dissenting. The appellant was a minor when her cause of action arose. Her minority was extinguished on October 15,1983 and pursuant to Ark. Code Ann. § 9-25-101 and § 16-56-116 (1987), appellant had until October 15, 1986, to commence an action. Her complaint was filed one day before the running of the statute of limitations, i.e. October 14, 1986, in chancery court.
The appellant sought money damages for injuries resulting from an automobile accident, and, clearly, filing in the chancery court was improper. Moreover, a motion to transfer the case from law to equity pursuant to Ark. Code Ann. § 16-13-401 (1987), was not filed until October 30, 1986, over two weeks after the statute of limitations had expired. On February 25,1987, the case was transferred to circuit court.
On December 18, 1978, the Arkansas Supreme Court adopted the Rules of Civil Procedure (with modifications) as submitted by the Civil Procedure Revision Committee. Among the newly adopted rules was A.R.C.P. Rule 3, which provides that “a civil action is commenced by filing a complaint with the clerk of the proper court who shall note thereon the date and precise time of filing.” The Reporter’s Notes to Rule 3 clearly define ‘proper court’ as one which has jurisdiction of the subject matter and the parties described in the complaint and in which venue is proper. Therefore, in order to commence a civil suit, and thus to toll the statute of limitations, one must file with the proper court.
It is interesting to note the language of an article authored by the Reporter to the Civil Procedure Revision Committee and a committee member, commenting on Rule 3:
One can imagine a case being filed the day before the running of the statute of limitations in a court that is not the proper court, and thus the plaintiff would be held not to have complied with the statute of limitations because he failed to commence the action before the statute had run. This may cause lawyers to have second thoughts about filing questionable cases in courts of chancery or circuit courts in Arkansas where the matter of propriety may be crucial. It certainly should put an end to whatever practice there may have been of filing cases in the wrong court close to the time the statute of limitations was to run in order to get a delay beyond the expiration period of that statute.
Cox and Newbern, New Civil Procedure: The Court that Came in from the Code, 33 Ark. L. Rev. 1 (1979).
Even before the adoption of Rule 3, Arkansas case law held that the proper commencement of an action tolls the running of the statute of limitations. Erwin, Inc. v. Arkansas Louisiana Gas Co., 261 Ark. 537, 550 S.W.2d 174 (1977). So now under Rule 3 it seems clear that proper commencement means filing with the proper court, and only with “proper” commencement is the statute of limitations tolled.
Even if such a procedure were not so clear, there is another ground upon which to uphold this dismissal of the appellant’s suit by the trial court. Pursuant to Ark. Code Ann. § 16-11-302 (1987), the Supreme Court maintains exclusive power over the rules of practice and procedure in civil cases and no legislative approval is required. Therefore, it would seem that A.R.C.P. Rule 3 would take precedence over any legislatively enacted procedural rules which may conflict with Rule 3, such as Ark. Code Ann. §§ 16-57-104 and 16-13-401 (1987). These statutes can easily be read consistent with Rule 3 by reading in what was so obviously intended — that an error in the kind of proceedings requires a transfer of the action to the proper docket rather than dismissal or abatement of the action provided that the statute of limitations has not yet run. However, the majority in this case dealing with pure state common law, advocates allowing Ark. Code Ann. § 16-57-104(a) (1987) to prevail over the clear language of A.R.C.P. Rule 3.
The majority now adopts an exception to the rule in Erwin, supra, that proper commencement of an action tolls the running of the statute of limitations. The majority relies on Star-Kist Foods v. Chicago, Rock Island & Pacific Railroad Co., 586 F. Supp. 252 (N.D.Ill. 1984), which cites Herb v. Pitcarin, 324 U.S. 117 (1944), in carving out this exception. The exception basically provides that when a court lacks subject matter jurisdiction but by statute it has the authority to transfer the action to a court of competent jurisdiction, the filing of the first suit (i.e. the suit filed in a court without subject matter jurisdiction) tolls the statute of limitations. Applying the exception to the facts of this case would allow the appellant who filed in chancery court to transfer her case to the proper docket under Ark. Code Ann. § 16-57-104(a) (1987), and the statute of limitations would have been tolled by her October 14, 1986, filing.
The exception created by the court in Herb, and applied in Star-Kist, is inapplicable to the case before this court. Both Herb and Star-Kist dealt with causes of action arising from federal statutes. Star-Kist involved recovery for damages for goods in transit under the Carmack Amendment, while Herb interpreted § 6 of the Federal Employers’ Liability Act (FELA).
In Herb, the plaintiff filed in a Granite City, Illinois city court for recovery under § 6. The city court granted relief to the plaintiff, yet the appellate court reversed and remanded the case. In the meantime, the Illinois Supreme Court ruled that city courts did not have jurisdiction to hear § 6 FELA cases. The plaintiff, whose case was pending for retrial, then made a change of venue motion. This motion occurred more than two years from the day of injury. Section 6 provided that an action must be commenced within two years from the date of the injury. It seems clear that in order to protect this federally created substantive right, and not to penalize the plaintiff for the procedural delays occasioned by the subsequent Illinois Supreme Court decision, an exception to the tolling of the statute of limitations was necessary.
In the case before this court no federal cause of action exists. The case is a standard common law negligence suit. Federal law plays no part in this lawsuit, and thus the desire to protect a federal cause of action by granting an exception to state law is not present. Furthermore, the procedural facts in this case are quite unlike those in Herb.
The majority cites Phillips v. Catts, 220 Ala. 332, 124 So. 884 (1929), an Alabama case interpreting an Alabama statute similar to Ark. Code Ann. § 16-57-104(a) (1987). Alabama authority certainly has no precedential value for this court. The Alabama court determined that the Alabama legislative history behind their Code provision was to intercept the running of the statute of limitations. However, Arkansas’s legislative rationale is not quite so clear, and Arkansas rationale need not follow that of Alabama. Upon closer examination, the Alabama statute seems more limited than the majority presents. In Phillips the court stated that the Code “was to intercept the running of the statute in the event the plaintiff, misconceiving his remedy, brings action in the wrong forum.” (Emphasis added). In the case at bar, even if the Alabama rationale prevailed, there was certainly no misconception as to the plaintiff’s remedy. Unlike in Phillips where a genuine argument was asserted claiming grounds for a suit in a court of equity, no such issue was present in this case.
The case at bar seems to be precisely the situation envisioned by the Cox/Newbern commentary to A.R.C.P. Rule 3.1 believe the trial court correctly read and interpreted our holding in Erwin, Inc. v. Arkansas Louisiana Gas Co., supra, and should be affirmed.