Beyer v. Montoya
Decision Date | 07 June 1965 |
Docket Number | No. 7591,7591 |
Citation | 75 N.M. 228,1965 NMSC 64,402 P.2d 960 |
Parties | Susan R. BEYER and Clarence B. Beyer, Plaintiffs-Appellees, v. R. T. MONTOYA and V. J. Montoya, Defendants-Appellants. |
Court | New Mexico Supreme Court |
Keleher & McLeod, Russell Moore, Albuquerque, for appellants.
Modrall, Seymour, Sperling, Roehl & Harris, Albuquerque, for appellees.
The case arises out of an intersection collision between automobiles being driven by plaintiff-appellee, Susan R. Beyer, and defendant-appellant, R. T. Montoya. Plaintiff-appellee, Clarence B. Beyer, is the husband of Susan R. Beyer and sought recovery for amounts expended by him for medical attention and other expenses resulting from the accident and injuries to his wife, as well as for loss of consortium. Defendant-Appellant, V. J. Montoya, is the father of R. T. Montoya who was a minor at the time of the accident. Also, V. J. Montoya was the owner of the car being driven by R. T. Montoya at the time of the accident, which car was maintained for use of the family of V. J. Montoya.
Appellants assert under two separate points relied on for reversal that the court erred in not finding that Mrs. Beyer was guilty of contributory negligence and thus barred from recovery, and in awarding judgment in favor of appellees because Mrs. Beyer was guilty of contributory negligence as a matter of law.
Before considering the issues presented by the two points, mentioned above, we must consider appellants' first two points which are to the effect that the court erred in refusing to dismiss the cause under Rule 41(e)(1) of the Rules of Civil Procedure (Sec. 21-1-1(41)(e)(1), N.M.S.A.1953) and in vacating and setting aside an order of dismissal entered by it and reinstating the cause on the docket. If the appellants are correct in their position on these points it will not be necessary for us to consider the other two points. However, if they are in error, we must then proceed to a discussion of the points relating to claimed contributory negligence.
The record discloses that appellees filed their complaint on September 12, 1958. On September 30, 1958 appellants filed their answer and the case has been at issue since that date. After September 30, 1958, and until February 19, 1962, when the court entered an order dismissing the cause 'without prejudice for lack of prosecution' the record does not disclose that anything was done to bring the case to final determination.
Notwithstanding the dismissal on February 19, 1962 the parties, on May 17, 1962, stipulated concerning the taking of the deposition in Tehran, Iran, of one Dr. Mohamed B. Jadeli, who had been a passenger with Mrs. Beyer when the accident took place, and was the only eye witness other than the parties to the lawsuit. The stipulation provided, among other things, 'That upon receipt of Answer to said Interrogatories said matter shall then be tried before the Court. * * *' On the date of the stipulation, counsel for appellees moved for a setting of the case on the merits, and on the same date the court entered an order stating that the matter had been 'inadvertently dismissed' and that the didmissal be set aside and the cause reinstated on the docket.
At the opening of the trial on the merits, on September 9, 1963, counsel for appellants stated, 'At this time the defendants move the court to dismiss the case with prejudice for failure to bring the case to trial within two years under the rule' to which the court replied,
Although we have been called upon to consider rule 41(e)(1) many times since its adoption, we again set it out in full:
'In any civil action or proceeding pending in any district court in this state, when it shall be made to appear to the court that the plaintiff therein or any defendant filing a cross-complaint therein has failed to take any action to bring such action or proceeding to its final determination for a period of at least two years after the filing of said action or proceeding or of such cross-complaint unless a written stipulation signed by all parties to said action or proceeding has been filed suspending or postponing final action therein beyond two years, any party to such action or proceeding may have the same dismissed with prejudice to the prosecution of any other or further action or proceeding based on the same cause of action set up in the complaint or cross-complaint by filing in such pending action or proceeding a written motion moving the dismissal thereof with prejudice.'
In Ringle Development Corporation v. Chavez, 51 N.M. 156, 159-160, 180 P.2d 790, is found the following oft-quoted language:
'Construing Rules 41(b) and 41(e) together, we hold that except where the time is tolled by statute, such as the Soldiers' and Sailors' Relief Act of 1940, Sec. 201, 50 U.S.C.A. Appendix, Sec. 521, or unless process has not been served because of inability to execute it on account of the absence of the defendant from the state, or his concealment within the state, or unless from some other good reason, the plaintiff is unable, for causes beyond his control, to bring the case to trial, the provision for dismissal is mandatory.'
We do not recede from what was there said. This court has recently interpreted 'mandatory dismissal' to mean that dismissal is mandatory only when a written motion under rule 41(e) is filed before plaintiff takes action toward final disposition, even if that action is taken after the two-year period has expired. Martin v. Leonard Motor Co., June 1, 1965, 75 N.M. 219, 402 P.2d 954. Defendant in this case did not make any motion to dismiss, either oral or written, before the trial setting was obtained by the plaintiff. The oral motion made at the outset of the trial was neither timely nor proper. Accordingly, its denial was correct.
Appellants also contend that the trial court erred in setting aside its previous dismissal without prejudice and reinstating the case on the docket. Appellants must fail in this argument for two reasons. First, no such contention was ever presented to the trial court, and, accordingly, cannot be here asserted for the first time on appeal without having afforded the trial court on opportunity to rule on it. Pankey v. Hot Springs Nat. Bank, 46 N.M. 10, 119 P.2d 636; Hendricks v. Hendricks, 55 N.M. 51, 226 P.2d 464. Secondly, and more important, the dismissal order was entered pursuant to the trial court's inherent powers, City of Roswell v. Holmes, 44 N.M. 1, 96 P.2d 701; Baker v. Sojka, 74 N.M. 587, 396 P.2d 195, and reinstatement less than ninety days later for the stated reason that the order had been inadvertently entered, would seem to be within the court's discretionary power to correct mistakes 'arising from oversight or omission' at any time of the court's 'own initiative' as provided in rule 60(a) (Sec. 21-1-1(60) (a), N.M.S.A.1953). Blaine v. Peters (1952), 90 U.S.AppD.C. 207, 194 F.2d 887. Also, compare De Baca v. Sais, 44 N.M. 105, 99 P.2d 106, and Martin v. Leonard Motor Co., supra. We so hold. It follows that appellants' points addressed to the court's refusal to dismiss the cause are without merit.
We now consider appellants' additional points relative to appellees being barred from recovery by virtue of Mrs. Beyer's contributory negligence. It is their position that she cannot recover because she did not see what she should have seen. The collision occurred just north of the centerline of Highland Avenue and just east of the centerline of Solano Avenue. Highland Avenue, which runs in an east-west direction, was a one-way thoroughfare some 33 feet wide at the intersection of Solano. Mrs. Beyer, who was traveling north on Solano, stopped at the stop sign before starting across Highland Avenue. She had proceeded some 17 feet or more into the intersection when her car was struck on the left side at about the left front door by the front of the Montoya car which was traveling east on Highland. Unquestionably, the record discloses a clear and unbroken view of from 270 to 300 feet to the west from the stop sign on Solano.
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