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eBook details

• Title: Dorothy J. Ostermueller and Ralph
• Author : Supreme Court of Missouri
• Release Date : January 21, 1993
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 58 KB

Description

On February 13, 1990, Dorothy J. Ostermueller and Ralph Ostermueller filed a petition in the Circuit Court of St. Louis County seeking damages for personal injury and loss of consortium. They alleged that on April 25, 1986, Samuel S. Potter negligently drove through an intersection and struck Mrs. Ostermueller's automobile. The Ostermuellers made three unsuccessful attempts to serve process upon Mr. Potter. On September 17, 1990, the circuit court placed the case on its dismissal docket, and on November 7, 1990, the court dismissed the case without prejudice for failure to prosecute. On May 22, 1991, within one year of the dismissal, the Ostermuellers filed a second petition alleging the same cause of action. Mr. Potter was served on June 4, 1991, more than five years after the alleged acts of negligence occurred. Mr. Potter raised a statute of limitations defense in his answer and moved for dismissal. The circuit court dismissed the second petition with prejudice, stating that the cause of action was filed outside the statute of limitations and that the one-year "savings statute," § 516.230, RSMo 1986, did not apply. The Missouri Court of Appeals, Eastern District, affirmed. This Court granted transfer to address the question of whether a plaintiff who suffers a non-suit on an initial petition may invoke the one-year savings statute, §516.230, where the initial petition was filed within the statute of limitations, but where the plaintiff failed to exercise due diligence in serving process on the defendant. Reversed and remanded. Disposition of this case is governed by the plain language of Rule 53.01, read together with Missouri's savings statute. The statute provides:

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