Ark. Code Ann. § 16-56-126 (2026)

Research References

Ark. L. Rev.

Dorothy Vaughan Goodwin, Recent Developments: The Arkansas Savings Statute Applies If There Has Been a “Timely, Completed Attempt” to Serve the Defendant, Jones v. Douglas, 69 Ark. L. Rev. 639 (2016).

U. Ark. Little Rock L.J.

Legislative Survey, Civil Procedure, 8 U. Ark. Little Rock L.J. 555.

Survey — Civil Procedure, 12 U. Ark. Little Rock L.J. 135.

Case Notes

In General.

This section does not narrow the period of limitation in the case of a nonsuit but extends the period of limitations applicable to the cause of action. Love v. Cahn, 93 Ark. 215, 124 S.W. 259 (1909); Williford v. Williford, 102 Ark. 65, 143 S.W. 132 (1912).

This section did not create a new liability, but only qualified the statute of limitations applicable to actions where a nonsuit had been filed. Partin v. Wade, 172 F.2d 50 (8th Cir. 1949).

Where action is not barred by limitations second action may be brought more than one year after nonsuit. Eades v. Joslin, 219 Ark. 688, 244 S.W.2d 623 (1951).

This section authorizes the dismissal of an action without prejudice to the right to bring another action for the same cause. Campbell v. Coldstream Fisheries, Inc., 230 Ark. 284, 322 S.W.2d 79 (1959).

The dismissal of a cause of action without prejudice permits the bringing of a subsequent action for the same cause. Oliver v. Miller, 239 Ark. 1043, 396 S.W.2d 288 (1965).

Attorneys were not negligent in failing to timely refile client's medical malpractice claim within the one-year time period allowed for refiling a claim under this section, where the law concerning timely refiling of a complaint after taking a nonsuit had not been settled. Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997).

A plaintiff may only invoke this section, Arkansas's savings statute, if the plaintiff files the complaint before the period of limitations has expired and then completes timely service on the defendant against whom the subsequent action is brought. Haynes v. Wire, No. 4:12CV00123 JLH, 2012 U.S. Dist. LEXIS 88743 (E.D. Ark. June 27, 2012).

Construction.

Section 16-57-104(a), concerning transfer of jurisdiction to proper forum, is compatible with this section, Arkansas's savings statute. Linder v. Howard, 296 Ark. 414, 757 S.W.2d 549 (1988).

The extension provided in § 16-114-204 (repealed) was not intended to apply to this section. Pugh v. St. Paul Fire & Marine Ins. Co., 317 Ark. 304, 877 S.W.2d 577 (1994).

Under Arkansas law, negligence, failure to warn, breach of warranty, and strict liability are each distinct causes of action, requiring different elements of proof; thus, the plaintiff's federal causes of action for breach of warranty, failure to warn, and strict liability were time-barred because they were not pleaded in the state products liability complaint and, therefore, were not tolled by operation of this section. Dillaha v. Yamaha Motor Corp., 23 F.3d 1376 (8th Cir. 1994).

Purpose.

It is not the purpose of the one year nonsuit statute, which tolled statute of limitations for one year, to shorten plaintiff's rights; plaintiff was not prohibited from bringing suit for damages and an injunction two years after the cause of action even though plaintiff had taken a nonsuit one year after the cause of action in a case involving same facts. Shelton v. Jack, 239 Ark. 875, 395 S.W.2d 9 (1965).

Applicability.

Subdivision (a)(1) of this section did not apply in customer's action against bank for conversion, breach of fiduciary duty, conspiracy, constructive fraud, and fraudulent concealment where the 2002 dismissal of customer's action against its sales manager remained in effect for over one year; the bank was not made a party to any valid lawsuit until 2004. Technology Partners, Inc. v. Regions Bank, 97 Ark. App. 229, 245 S.W.3d 687 (2006).

Excessive force and deliberate indifference to excessive force claims asserted against two county deputy sheriffs in their individual capacities were time-barred because they were asserted more than three years after the incident giving rise to the claims occurred. This section did not apply to toll the statute of limitations with regard to the claims because in his prior 42 U.S.C.S. § 1983 suit, which was non-suited, plaintiff did not specifically indicate that he was attempting to hold the sheriffs liable in their individual capacities and, therefore, they were deemed to have been sued in their official capacities only in that suit. Baker v. Chisom, 501 F.3d 920 (8th Cir. 2007), cert. denied, 554 U.S. 902, 128 S. Ct. 2932, 171 L. Ed. 2d 864 (2008).

Savings statute was applicable entitling the patient to refile his medical malpractice suit because his initial attempted service on the surgeon was proper; the return receipt was signed by the surgeon's secretary and the patient not only served the surgeon by certified mail, return receipt requested, restricted delivery, he further sent interrogatories certified mail, return receipt requested, restricted delivery and the secretary signed for those documents as the surgeon's agent. McCoy v. Montgomery, 370 Ark. 333, 259 S.W.3d 430 (2007).

Arkansas savings statute does not apply in workers' compensation cases. Single Source Transp. v. Kent, 99 Ark. App. 153, 258 S.W.3d 416 (2007).

While it could be considered that the employee suffered a nonsuit as required in subdivision (a)(1) of this section, the statute did not apply because it also required that the employee's slander action against the partnership be commenced within the time respectively prescribed for slander claims, which was one year, as provided in § 16-56-104(3). The employee did not allege defamation against the partnership in either his discrimination complaint, his third-party complaint, or his amended complaint. Roeben v. BG Excelsior Ltd. P'ship, 2009 Ark. App. 646, 344 S.W.3d 93 (2009).

In a case arising out of a car accident, the savings statute did not apply after the statute of limitations had run because the injured parties were not lulled into thinking that service was not required when a driver filed a response before he was served; there was a denial of an assertion that an adjuster in the case requested waiting on service while a settlement was negotiated. Filing a response to a complaint before service was perfected did not lead to service becoming unnecessary. Cagle v. Terwilliger, 2015 Ark. App. 191, 458 S.W.3d 770 (2015).

When the plaintiff passes away while prosecuting the plaintiff's claims, the real party in interest must be substituted before a nonsuit in order to take advantage of the savings statute. Garrett v. Progressive Eldercare Servs. — Saline, Inc., 2019 Ark. App. 201, 575 S.W.3d 426 (2019).

Circuit court properly dismissed an executor's lawsuit against the owners of a nursing home because the savings statute did not apply to the facts of the case; since the action abated by death before a nonsuit was taken, subsection (a) of this section was not applicable and thus subsection (b) did not apply. Subsection (b) of this section applies when the plaintiff first nonsuits the case and subsequently passes away. Garrett v. Progressive Eldercare Servs. — Saline, Inc., 2019 Ark. App. 201, 575 S.W.3d 426 (2019).

Adoption.

The one-year statute of limitations in § 9-9-216(b)(1) provides a special procedure which cannot be annulled by ARCP 41(a) or this section, which allows an action dismissed without prejudice to be refiled within one year of the dismissal. In re Martindale, 327 Ark. 685, 940 S.W.2d 491 (1997).

Appeal.

From the decision that ARCP 41(a) permitted voluntary nonsuit without prejudice after notice of appeal was filed, it follows that this section allows the appeal to be refiled within one year. Sosebee v. County Line Sch. Dist., 320 Ark. 412, 897 S.W.2d 556 (1995).

Applicability.

Where no nonsuit has been suffered, nor arrest of judgment made, nor reversal had on appeal, this statute does not apply. Hill v. Pipkins, 72 Ark. 549, 81 S.W. 1216 (1904).

This statute does not narrow the period of limitation in which an action may be brought upon a claim which is not otherwise barred by the general statute of limitations applicable to the claim; it only applies to those causes of action which would otherwise be barred before the running of one year from the time of taking a nonsuit. Mitchell v. Federal Land Bank, 206 Ark. 253, 174 S.W.2d 671 (1943), superseded by statute as stated in, Croft v. Croft, 8 Ark. App. 20, 648 S.W.2d 511 (1983).

Where plaintiff filed diversity action in federal court within limitation period against defendant who was resident of another state at the time of the accident but action was dismissed without prejudice because defendant was resident of Arkansas at the time action was filed, plaintiff could refile in state court within one year even though limitation period had run. Coleman v. Young, 256 Ark. 759, 510 S.W.2d 877 (1974).

In applying § 16-56-105 to civil rights actions under 42 U.S.C. § 1983, the circuit court will recognize decisions of the Arkansas Supreme Court regarding the applicability of this section to claims subject to the three-year limitation as it has in contexts other than civil rights litigation. Whittle v. Wiseman, 683 F.2d 1128 (8th Cir. 1982).

This section does not apply to actions under Title VII of the Civil Rights Act of 1964 since those actions are governed by a federal statute of limitations; however, the section would apply to an action under 42 U.S.C. § 1981 which guarantees equal rights. Garrison v. International Paper Co., 714 F.2d 757 (8th Cir. 1983).

Limitation period for filing objections to discharge or complaints to determine dischargeability of debts of bankrupt is set by federal statutory law and this section is not applicable to permit a refiling of a complaint dismissed without prejudice by the bankruptcy court. Davis v. Lewis, 36 B.R. 88 (E.D. Ark. 1984).

The Arkansas savings statutes, § 4-2-725 and this section, apply to actions originally filed in a foreign state if the original action was commenced within the statute of limitations specified for similar causes of action under Arkansas law. LaBarge, Inc. v. Universal Circuits, Inc., 751 F. Supp. 807 (W.D. Ark. 1990).

This section is written in the conjunctive, meaning two conditions must be met in order to fall within its language; the original action must be timely, and the plaintiff must suffer a nonsuit in that action. Follette v. Wal-Mart Stores, Inc., 47 F.3d 311 (8th Cir. 1995), cert. denied, Wal-Mart Stores v. Follette, 516 U.S. 814, 116 S. Ct. 66 (1995).

The savings statute applies only to actions governed by a general statute of limitations and not to proceedings, such as election contests, in which the right to file is limited to a very short period. McCastlain v. Elmore, 340 Ark. 365, 10 S.W.3d 835 (2000).

The statute does not apply where the original statute of limitations had not yet expired. Elzea v. Perry, 340 Ark. 588, 12 S.W.3d 213 (2000).

Burden of Proof.

Plaintiff must prove bringing of action within one year after dismissal of former action. Watkins v. Martin, 69 Ark. 311, 65 S.W. 103 (1901).

Commencement of New Action.

Service of summons on second suit after dismissal of first suit saves second suit, though it was brought before first was dismissed. Sims v. Miller, 151 Ark. 377, 236 S.W. 828 (1922).

The issuance of a summons in a transitory action within one year after nonsuit was taken and delivery thereof to the sheriff of the county of the venue is not the commencement of a new action where in the meantime the defendant had changed his residence to another state. Cherry v. Falvey, 188 Ark. 827, 68 S.W.2d 98 (1934).

Suit was barred by three year limitation period of § 16-56-105, but filing of suit within three years of cause of action, with plaintiff taking a nonsuit after the three years and bringing another action under this section was not barred. Smithey v. St. Louis S.W. Ry., 127 F. Supp. 210 (E.D. Ark. 1955), aff'd, 237 F.2d 637 (8th Cir. Ark. 1956).

This section permitted the filing of a claim in a state court more than one year after a “nonsuit suffered” in federal court was affirmed, and rehearing denied, by the United States Circuit Court of Appeals but less than one year after certiorari was denied in the case by the U.S. Supreme Court. Lubin v. Crittenden Mem. Hosp., 288 Ark. 370, 705 S.W.2d 872 (1986).

Because the plaintiff failed to meet the service requirements contemplated or specifically provided for in ARCP 3 and 4(i), he also failed to commence the action so as to effectuate the one-year savings provision provided in this section. Green v. Wiggins, 304 Ark. 484, 803 S.W.2d 536 (1991).

Second complaint held timely. Brown v. Saint Paul Mercury Ins. Co., 308 Ark. 361, 823 S.W.2d 908 (1992).

Under ARCP 3, an action is commenced by the filing of a complaint with the clerk of the proper court, and the establishment of venue and the tolling of a statute of limitations is based on the date the complaint is filed; however, the commencement date is subject to the plaintiff completing service within 120 days from the date of filing of the complaint, unless the time for service has been extended by the court under ARCP 4(i). Forrest City Mach. Works, Inc. v. Lyons, 315 Ark. 173, 866 S.W.2d 372 (1993).

This section allows a party to file a new complaint within one year of a nonsuit as long as the cause of action is the same in substance as the original complaint at the time the latter was nonsuited. Dillaha v. Yamaha Motor Corp., 23 F.3d 1376 (8th Cir. 1994).

Court erred in awarding judgment to plaintiff in his breach of contract action against defendant because plaintiff's earlier failure to comply with the service requirements of Ark. R. Civ. P. 4(i) resulted in a failure to commence the action so as to effectuate the one-year savings provision provided in this section; hence, the action was barred by the five-year statute of limitations in § 16-56-111(a)Long v. Bonds, 89 Ark. App. 111, 200 S.W.3d 922 (Jan. 5, 2005).

Easement owner's pro se petition to enjoin the landowner from interfering with her purported easement was properly dismissed where a new case number was not assigned to the petition after the initial case was nonsuited, as required by Ark. R. Civ. P. 3. Burnham v. Price, 2018 Ark. App. 410, 558 S.W.3d 402 (2018).

Ark. R. Civ. P. 3(c), as amended in 2011, effectively overrules Tucker v. Sullivant, 2010 Ark. 170. Burnham v. Price, 2018 Ark. App. 410, 558 S.W.3d 402 (2018).

Complaint Amended.

Amended complaint on second suit was held sufficient as against demurrer where the amended complaint showed the bringing of the original suit in the same court, identified by date and docket number, the taking of a nonsuit at a specified date, and the commencement of a new action within the period set out in this section. Partin v. Wade, 172 F.2d 50 (8th Cir. 1949).

Where complaint in second action made same mistake in description and date as that contained in first action, the action was permitted even though plaintiff was permitted to amend complaint in second action by correcting description and date. Cummings v. Greif Bros. Cooperage Co., 202 F.2d 824 (8th Cir. 1953).

Following a voluntary nonsuit, the filing of an amended complaint satisfied the requirement of the savings statute, codified at subdivision (a)(1) of this section, that a new action be commenced within one year where the amended complaint was filed within the one-year period and timely service was completed as required by Ark. R. Civ. P. 4. Tucker v. Sullivant, 2010 Ark. 170, 370 S.W.3d 812 (2010).

Dismissal with Prejudice.

Where suit was dismissed with prejudice for want of prosecution, a subsequent suit for the same purpose is barred. Leach v. Cook, 211 Ark. 763, 202 S.W.2d 359 (1947).

Where suit was dismissed with prejudice for failure to prosecute, no nonsuit was suffered, and this section did not apply, plaintiff's only remedy was to appeal the original decision. Follette v. Wal-Mart Stores, Inc., 47 F.3d 311 (8th Cir. 1995), cert. denied, Wal-Mart Stores v. Follette, 516 U.S. 814, 116 S. Ct. 66 (1995).

Court rejected parents' claim that dismissal of their amended medical malpractice claim against hospital and doctor for failure to comply with the service requirements of Ark. R. Civ. P. 4 should have been without prejudice; the parents' failure to comply with the service of process requirements resulted in a failure to commence their medical malpractice action and effectuate the one-year savings provision in this section. Posey v. St. Bernard's Healthcare, Inc., 365 Ark. 154, 226 S.W.3d 757 (2006).

Dismissing with prejudice a municipality's petition challenging annexation against a landowner bank, which had requested detachment under § 14-40-2002, was not error where the municipality had not completed any service at all on the bank, and as a result, the one-year savings provision in this section did not apply. City of Tontitown v. First Sec. Bank, 2017 Ark. App. 326, 525 S.W.3d 18 (2017).

This section did not apply given that appellant's attempt at service was not valid, and the circuit court's conclusion that the attempt was not made in good faith was not clearly erroneous. Thus, the circuit court's dismissal with prejudice was affirmed. Eliasnik v. Y&S Pine Bluff, LLC, 2018 Ark. App. 138, 546 S.W.3d 497 (2018).

Patient's attempt at service by certified mail was insufficient to allow him the benefit of this section, because proof of service was lacking and the patient had no reason to believe that service was complete. No green cards were returned for three of the defendant doctors and there was no proof that the person who signed a green card for the fourth defendant doctor was the doctor's agent. McCoy v. Robertson, 2018 Ark. App. 279, 550 S.W.3d 33 (2018).

Dismissal Without Prejudice.

Where earlier order was a dismissal without prejudice, it was error for the trial judge to grant summary judgment and preclude defendant's claim on the grounds of res judicata. Magness v. McEntire, 305 Ark. 503, 808 S.W.2d 783 (1991).

Because an accident victim filed his complaint during the limitations period and served it timely, albeit imperfectly, under Ark. R. Civ. P. 4, he was entitled to the one-year grace period provided by the saving statute, subdivision (a)(1) of this section, and therefore the case was properly dismissed without prejudice, allowing him to refile. McCoy v. Bodiford, 2010 Ark. App. 152 (2010).

Unbeknownst to plaintiffs, the addressee was not the registered agent for the company; the appellate court believed that the Arkansas Supreme Court would hold that plaintiffs completed service on the company and that their action had thus commenced for purposes of this section. The appellate court concluded that the action had commenced for purposes of this section and that, had the action remained in state court, the claims against the company would have been dismissed without prejudice; thus, at a minimum, the district court should have dismissed plaintiffs' claims against the company without prejudice. Barner v. Thompson/Center Arms Co., 796 F.3d 897 (8th Cir. 2015).

Circuit court erred in dismissing buyers' action with prejudice because they were entitled to the benefit of this section since they made a timely, completed attempt to serve sellers; the summonses and complaints were mailed to the sellers at their last known address, and when the envelopes containing the complaints and summonses were returned to the buyers' attorney, they were marked with a postal service stamp that contained several options for delivery and were marked “refused.” Jones v. Douglas, 2016 Ark. 166, 489 S.W.3d 648 (2016).

Circuit court's decision to dismiss a complaint without prejudice, rather than with prejudice, was affirmed where an injured driver and her husband timely filed their complaint and served the driver who rear-ended the car behind them via warning order, but on appeal of the default judgment entered against that driver, the service was held imperfect under Ark. R. Civ. P. 4 due to the insufficiency of the diligent-inquiry affidavit. Under case law, the injured driver and her husband, who filed their case during the limitations period and served it promptly but imperfectly, deserved the grace period provided by this section (the “savings” statute) to refile their case and serve it properly. Thomas v. Robinson, 2020 Ark. App. 103 (2020).

Entitlement to Privilege.

It was error to dismiss the second action for failure to pay costs in former action. Turrentine v. St. Louis S.W. Ry., 96 Ark. 181, 131 S.W. 337 (1910).

A grantee being in privity of estate may bring a new action within the time specified. Dressler v. Carpenter, 107 Ark. 353, 155 S.W. 108 (1913).

The plaintiff brought an action and took a nonsuit, the cause being dismissed without prejudice. It was held that the plaintiff could bring a suit upon the same cause of action if he acted within the period of limitation. Forschler v. Cash, 128 Ark. 492, 194 S.W. 1029 (1917).

Successful plaintiff in justice court may take nonsuit on appeal to circuit court and bring another action. Biddle v. Missouri Pac. R.R., 160 Ark. 323, 254 S.W. 666 (1923).

After plaintiff takes nonsuit of crossaction for breach of warranty, he may sue defendent's estate for the breach within a year of such nonsuit. Fox v. Pinson, 182 Ark. 936, 34 S.W.2d 459, 74 A.L.R. 583 (1930).

Dismissal because of defect in complaint amounted to a nonsuit without prejudice and plaintiffs were entitled to bring a suit on the same cause of action within one year from the dismissal. Norm Co. v. Harris, 197 Ark. 124, 122 S.W.2d 532 (1938).

A new suit can be brought by a plaintiff who, from causes that are incident to the administration of the law, was compelled to abandon an action, regardless of whether it was by his own act or by the act of the court, if either would leave a cause of action undetermined. Cowan v. Patrick, 247 Ark. 886, 448 S.W.2d 336 (1969).

Where trial court erred in finding that proper service had been made on defendant and entered default judgment against defendant, it would be unfair to expect the plaintiff not to rely on this finding and believe that its action was timely commenced, and plaintiff should therefore not be barred by statute of limitations where default judgment was set aside five years later. Cole v. First Nat'l Bank, 304 Ark. 26, 800 S.W.2d 412 (1990).

Because this savings statute protected those who in good faith filed and timely served an action who would otherwise suffer a complete loss of relief on the merits due to a procedural defect, plaintiff's complaint was timely filed, and despite service being defective, the action was commenced for purposes of the savings statute. Rettig v. Ballard, 2009 Ark. 629, 362 S.W.3d 260 (2009).

Good Faith.

A medical malpractice action was timely under the savings statute where the plaintiff first commenced an action against the defendant in federal district court in Arizona, but that action was dismissed for lack of personal jurisdiction, and less than a year later, she brought the same claim in federal district court in Arkansas; the plaintiff wanted her case to be heard and adjudicated in Arizona, and the fact that her selection of Arizona as a forum may have turned out to have been erroneous was not a sufficient basis for a conclusion that she did not act in good faith. Chandler v. Roy, 272 F.3d 1057 (8th Cir. 2001).

Nonsuit.

To suffer a nonsuit it is not necessary that a suitor actually ask for and be granted a nonsuit in the trial court. Wheeler v. Wallingsford, 229 Ark. 576, 317 S.W.2d 153 (1958).

When a nonsuit is taken, the procedure which was adopted in that action has no bearing on a subsequent action. Campbell v. Coldstream Fisheries, Inc., 230 Ark. 284, 322 S.W.2d 79 (1959).

For the purposes of this section, a dismissal of a complaint on defendant's motion is the same as a nonsuit. Carton v. Missouri Pac. R.R., 295 Ark. 126, 747 S.W.2d 93 (1988); West v. G.D. Searle & Co., 317 Ark. 525, 879 S.W.2d 412 (1994).

The day on which a nonsuit is taken should be excluded from computation. Hodge v. Wal-Mart Stores, Inc., 297 Ark. 1, 759 S.W.2d 203 (1988).

This section could not save the wrongful-death claims of the children where the children were not parties to the first action that ended in a nonsuit. Murrell v. Springdale Mem. Hosp., 330 Ark. 121, 952 S.W.2d 153 (1997).

Where no nonsuit was effectively granted because no order granting the nonsuit was entered, the one-year savings statute was never activated. Blaylock v. Shearson Lehman Bros., 330 Ark. 620, 954 S.W.2d 939 (1997).

A nonsuit is not effective on the filing date; a court order is necessary to grant a nonsuit and the judgment or decree must be entered to be effective. Blaylock v. Shearson Lehman Bros., 330 Ark. 620, 954 S.W.2d 939 (1997).

The right to nonsuit prior to the submission of the case to the jury is absolute; a nonsuit has the effect of an absolute withdrawal of the claim and carries with it all the pleadings and all issues with respect to a plaintiff's claim. Tribco Mfg. Co. v. People's Bank of Imboden, 67 Ark. App. 268, 998 S.W.2d 756 (1999).

When buyer of property nonsuited his complaint against seller for breach of contract, the matter could not be subsequently litigated as it was barred by res judicata; claim should have been brought when foreclosure action was brought by seller. Pentz v. Romine, 75 Ark. App. 274, 57 S.W.3d 235 (2001).

Suit by the administrator of decedent's estate for wrongful death resulting from alleged medical malpractice was time-barred because it had not been filed within two years of the decedent's death as required by § 16-114-203; although the suit had been filed within one year of the date on which a previous suit against the same healthcare providers, filed by the decedent's heirs, had been non-suited, the estate had not been a party to the first action and could not, therefore, rely on the saving provision contained in this section to overcome the running of the statute of limitations. Tatus v. Hayes, 79 Ark. App. 371, 88 S.W.3d 864 (2002).

Dismissal of the patient's medical malpractice claim was appropriate because it was untimely under § 16-56-126(a)(1) since Ark. R. Civ. P. 41(a)(1) stated that the one-year period began when the circuit court entered an order granting the non-suit; additionally, Ark. R. Civ. P. 58 did not require courts to notify parties of the entry of an order of judgment. The patient also offered no proof that the hospital's attorney defrauded her or intended to defraud her in any way when he told her that the signing date was the date from which the statute would run. Collins v. St. Vincent, 98 Ark. App. 190, 253 S.W.3d 26, cert. denied, 552 U.S. 902, 128 S. Ct. 233, 169 L. Ed. 2d 174 (2007).

Appellee's counterclaim for quiet title was not barred by subdivision (a)(1) of this section as a prior court did not treat appellee's affirmative defense of adverse possession as a counterclaim under § 18-61-101(a), and the nonsuit of the prior action did not affect the statute of limitations, which had not begun to run on the quiet title claim as appellee was still in possession of the property. Sutton v. Gardner, 2011 Ark. App. 737, 387 S.W.3d 185 (2011).

Savings statute did not give an estate administrator a year to file a wrongful death suit following the Workers' Compensation Commission's dismissal of a workers' compensation claim, as the Commission's decision was not a “nonsuit”; the Commission denied the claim on the merits. Frisby v. Milbank Mfg. Co., 688 F.3d 540 (8th Cir. 2012).

Motion to dismiss an appeal for lack of jurisdiction was denied where three unlitigated claims had been nonsuited, they were not re-filed within one year under this section, and the statute of limitations for the claims had expired; thus, the claims were no longer a bar to finality. Stodola v. Lynch, 2017 Ark. 181, 519 S.W.3d 677 (2017).

School district's appeal of a jury award in favor of a teacher on a breach of contract claim was dismissed for lack of a final, appealable order where the jury award did not resolve all of the claims, the teacher had taken a voluntary nonsuit of the two remaining claims, the claims had not been dismissed with prejudice, and the one-year time period for refiling the claims under this section had not expired. Prescott Sch. Dist. v. Steed, 2017 Ark. App. 533 (2017).

In an action brought by a commercial landlord against two tenants for unpaid rent and property damage, a final appealable order was lacking after a default judgment was granted against tenant #1, partial summary judgment was entered against tenant #2 on the unpaid rent claim, and the landlord took a voluntary nonsuit without prejudice of “all pending but unresolved” claims. The partial summary judgment on the unpaid rent claim was subject to reconsideration and even revision before the final resolution of the case and it could not be considered a “pending but unresolved” claim that was dismissed by the voluntary nonsuit; in addition, the landlord could refile its claim for property damage against tenant #2 after the voluntary nonsuit. A Time for You v. Park H Props., LLC, 2019 Ark. App. 282 (2019).

Pleading.

Allegations in previous case regarding court jurisdiction is of no consequence in a subsequent case, because before a court can assume jurisdiction there must be something in the present pleadings giving that court jurisdiction. Campbell v. Coldstream Fisheries, Inc., 230 Ark. 284, 322 S.W.2d 79 (1959).

Substitution.

In a claim brought against the suppliers of a pain pump, a dismissal was proper because a wife, as a patient's administratrix, did not seek substitution under Fed. R. Civ. P. 25 prior to a nonsuit of the case when it was pending in federal court. Therefore, the patient and his wife did not receive the benefit of this section. Wilson v. Lincare, Inc., 103 Ark. App. 329, 288 S.W.3d 708 (2008).

Suit Barred.

Evidence sufficient to bar second suit. Yates v. Phillips, 180 Ark. 709, 22 S.W.2d 559 (1929); Thompson v. Pulaski-Lonoke Drainage Dist., 192 Ark. 1178, 90 S.W.2d 237 (1936); Young v. Garrett, 212 Ark. 693, 208 S.W.2d 189 (1948), cert. denied, 335 U.S. 814, 69 S. Ct. 31 (1948), rehearing denied, J. H. Allison & Co. v. NLRB, 335 U.S. 905, 69 S. Ct. 404, 93 L. Ed. 439 (1949); Casey v. Burdine, 214 Ark. 680, 217 S.W.2d 613 (1949); Wheeler v. Wallingsford, 229 Ark. 576, 317 S.W.2d 153 (1958); Taylor v. Goodwin, 237 Ark. 121, 371 S.W.2d 617 (1963); Nelson v. Wakefield, 282 Ark. 285, 668 S.W.2d 29 (1984).

Where plaintiff filed a medical malpractice action on March 4, 1994, two days short of the two-year statute of limitations under § 16-114-203(a), and had until July 2, 1994, to complete service of process pursuant to ARCP 4(1), requested another 120 days on June 23, 1994, and was granted a 30-day extension on July 28, 1994, and where plaintiff, after failing to obtain service, requested a nonsuit on August 18, 1994, which was granted on September 14, 1994, the claim refiled on August 11, 1995, had not invoked this section's one-year savings provision and was barred by the statute of limitations. Thomson v. Zufari, 325 Ark. 208, 924 S.W.2d 796 (1996).

When a decedent's heirs nonsuited their wrongful death claim, the claim could not be refiled after expiration of the applicable statute of limitations, by the administratrix of the decedent's estate, even though she was one of the heirs who filed the wrongful death claim, as this section only allowed a claim to be refiled after nonsuit by the same parties who filed the original action. Smith v. St. Paul Fire & Marine Ins. Co., 76 Ark. App. 264, 64 S.W.3d 764 (2001).

Where a wrongful-death complaint was not in compliance with § 16-62-102 and the statute of limitations had run, barring heirs from commencing a wrongful-death action against a doctor, the wife of the deceased was also barred from pursuing a separate claim for loss of consortium, which was derivative to wrongful-death action. Sanderson v. McCollum, 82 Ark. App. 111, 112 S.W.3d 363 (2003).

Where heirs were not plaintiffs to their mother's first wrongful-death complaint, they could not benefit from the application of the savings statute where, at the time the heirs filed their wrongful-death suit, the two-year statute of limitations had already run, barring their claim; the heirs could not ratify the first suit filed by their mother so as to have come within the savings statute because that suit had been non-suited and, therefore, there was no valid cause of action for them to have ratified. Sanderson v. McCollum, 82 Ark. App. 111, 112 S.W.3d 363 (2003).

Circuit court's dismissal of the buyer's case for failure of service of valid process was upheld where, in order to invoke the protection of the savings statute, the buyer had to timely commence the original action; the buyer's fraud claim against the car dealership was therefore time barred and the savings statute did not apply. Smith v. Sidney Moncrief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003).

Tolling Statute of Limitations.

Although an action is brought in a court without jurisdiction, yet its pendency will arrest the statute if a proper action is commenced within a year after the judgment in first suit is vacated. Little Rock, M.R. & T. Ry. v. Manees, 49 Ark. 248, 4 S.W. 778 (1887).

In order to suspend the statute of limitations the action must be properly commenced. Wilkins v. Worthen, 62 Ark. 401, 36 S.W. 21 (1896).

Where plaintiff filed a tort action against the defendant within two year period of limitations and took a nonsuit, plaintiff could maintain a second suit based on same cause of action where filed within one year of the nonsuit, though second action was filed more than two years after the occurrence of the tort. Partin v. Wade, 172 F.2d 50 (8th Cir. 1949).

When the court lacking subject matter jurisdiction has, by statute, authority to transfer the action to a court of competent jurisdiction, timely filing of the suit in the first court tolls the statute of limitations. Linder v. Howard, 296 Ark. 414, 757 S.W.2d 549 (1988).

To toll the limitations period and to 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 under ARCP 4; a court's later ruling which finds completed service invalid does not disinherit the plaintiff from the benefit of the saving statute. Forrest City Mach. Works, Inc. v. Lyons, 315 Ark. 173, 866 S.W.2d 372 (1993).

Where plaintiff filed a timely action against and completed service upon defendant in his prior lawsuit, the applicable limitations period was tolled, and he was thereby entitled to invoke this section when refiling his complaint. Forrest City Mach. Works, Inc. v. Lyons, 315 Ark. 173, 866 S.W.2d 372 (1993).

Trial court properly refused to apply the doctrine of equitable tolling to delay the running of the one-year saving statute so that wrongful death plaintiffs' fifth amended complaint could be deemed timely where their attorney was not sufficiently diligent in the seven-week period he had to rename the defendant to merit the application of the doctrine of equitable tolling. Stracener v. Williams, 84 Ark. App. 208, 137 S.W.3d 428 (2003).

Trial court erred in granting state's motion to strike appellant's motion to dismiss a forfeiture action because, after voluntarily dismissing its first forfeiture complaint for failure to complete service of process, the state neglected to toll the limitations period to invoke the one-year savings statute because it did not file the forfeiture complaint within the 120-day period required by § 5-64-505(3). Mitchell v. State, 94 Ark. App. 304, 229 S.W.3d 583 (2006).

Circuit court properly dismissed a patient's negligent treatment case against a chiropractor without prejudice to being refiled where the patient had commenced his case under Ark. R. Civ. P. 3 by completing timely, but defective, service, and thus, he was entitled to the shelter of subdivision (a)(1) of this section. Clouse v. Tu, 101 Ark. App. 260, 274 S.W.3d 344 (2008).

Because the court denied class certification under Fed. R. Civ. P. 23 in an earlier filed case on the ground that the named plaintiffs were not typical of or adequate representatives for the class, it was not a reason equally applicable to any later suit, so American Pipe applied and the statute of limitations was tolled by the prior action. Under this section, the Arkansas's savings statute, the tolling gave plaintiffs one year after certification was denied in the prior action to commence a new action and receive the full protection of the prior action, and because plaintiffs filed the instant action within that year, they received the maximum benefit of the tolling, except that they could not recover from any further back than October 1, 2006, because prior to October 1, 2006, the employer was exempt from the Arkansas Minimum Wage Act as it was subject to the minimum wage and overtime provisions of the Fair Labor Standards Act. Garner v. Butterball, LLC, No. 4:10CV01025 JLH, 2012 U.S. Dist. LEXIS 21859 (E.D. Ark. Feb. 22, 2012).

In a foreclosure case involving a construction loan, summary judgment was properly granted on the borrower's nonsuited counterclaims for negligence and interference with business expectancies, which were untimely under § 16-56-105 because they were filed more than three years after the lender refused further funding of the loan and were not saved by this section because they were filed more than two years after the voluntary nonsuit. Grand Valley Ridge, LLC v. Metro. Nat'l Bank, 2012 Ark. 121, 388 S.W.3d 24 (2012).

Cited: Robison v. Jones, 261 F.2d 584 (8th Cir. 1958); Credit Indus. Co. v. Blankinship, 230 Ark. 371, 323 S.W.2d 198 (1959); Vines v. Arkansas Power & Light Co., 232 Ark. 173, 337 S.W.2d 722 (1960); Farm Serv. Coop. v. Goshen Farms, Inc., 267 Ark. 324, 590 S.W.2d 861 (1979); Weston v. Bachman, 682 F.2d 202 (8th Cir. 1982); Blakemore v. Missouri Pac. R.R., 789 F.2d 616 (8th Cir. 1986); Ware v. Gardner, 309 Ark. 148, 827 S.W.2d 657 (1992); Goldsby v. Fairley, 309 Ark. 380, 831 S.W.2d 142 (1992); Oxford v. Perry, 340 Ark. 577, 13 S.W.3d 567 (2000); Miller v. Norris, 247 F.3d 736 (8th. Cir. 2001); Nef v. Ag Servs. of Am., Inc., 79 Ark. App. 100, 86 S.W.3d 4 (2002); Wright v. City of Little Rock, 366 Ark. 96, 233 S.W.3d 644 (2006); Recinos v. Zelk, 369 Ark. 7, 250 S.W.3d 221 (2007); Barrows v. City of Fort Smith, 2010 Ark. 73, 360 S.W.3d 117 (2010).