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Moore v. Sneed8/25/1992
86 P.2d 1247 (Okl. 1990). The second action was not filed by February 2, 1989, and was therefore not "commenced within due time" as required by 12 O.S. 1981 § 100 . Because the 1989 amendment was not effective until November 1, 1989, the action was already time barred. Thus, under the Supreme Court order in case number 74,354, the 1989 amendment does not apply to this case.
This Court is aware of the recent case, Ross v. Kelsey Hayes, Inc., 825 P.2d 1273 (Okl. 1991), in which the Supreme Court stated that 12 O.S. 1981 § 100 may be used to extend the statute of limitations for one year from a voluntary dismissal if the plaintiff has not served a defendant in the original cause. 825 P.2d at 1276. Ross is distinguishable. The original petition was filed within the time period allowed by law and was not barred by any statute of limitations. The case did not address the issue of plaintiff's failure to serve the defendant after the 121st day or after the 181st day. Thus, Ross did not involve an action dismissed by operation of law because the summons was not served within 180 days after the case was filed. Even though the statute of limitations would have otherwise barred the action when the second petition was filed, Section 100 saved the Ross plaintiff's action upon refiling because the case was refiled within one year after the first case was dismissed.
We are also aware of the change in the Oklahoma Pleading Code, 12 O.S.Supp. 1984 § 2001 et seq., wherein an action is deemed commenced when the petition is filed (See 12 O.S.Supp. 1984 § 2003 ), rather than when the defendant is served with process (12 O.S. 1981 § 97 (Repealed)). However, we cannot overlook § 2004(I) which provides that the "action shall be deemed to have been dismissed" if service is not obtained within 180 days. (Emphasis added).
Section 100 does not apply because the second petition was not filed within one year after the first petition was deemed dismissed.
AFFIRMED.
ADAMS, P.J., and JONES, J., concur.
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