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
How later courts described this case
- 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
- holding that in Lyons I, the plaintiff had completed service for purposes of the savings statute
- “[T]o invoke the saving statute, a plaintiff need only file his or her complaint within the statute of limitations and complete timely service on a defendant. A court’s later ruling finding that completed service [is] invalid does not disinherit the plaintiff from the benefit of the saving statute.”
- affirming application of savings statute where case was dismissed based on improper service
Written by the judges who cited it.
The opinion
Robert L. Brown, Justice, concurring. This case in part concerns itself with an issue laid to rest by Green v. Wiggins, 304 Ark. 484 , 803 S.W.2d 536 (1991). The issue is when is a cause of action commenced for purposes of the savings statute. We held in Green that simply filing a complaint did not commence an action for savings statute purposes, even though Ark. R. Civ. P. 3 does not exempt savings statute matters from its general pronouncement.
I agree with the opinion in this case but write to emphasize the point that filing a complaint under Rule 3 does not by itself determine commencement for purposes of limitation of actions or the savings statute. Service of process under Rule 4(i) must at least be attempted in order for commencement to occur and to toll the 120-day requirement for service. A strict reading of our Rule 3 might indicate otherwise.