Astorga v. Ishimatsu
| Decision Date | 06 February 1961 |
| Docket Number | No. 4312,4312 |
| Parties | Santiago ASTORGA, Appellant, v. I. K. ISHIMATSU dba I. K. I. Farms, Respondent. |
| Court | Nevada Supreme Court |
Morse & Graves and Lee R. Rose, Las Vegas, for appellant.
Hawkins & Cannon, Las Vegas, for respondent.
On January 15, 1952 appellant herein commenced an action against respondent in Clark County, Nevada, seeking a money judgment against respondent. On December 22, 1959 respondent moved to dismiss said action, pursuant to the provisions of NRCP 41(e), relating to the dismissal of actions for non-prosecution, which provides in part, 'Any action * * * shall be dismissed by the court * * * on motion of the defendant * * * or by the court upon its own motion, unless such action is brought to trial within five years after the plaintiff has filed his action, except where the parties have stipulated in writing that the time may be extended.'
After hearing upon defendant's motion to dismiss, the court entered its order granting the same, and this appeal is from that order granting respondent's motion to dismiss.
Appellant concedes that the action was not brought to trial within fave years after the same had been filed, and that the parties to the action had not stipulated in writing that such time be extended, and urges upon appeal that respondent's special appearance, coupled with the motion to dismiss, constituted a general appearance by respondent and a waiver of respondent's right to a dismissal.
We do not agree with appellant's contention. Appellant, while recognizing that respondent's motion was designated a special appearance, and that it contained language to the effect that the appearance was entered for the sole purpose of making the motion to dismiss on the indicated ground, cites authorities to the effect that the character of the relief sought by respondent had the legal effect of causing respondent's appearance to be a general rather than a special appearance. The authorities cited by respondent, however, involve situations substantially at variance from those of the instant situation. Here the only relief sought by respondent was that made mandatory upon the court, upon the motion for such relief being made by respondent and the showing in connection therewith that the action had not been brought to trial within five years after the filing of the same, and that the parties had not stipulated in writing for an extension of the time.
In moving for dismissal, respo...
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...sister state. See, e.g., El Ranco, Inc. v. New York Meat & Prov., 88 Nev. 111, 113, 493 P.2d 1318, 1320 (1972); Astorga v. Ishimatsu, 77 Nev. 30, 32, 359 P.2d 83, 84 (1961); Harris v. Harris, 65 Nev. 342, 346, 196 P.2d 402, 404 The California Supreme Court, in Davis v. Hearst, 160 Cal. 143,......
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...construction given to Civil Code section 1714.9 by the California courts at the time NRS 41.139 was enacted. See Astorga v. Ishimatsu, 77 Nev. 30, 32, 359 P.2d 83, 84 (1961). At the time NRS 41.139 was enacted, the California courts had clearly interpreted Civil Code section 1714.9 to suppl......
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