dissenting. This appeal should be dismissed under Ark. R. Civ. P. 54(b). The majority mistakenly concludes that the amended complaint eliminated all references to the John Doe defendants and the case proceeded to trial with no claims asserted against the John Does. The amended complaint was not designated an “amended and substituted” complaint, and it retained the two John Doe defendants in the style of the complaint. Therefore, it is not clear whether the claims asserted in the original complaint, including the claims asserted against the John Doe defendants, were still pending at the time of trial. Likewise, the pleadings do not support the majority’s conclusion that all claims against the John Doe defendants were abandoned before the commencement of the trial.
Recently, in Shackelford v. Arkansas Power & Light Co., 334 Ark. 634, 976 S.W.2d 950 (1998), we concluded that claims against two John Doe defendants were still pending, and that there was no final order as to the two unknown defendants or a Rule 54(b) certification. We therefore held that this court did not have jurisdiction to hear the case, and we dismissed the appeal without prejudice so that the trial court could enter a final order as to the remaining defendants, John Doe 1 and 2. Id. Similarly, this case still has pending claims against John Doe 1 and 2, and there is no final order as to the two John Doe defendants or a Rule 54(b) certification. The majority’s opinion ignores the plain language of Rule 54(b) that provides:
Absent the executed certificate required by paragraph (1) of this subdivision, any judgment, order, or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the judgment, order, or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all of the parties.
Ark. R. Civ. P. 54(b)(2) (2001). The majority’s opinion also, sub silentio, overrules Shackelford v. Arkansas Power & Light Co., supra. Furthermore, the majority incorrectly holds that service on John Doe defendants must be obtained before the conclusion of the litigation under Ark. R. Civ. P. 4(f) (2001). Rule 4(f) provides for service by warning order upon a defendant whose identity or whereabouts remains unknown. However, the last sentence in Rule 4(f)(1) expressly states: “This subsection shall not apply to actions against unknown tort-feasors.” Ark. R. Civ. P. 4(f)(1) (2001). Thus, Rule 4(f) does not require service by warning order upon the unknown tortfeasors in the instant case. As the majority points out, there is no time limit for service on John Doe defendants. After Rule 4(i) establishes the 120-day time limit in which defendants must be served after the filing of the complaint, the last sentence of that subsection states: “This paragraph shall not apply . . . to complaints filed against unknown tortfeasors.” Ark. R. Civ. P. 4(i) (2001). Rule 4 of the Arkansas Rules of Civil Procedure simply sets no deadline for serving an unknown tortfeasor.
Based upon the plain language of our rules of civil procedure and our decision in Shackelford v. Arkansas Power & Light Co., supra, we do not have jurisdiction to hear this case and should dismiss this appeal without prejudice so that the trial court may enter a final order as to the remaining defendants, John Doe 1 and 2.
I respectfully dissent.