This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Statutes specially provide in effect in most jurisdictions that if an action is brought before limitations has expired, and is dismissed without a hearing on the merits and without the plaintiff's voluntary act, a new action may be brought within a specified time thereafter even if such time exceeds the period of limitations.1 This rule applies where the complaint in the first suit does not state a cause of action,2 or omits to state a jurisdictional fact which really exists,3 or if the first action is brought in the Federal courts and is dismissed for want of jurisdiction,4 or the original action was brought prematurely,5 or where the action is otherwise dismissed without the voluntary act of the plaintiff and without a hearing on the merits.6 The statute does not apply where the first action was dismissed voluntarily by the plaintiff,7 or by the court for want of prosecution,8 or on account of the negligence of the plaintiff.9 The statute does not prevent limitations from running if the cause of action,10 or the parties,11 are different in the second cause from those in the first.
8 Bates v. Preble, 151 U. S. 149; Campbell v. Campbell, 133 Cal. 33; 65 Pae. 134; Gibson v. Henley, 131 Cal. 6; 63 Pac. 61; Wood v. Williams, 142 111. 269; 34 Am. St. Rep. 79; 31 N. E. 681.
9 Eising v. Andrews, 66 Conn. 58; 50 Am. St. Rep. 75; 33 Atl. 585; McMullen v. Loan Association, 64 Kan. 298; 91 Am. St. Rep. 236; 56 L. R. A. 924; 67 Pac. 892.
1 Petetin v. His Creditors, 51 La. Ann. 1660; 26 So. 471.
2 Petetin v. His Creditors, 51 La. Ann. 1660; 26 So. 471.
3 Grady v. Wilson, 115 N. C. 344; 44 Am. St. Rep. 461; 20 S. E. 518.
4 Hodges v. Darden, 51 Miss. 199. 1 Myers v. First Presbyterian
Church, 11 Okla. 544; 69 Pac. 874.
2 Woodcock v. Bostic, 128 N. C. 243: 38 S. E. 881.
3 Smith v. McNeal, 109 U. S. 426