 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Moore v. Sneed8/25/1992
The opinion of the court was delivered by: GARRETT, Judge.
Stevie T. Moore (Appellant) sued Paul Joseph Sneed (Appellee) for personal injuries he received when Appellee, acting as a security guard, accidentally shot him on October 20, 1985. The petition was filed on August 5, 1987 (Case No. CJ-87-8724). Appellee was not served with summons until February 28, 1989. On March 20, 1989, Appellee filed a motion to dismiss the action because the summons was not served within 180 days of the filing of the petition as required by 12 O.S.Supp. 1986 § 2004 (I). On April 14, 1989, the trial court ordered the case dismissed.
Appellee sought a rehearing of the order, arguing that the order should have stated the effective date of the dismissal was February 6, 1988, 180 days after the petition was filed, rather than the date the order was entered. Appellee also filed a Motion for Certification of Interlocutory Order for Appellate Review and a Petition for Certiorari of a Certified Interlocutory Order in the Oklahoma Supreme Court, under Appeal Number 74,354.
The Supreme Court entered an order on December 14, 1990, [in appeal number 74,354] ruling that if a defendant is not served with process within 180 days of the filing of the petition, the action is considered dismissed, as a matter of law, effective on the 181st day following the filing of the petition, citing Mott v. Carlson, 786 P.2d 1247, 1250 (Okl. 1990), and 12 O.S.Supp. 1986 § 2004 (I). The Court stated further:
We further note that since the trial court entered its order herein the controlling statute has been amended. The statute, 12 O.S. 1989 Supp. § 2004 [89-2004](I), now provides that a plaintiff who has not served a defendant with process within 180 days of filing the petition shall be given the opportunity to show good cause for non-service. Because the amendment is strictly procedural in nature and does not affect substantive rights it should be given retroactive application. Trinity Broadcasting Corp. v. Leeco Oil Co., 692 P.2d 1364, 1366 (Okl. 1984). If, following such hearing it is determined that no good cause for non-service has been shown, then the dismissal by operation of law in the instant case shall be deemed to have occurred on February 5, 1988. The trial court shall proceed accordingly.
Appellee filed a petition for rehearing which was partially granted. The Court added the following underscored language to the first paragraph quoted above:
ecause the amendment is strictly procedural in nature and does not affect substantive rights, it should be given retroactive application unless plaintiff's claim is already time barred. . . . (Citation omitted) (Emphasis added).
The following paragraph was also added:
This cause is remanded to the trial court for a determination whether 12 O.S.Supp. 1989 § 2004 (I) should be applied in this case.
During the pendency of the above rulings, Appellant filed a second petition in the trial court (Case No. CJ-89-3429) on April 14, 1989, the same day the trial court dismissed the first case. The second petition makes the same factual allegations as the first petition. Appellant contends the second case was timely filed pursuant to the "savings" statute, 12 O.S. 1981 § 100 . It provides:
If any action is commenced within due time, and a judgment thereon for the plaintiff is reversed, or if the plaintiff fail in such action otherwise than upon the merits, the plaintiff, or, if he should die, and the cause of action survive, his representatives may commence a new action within one (1) year after the reversal or failure altho
Page 1 2 3 Oklahoma Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|