Tommy Mashaw v. Dr. James J. Trusell

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION I

CA 01-191

October 31, 2001

TOMMY MASHAW APPEAL FROM SEBASTIAN COUNTY

APPELLANT CIRCUIT COURT, FORT SMITH DISTRICT

VS.

HONORABLE JAMES R. MARSCHEWSKI,

CIRCUIT JUDGE

DR. JAMES J. TRUSELL

APPELLEE AFFIRMED

This tort action was originally filed by the appellant on December 18, 1998. On April 29, 1999, appellant took a voluntary nonsuit. The case was refiled on April 24, 2000, and the summons and complaint were served upon the appellee some 125 days later.

The trial court dismissed the appellant's complaint based on Ark. R. Civ. P. 4(i) which provides that if service of summons is not made on a defendant within 120 days after the filing of the complaint, the action shall be dismissed.1 (Emphasis added.) Arkansas Code Annotated section 16-58-134 (Supp. 1999) covers the same topic but provides that, if service has not been made within 120 days from the filing of the complaint, the action may be dismissed. (Emphasis added.) In Lyons v. Forrest City Machine Works, Inc., 301 Ark. 59, 785 S.W.2d 220 (1990), the supreme court held that the rule of civil procedure, adopted by the court, takes precedence over the statute and controls.2

On appeal here, appellant argues that the decision by the trial court was decided on a technicality and was harsh, that we should follow the holdings of the federal courts, and that Rule 4(i) conflicts with the public policy adopted by the legisla ture. But the core of appellant's argument is that, for those reasons and others, Lyons v. Forrest City Machine Works should be reconsidered and overruled. This we lack authority to do. Breckenridge v. Ashley, 55 Ark. App. 242, 934 S.W.2d 536 (1996).

Affirmed.

Stroud, C.J., and Hart, J., agree.

1 See also Kangas v. Neely, ____ Ark. ____, ____ S.W.2d ____ (October 25, 2001).

2 For a history of the problem generally and a discussion of the implicated policy considerations see Gitelman and Watkins, No Requiem for Ricarte: Separation of Powers, the Rules of Evidence, and the Rules of Civil Procedure, 1991 Ark. L. Notes 27.