute "allows a party to file a new complaint ......