dissenting.
I respectfully dissent. I have no argument with the propositions that the Soldiers’ and Sailors’ Civil Relief Act, 50 U.S. C.App., section 525, tolls statutes of limitations in causes of action by or against military personnel and that members of the military, as well as persons having claims against persons in the military, may claim the benefit of the act. My complaint is that after a lawsuit is commenced the tolling provisions should not apply to time limits on completing procedural requirements.
The time limits in § 473.083, RSMo 1986, are of two types. In one respect the statute is a statute of limitations requiring that the will contest be filed within six months after publication of letters on the decedent’s estate. Section 473.083.1. In another respect, it is service of summons statute requiring service of process on all necessary parties within ninety days after the action is commenced. Section 473.083.6. Service of summons is merely a procedural step in the prosecution of the action.
Serving summons is not “the bringing of [an] action or proceeding.” The words in the act should be construed according to their plain and ordinary meaning. Wolff Shoe Co. v. Director of Revenue, 762 S.W.2d 29, 31 (Mo. banc 1988). The tolling provisions of the Soldiers’ and Sailors’ Civil Relief Act only apply to the bringing of actions and proceedings and not to service of summons or other procedural steps required to be taken during prosecution of an action. Thornley v. Superior Court, 89 Cal.App.2d 662, 663, 201 P.2d 567, 568 (1949).
A plaintiff should not be permitted to file an action and thereafter claim the benefit of the Soldiers’ and Sailors’ Civil Relief Act when he fails to timely comply with a procedural requirement. I would hold that plaintiffs’ rights under the tolling provisions of the act are fixed when the action is filed; if he thereafter fails to timely comply with procedural requirements, he does so at his peril. I would affirm.