Cole v. First Nat. Bank of Ft. Smith

22 Citing cases

  1. McCue v. Dominguez

    2022 Ark. App. 332 (Ark. Ct. App. 2022)   Cited 2 times

    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 trial court'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.

  2. Harden v. Beck

    2021 Ark. App. 481 (Ark. Ct. App. 2021)   Cited 2 times

    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).

  3. White v. Owen

    2021 Ark. 31 (Ark. 2021)   Cited 7 times

    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.

  4. Thomas v. Robinson

    2020 Ark. App. 103 (Ark. Ct. App. 2020)   Cited 2 times

    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.

  5. 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.

  6. 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.

  7. 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.

  8. Wright v. Viele

    2013 Ark. App. 471 (Ark. Ct. App. 2013)   Cited 8 times

    In the motion, appellees argued that the Wrights failed to obtain proper service in the 1990–91 case. Lack of service makes a default judgment void. Cole v. First Nat'l Bank, 304 Ark. 26, 800 S.W.2d 412 (1990). Therefore, our review of the circuit court's order is de novo.

  9. Pulaski Choice, L.L.C. v. 2735 Villa Creek, L.P.

    2010 Ark. App. 450 (Ark. Ct. App. 2010)   Cited 3 times

    Lack of service makes a default judgment void. Cole v. First Nat'l Bank of Fort Smith, 304 Ark. 26, 800 S.W.2d 412 (1990). Therefore, we will review the trial court's order de novo.

  10. 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.