Bunting Tractor Co. v. Emmett D. Ford Contractors

• Decision Date: 09 July 1954
• Docket Number: No. 8131,8131
• Citation: 2 Utah 2d 275,272 P.2d 191
• Parties: d 275 BUNTING TRACTOR CO., Inc. v. EMMETT D. FORD CONTRACTORS, Inc.
• Court: Utah Supreme Court

Page 191

272 P.2d 191

2 Utah 2d 275

BUNTING TRACTOR CO., Inc. v. EMMETT D. FORD CONTRACTORS, Inc.

No. 8131.

Supreme Court of Utah.

July 9, 1954.

Arthur H. Nielsen, Salt Lake City, Monroe J. Paxman, Provo, for appellant.

S. E. Blackham, Provo, for respondent.

CROCKETT, Justice.

Plaintiff's action was dismissed 'with prejudice' solely on the ground that it failed to file a nonresident cost bond within one month after demand as required by law. This appeal challenges such dismissal as being an abuse of discretion. We agree.

Plaintiff, an Idaho Corporation, commenced suit for the value of goods sold and services performed. On July 2, 1953, defendant served notice on plaintiff to furnish security for costs in accordance with the provisions of rules 12(j) and (k), U.R.C.P which provide for such procedure when the plaintiff is a foreign corporation and require the bond to be furnished within one month. Plaintiff let more than one month go by before complying with the request, but before defendant had moved for dismissal, filed the bond on September 14, 1953.

Thereafter defendant moved to dismiss the action relying on the provision of rule 12(k), U.R.C.P., that 'if the plaintiff fails to file such undertaking within one month after the service of notice, * * * the court shall, upon motion of the defendant, enter an order dismissing said action.' (Emphasis added.)

It is the defendant's position that the emphasized language makes the dismissal mandatory when the bond is not filed within the month, and that such dismissal, considered in conjunction with rule 41(b) which provides:

'Involuntary Dismissal-Effect Thereof. * * * Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue, operates as an adjudication upon the merits.' (Emphasis added.)

compels the conclusion that the court properly dismissed the action 'with prejudice,' and particularly so when plaintiff made no affirmative showing of mistake, inadvertence or excusable neglect to excuse the late filing of the bond.

Plaintiff argues that failure of defendant to move for dismissal before the bond was filed waived the strict time limitation and that it could file the bond at any time before a motion to dismiss was made, just as an overdue answer may be filed at any time before actual default is entered. This argument is not without merit, notwithstanding the apparently mandatory language of rule 12(k) quoted above, indicating that for failure to file a bond within one month the court shall dismiss the action, but determination of that matter is not essential to this controversy. Assuming without deciding that under the circumstances here shown it would have been necessary for the court to dismiss the action under 12(k), the question remains as to whether the dismissal should have been 'with' or 'without' prejudice.

In entering any judgment it is the duty of the court to make such order, not inconsistent with law, as will effectuate justice. In accordance with such duty it was incumbent upon the trial judge to exercise a sound discretion as to whether the dismissal should have been with or without prejudice. The general philosophy of the new Rules of Civil Procedure is that liberality should be indulged 'to secure the just, speedy, and inexpensive determination of every action.' ¹ In construing and applying these rules it should be the purpose of the courts to afford litigants every reasonable opportunity to be heard on the merits of their cases. This policy is not an innovation to our law. It has long been embodied both in the statutes ² and decisions ³ that deviation from form and procedure shall not work a forfeiture of substantive rights in the absence of prejudice to the opposing party.

The objection raised by defendant that security for costs was not filed within one month after notice is at best but a technical one. The only legitimate advantage defendant was entitled to was protection from loss of costs. This was provided before the motion to dismiss was made and thus defendant had suffered no harm, not even the inconvenience sometimes encountered in being required to make the motion to dismiss. On the other hand, merely because of delay in filing of the bond (which we neither commend nor condone) the plaintiff stands to lose forever the right to pursue what might well be a meritorious cause of action. It would have been one thing to dismiss the action without prejudice and require the paintiff to incur the additional expense and inconvenience of filing anew, but it is quite another to dismiss with prejudice and completely, effectively and permanently bar it from remedy.

We cannot appraise the trial court's action as consonant with what the rules themselves and previous decisions of this court have declared to be the policy of the law: to minimize the effect of technical objections which do not go to the merits and are not prejudicial to the interests of the parties. ⁴ We are of the opinion that the dismissal with prejudice was an abuse of discretion. Accordingly it is ordered that the judgment appealed from be reformed by inserting the words 'without prejudice' in place of the words 'with prejudicie.' The judgment as modified to stand affirmed. Costs to appellant.

McDONOUGH, C. J., and WADE, J., concur.

HENRIOD, Justice (concurring in result).

Since this court authoritatively may interpret its own rules, and since a majority of the court has concurred in the opinion of Mr. Justice CROCKETT, I concur in the result, but not in the reasoning by which it is reached.

Rule 12(k) clearly makes dismissal mandatory if the cost...