In completing service on Forrest City Machine Works, Lyons effected the commencement date of filing his complaint for limitation purposes. Green, 304 Ark. at 488, 803 S.W.2d at 538; Cole, 304 Ark. 26, 800 S.W.2d at 414 (1990). However, as noted previously, the trial court, on Forrest City Machine Works' motion, eventually dismissed Lyons action because of improper service.
Thomas argues that because there was no service within the service period, dismissal of the complaint is mandatory, and a dismissal should be with prejudice because the statute of limitations has run. He distinguishes this case from Cole v. First National Bank of Ft. Smith , 304 Ark. 26, 800 S.W.2d 412 (1990), which the Robinsons cited to support their argument that the savings statute applies. In Cole , the Arkansas Supreme Court held that the plaintiff had completed service for purposes of the savings statute when it sent the complaint and summons by certified mail addressed to the defendant at his post office box, and the defendant’s stepdaughter accepted service and signed the return receipt.
We have applied the savings statute to cases in which service was attempted within the time allowed by Rule 4, but the case was later dismissed because service was found to be defective. See, e.g. , Rettig v. Ballard , 2009 Ark. 629, 362 S.W.3d 260 (holding that savings statute applied where service was completed timely, but the summons was defective); Smith v. Sidney Moncrief Pontiac, Buick, GMC Co. , 353 Ark. 701, 120 S.W.3d 525 (2003) (same); Lyons , supra (affirming application of savings statute where case was dismissed based on improper service); Cole v. First Nat'l Bank of Fort Smith , 304 Ark. 26, 800 S.W.2d 412 (1990) (reversing grant of default judgment due to improper service but holding that dismissal should be without prejudice because of savings statute). Owen asserts, as he did below, that the savings statute does not apply to the Whites’ action because he had disclosed his correct address prior to their attempted service on him. He contends that there is a "good faith element" for a plaintiff to obtain the benefit of the savings statute.
Rettig v. Ballard, 2009 Ark. 629, 362 S.W.3d 260 (holding that a suit was commenced within the statute of limitations when the complaint was timely filed, although timely served summonses were defective; thus, savings statute applied to permit suit within one year of dismissal). They also discuss several other Arkansas Supreme Court cases: Jones v. Douglas, 2016 Ark. 166, 489 S.W.3d 648 (holding that a timely, completed attempt to serve appellees afforded appellants the benefit of the savings statute); Forrest City Mach. Works, Inc. v. Lyons, 315 Ark. 173, 866 S.W.2d 372 (1993) (holding that improper service within 120 days of filing of the first complaint was sufficient to invoke the saving statute and toll the statute of limitations); Cole v. First Nat'l Bank of Ft. Smith, 304 Ark. 26, 800 S.W.2d 412 (1990) (holding that even though service had not been perfected, the savings statute applied).
They contend, however, that they completed service on T/C LLC such that the Arkansas savings statute applies, and thus that the district court should not have dismissed their claims against T/C LLC with prejudice. In Cole v. First National Bank of Fort Smith, 304 Ark. 26, 800 S.W.2d 412, 413–14 (1990), the Arkansas Supreme Court held that the plaintiff had completed service for purposes of the savings statute when it sent the complaint and summons by certified mail addressed to the defendant at his post office box, and the defendant's stepdaughter accepted service and signed the return receipt. Although the trial court found that service had been perfected, the Arkansas Supreme Court held that the defendant's stepdaughter was not his agent and thus that service had not been perfected.
This court has held that the same reasoning applies to service requirements imposed by court rules. Pursuant to Rule 4(i) of the Arkansas Rules of Civil Procedure, it is also mandatory that the trial court dismiss the action without prejudice if service is not made within 120 days of filing the complaint and no motion to extend is timely made. Ark. R. Civ. P. 4(i); Lyons v. Forrest City Machine Works, Inc., 301 Ark. 559, 785 S.W.2d 220 (1990) (holding service of process not proper under Rule 4(d)(5) and dismissal mandatory under Rule 4(i) where summons was addressed to F.C. Machine Works and the return showed that F.C. Machine Works was served as "the person named therein as defendant," but the appellant failed to produce any evidence to show that the plant manager, or any other proper person under Rule 4(d)(5), was served on behalf of F.C. Machine Works); see also Cole v. First Nat'l Bank of Ft. Smith, 304 Ark. 26, 800 S.W.2d 412 (1990); Lawson v. Edmondson, 302 Ark. 46, 786 S.W.2d 823 (1990). Acts for forfeiture may be based on in rem or in personam jurisdiction.
[3] Pursuant to Rule 4(i) of the Arkansas Rules of Civil Procedure, it is also mandatory for the trial court to dismiss the action without prejudice if service is not made within 120 days of filing the complaint and no motion to extend is timely made. Ark. R. Civ. P. 4(i) (2003); Lyons v. Forrest City Machine Works, Inc., 301 Ark. 559, 785 S.W.2d 220 (1990) ( Lyons I) (holding service of process not proper under rule 4(d)(5) and dismissal mandatory under Rule 4(i) where summons addressed to F.C. Machine Works and return showed that F.C. Machine Works was served as "the person named therein as defendant"); see also Raymond v. Raymond, supra.; Cole v. First Nat'l Bank of Ft. Smith, 304 Ark. 26, 800 S.W.2d 412 (1990); Lawson v. Edmondson, 302 Ark. 46, 786 S.W.2d 823 (1990). [4] Here, Smith does not dispute that the summonses were deficient under Rule 4(b).
We have held in the past that parties are entitled to rely on a trial court's order extending time even when the trial court may later vacate the order or when a judgment was erroneously entered. See King v. Carney, 341 Ark. 955, 20 S.W.3d 341(2000) (appellant entitled to rely on extension order though trial court later vacated it); see also Cole v. First Nat'l Bank of Ft. Smith, 304 Ark. 26, 800 S.W.2d 412 (1990) (plaintiff had right to rely on judge's default judgment, though erroneously entered, and savings statute applied). This principle should apply to the facts of this case.
We need not address the good-cause issue because King obtained service of process on the appellees before the extension orders were revoked. King had the right to rely on those extension orders, which, again, were in effect at the time service was obtained. See Cole v. First Nat'l Bank of Ft. Smith, 304 Ark. 26, 800 S.W.2d 412 (1990) (plaintiff had the right to rely on the judge's default judgment, though erroneously entered, and the savings statute applied). The order of dismissal with prejudice is reversed, and this matter is remanded for further proceedings.
DHS has not appealed the denial of its motion to set aside the judgment which would be the proper procedure. See generally Cole v. First Nat'l Bank, 304 Ark. 26, 800 S.W.2d 412 (1990); Lawson v. Edmondson, 302 Ark. 46, 786 S.W.2d 823 (1990). DHS simply attempts to appeal the August 31 and September 10 Orders involving litigation to which it was not a party.