Prostack v. Lowden, 11946
| Decision Date | 28 February 1980 |
| Docket Number | No. 11946,11946 |
| Citation | 96 Nev. 230,606 P.2d 1099 |
| Parties | Richard C. PROSTACK, Individually, and Richard C. Prostack, d/b/a R. C. Prostack & Associates, Appellants, v. Paul LOWDEN, an Individual, and Hacienda Hotel & Casino, Respondents. |
| Court | Nevada Supreme Court |
Appellants' complaint was dismissed by the district court under NRCP 41(e) for failure to bring the action to trial within five years. We affirm.
Appellants' complaint, seeking damages for breach of an oral contract, was filed on February 21, 1974. On August 29, 1978, appellants moved for an early trial date, on the ground that the five year limitation of NRCP 41(e) would run on February 20, 1979. The trial was set for January 15, 1979, and discovery proceeded. On January 5, 1979, appellants indicated to respondents that a hitherto unknown witness would testify at trial. On January 10, 1979, respondents moved to vacate the trial date and continue the matter in order to depose the new witness; appellants did not oppose the motion and the court reset the trial for April 9, 1979. The motion and the order entered granting it made no mention of the five year limitation, and neither party brought it to the attention of the court. On March 13, 1979, respondents moved for mandatory dismissal under NRCP 41(e) on the ground that the five years had expired; appellants opposed the motion, contending that respondents had stipulated to the extension of the five year period in stipulating to the additional time for discovery. The district court ruled that after the five years had elapsed from the filing of the complaint, in the absence of a written stipulation, dismissal was mandatory, and ordered the complaint dismissed. This appeal ensued.
Our previous decisions construing NRCP 41(e) clearly indicate that mandatory dismissal for failure to bring an action to trial within five years from the filing of the complaint can be avoided only by a written stipulation between the parties extending the time. Johnson v. Harber, 94 Nev. 524, 582 P.2d 800 (1978). We do not quarrel with appellants' contention that an oral stipulation, entered into in open court, approved by the judge, and spread upon the minutes, is the equivalent of a written stipulation for the purposes of this rule. Indeed, in Thran v. District Court, 79 Nev. 176, 181, 380 P.2d 297, 300 (1963), we held only that "(w)...
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Carstarphen v. Milsner
...the complaint “except where the parties have stipulated in writing that the time may be extended”); see also Prostack v. Lowden, 96 Nev. 230, 231, 606 P.2d 1099, 1099–1100 (1980) (recognizing that “an oral stipulation, entered into in open court, approved by the judge, and spread upon the m......
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IN THE MATTER OF HARRISON LIVING TRUST
...256 Mich.App. 443, 666 N.W.2d 282, 287 (2003) (applying plain meaning rule to statutory construction). 15. Prostack v. Lowden, 96 Nev. 230, 231, 606 P.2d 1099, 1100 (1980). 16. McDaniel, 478 S.E.2d at 870 (stating that whether a Rule 60(b)(4) motion is brought within a reasonable time "is a......
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Maduka v. Eighth Judicial Dist. Court of Nev.
...in the district court's February 2, 2010, minutes, validly extended the NRCP 41(e) period until July 12, 2010. See Prostack v. Lowden 96 Nev. 230, 231, 606 P.3d 1099, 1099–1100 (1980) (recognizing that “an oral stipulation, entered into in open court, approved by the judge, and spread upon ......
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BR Constr., LLC v. Ninth Judicial Dist. Court of State
...98 Nev. 5, 5-6, 638 P.2d 404, 404 (1982) (holding that court-ordered stays extend the five-year period); Prostack v. Lowden, 96 Nev. 230, 231, 606 P.2d 1099, 1099-1100 (1980) (explaining that a stipulation must expressly extend the five-year deadline; a stipulation to continue the trial dat......