Cole v. First Nat. Bank of Ft. Smith

22 Citing cases

  1. Smith v. Sidney Moncrief Pontiac, Buick, GMC Co.

    353 Ark. 701 (Ark. 2003)   Cited 94 times
    Holding that a plaintiff must timely commence the original lawsuit for a savings statute to apply

    [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).

  2. Forrest City Mach. Works, Inc. v. Lyons

    315 Ark. 173 (Ark. 1994)   Cited 35 times
    Holding that in Lyons I, the plaintiff had completed service for purposes of the savings statute

    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.

  3. Green v. Wiggins

    304 Ark. 484 (Ark. 1991)   Cited 34 times   1 Legal Analyses
    Holding that the savings statute did not apply when the plaintiff failed to comply with Ark. R. Civ. P. 4 and thus did not commence the action

    Of course, appellant's interpretation of Rule 4(i) is correct insofar as it goes, viz., if service of summons is not made upon a defendant within 120 days after the filing of the complaint, the action shall be dismissed without prejudice. Lyons v. Forrest City Machine Works, Inc., 301 Ark. 559, 785 S.W.2d 220 (1990); see also Cole v. First Nat'l Bank, 304 Ark. 26, 800 S.W.2d 412 (1990). However, that dismissal without prejudice language does not apply if the plaintiff's action is otherwise barred by the running of a statute of limitations.

  4. Barner v. Thompson/Center Arms Co.

    796 F.3d 897 (8th Cir. 2015)   Cited 25 times
    In Barner, a federal case cited by McCoy, a return receipt was presented that showed the plaintiff had completed service, although there was a mix-up with registered agents.

    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.

  5. Clouse v. Ngau Van Tu

    101 Ark. App. 260 (Ark. Ct. App. 2008)   Cited 19 times
    In Clouse v. Tu, 101 Ark. App. 260, 274 S.W.3d 344 (2008), our court held that when a plaintiff completes timely service of the summons and complaint, his case is commenced even if it is later determined that service was defective in some manner.

    When a plaintiff files his case during the limitations period, and serves it promptly but imperfectly under Rule 4, if the limitations period has expired then he deserves the grace period provided by our saving statute to refile his case and serve it properly. Cole v. First National Bank of Fort Smith, 304 Ark. 26, 30-31, 800 S.W.2d 412, 415 (1990). If the law were otherwise, the beneficent purpose of our saving statute would be thwarted. Tu timely commenced his case pursuant to Rule 3, and thus he was entitled to a dismissal without prejudice and the shelter of the saving statute.

  6. King v. Carney

    341 Ark. 955 (Ark. 2000)   Cited 15 times
    In King v. Carney, 20 S.W.3d 341 (Ark. 2000), the Arkansas Supreme Court held that there are two requirements of Rule 4(i) in order to obtain an extension of time to serve summons: (1) the timely filing of a motion for an extension, and (2) a showing of good cause.

    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.

  7. Hicks v. Clark

    870 S.W.2d 750 (Ark. 1994)   Cited 14 times
    Holding that the plaintiff did not complete service when she made no attempt to serve the defendant within the time required by the Arkansas procedural rules

    We concluded by saying that even where a court later finds the plaintiff's timely completed service to be invalid, the plaintiff is not disinherited from benefiting from the one-year saving statute. Accord Cole v. First National Bank of Ft. Smith, 304 Ark. 26, 800 S.W.2d 412 (1990). In the present case, Hicks altogether failed to meet the requirements of Rule 4(i) and ARCP Rule 3 discussed in Lyons.

  8. State v. West

    2014 Ark. 174 (Ark. 2014)   Cited 12 times
    Discussing when the State may bring an appeal in a civil-forfeiture proceeding

    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.

  9. DWB, LLC v. D&T Pure Tr.

    2018 Ark. App. 283 (Ark. Ct. App. 2018)   Cited 11 times

    Irrespective of this, appellants contend that they had a right to rely on the finding, even if it was erroneous. SeeKing v. Carney , 341 Ark. 955, 20 S.W.3d 341 (2000) ; Cole v. First Nat'l Bank of Fort Smith , 304 Ark. 26, 800 S.W.2d 412 (1990). The cases cited by appellant are inapposite.

  10. Murphy v. Dumas

    36 S.W.3d 351 (Ark. 2001)   Cited 9 times
    In Murphy, the extension order was entered without (1) a request by the appellants; (2) notice to the appellees; (3) a hearing being held in the trial court; and (4) findings by the trial court that the extension was necessary.

    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.