City of Roswell v. Holmes, 4483.

• Decision Date: 24 November 1939
• Docket Number: No. 4483.,4483.
• Citation: 96 P.2d 701,44 N.M. 1
• Parties: CITY OF ROSWELLv.HOLMES et al.
• Court: New Mexico Supreme Court

44 N.M. 1

96 P.2d 701

CITY OF ROSWELL

v.HOLMES et al.

No. 4483.

Supreme Court of New Mexico.

Nov. 24, 1939.

Appeal from District Court, Chaves County; James B. McGhee, Judge.

Paving lien foreclosure proceeding by the City of Roswell against Jennie M. Holmes and others. From an order of dismissal with prejudice as to certain of the defendants, the plaintiff appeals.

Order reversed, and cause remanded.

In absence of statute, the determination of what amounts to lack of diligence in the prosecution of a suit, so as to entitle a court to dismiss it, is to be determined by the court in the exercise of judicial discretion.

Ross L. Malone, Jr., of Roswell, and W. A. Keleher and Theo. E. Jones, both of Albuquerque, for appellant.

Lake J. Frazier, of Roswell, for appellees.

BICKLEY, Chief Justice.

This appeal is from an order of dismissal “with prejudice” under the provisions of Ch. 121, L. 1937, as to seven of more than fifty defendants in a paving lien foreclosure proceeding.

Ch. 121, L. 1937, is as follows:

“Section 1. 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. No pending action or proceeding shall be dismissed under the provisions hereof until ninety days from and after the effective date of this Act. [Italics ours.]

“Section 2. The filing of the motion for dismissal above provided for shall be taken and held as a special appearance by the party so filing same and shall not be taken to be an entry of appearance in said action or proceeding to confer upon the court jurisdiction other than to act upon said motion.”

Appellant's position is that this is a procedural statute, and that the italicized portion above contravenes Article IV, Section 34, of the New Mexico Constitution, and that the statute is therefore inapplicable to this cause as it was a pending case at the time of the passage and effective date of the statute.

Article IV, Sec. 34, of the New Mexico Constitution is as follows:

“No act of the legislature shall affect the right or remedy of either party, or change the rules of evidence or procedure, in any pending case.”

We think appellant's contention is correct.

[1][2] In the first place, it is an inherent right of the courts and therefore one existing independently of any statute to dismiss a suit for failure to prosecute it with diligence. 9 R.C.L. 206. This is affirmed by counsel for both parties in the case at bar. Doubtless ordinarily the determination of what amounted to diligence was to be determined by the court in the exercise of a judicial discretion. Statutes or rules of court providing for the dismissal of actions not brought to trial within a stated time have been adopted in a number of jurisdictions. The statute here under consideration is of this type and changes the practice heretofore existing in that the legislature has provided what is a reasonable time within which suits shall be prosecuted to final determination by naming an arbitrary period, and further providing that when an action is dismissed under the provisions of the statute it shall be with prejudice to any other or further prosecution of the same cause of action. Prior to the enactment of the statute here involved, dismissing with prejudice has not been the procedure in New Mexico, or elsewhere, so far as we know, in the absence of controlling statute or rule of court. See 7 Standard Ency. of Procedure 678.

The text writer in the Corpus Juris article on “Statutes of Limitations” 37 C.J. 684, says:

“The essential attribute of a statute of limitations is that it accords and limits a reasonable time within which a suit may be brought upon causes of action which it affects. Statutes of limitation do not confer any right of action but are enacted to restrict the period within which the right otherwise unlimited might be asserted. They are not matters of substantive right * * and rarely operate against one in the enjoyment of a right.”

Thus it seems to us that Ch. 121, L. 1937, partakes of the attributes of a limitations statute. It limits the time within which an action once instituted may remain upon the docket. We see no reason why a litigant may not ordinarily dismiss an action prior to the running of the time limitation of the statute and preserve his right to bring a subsequent action.

The Wisconsin Supreme Court in Walter Brewing Co. v. Henseleit, 146 Wis. 666, 132 N.W. 631, 632, said:

“It is undoubtedly the law of this state that a seasonable voluntary dismissal by plaintiff of his cause of action, or a dismissal pursuant to a stipulation, is no bar to the bringing of a subsequent action for the same cause, and between the same parties. Bishop v. McGillis, 82 Wis. 120, 51 N.W. 1075. ***

“It was early ascertained that injustice, and not justice, was often meted out in the prosection of stale claims, and later it was discovered that, though a suit might be seasonably instituted, yet, if it was not seasonably brought to trial, like injustice might result. Hence the enactment, in 1897, of section 2811a. Speaking of its purpose, this court has said: ‘It indicates a legislative policy that actions should not be permitted to slumber indefinitely, but that a reasonable time should be allowed within which to prosecute them, and provides a limitation.’ Fleming v. Ellison, 124 Wis. [36], 41, 102 N.W. [398], 400. That it was intended as a statute of limitation upon the time within which a suit might be prosecuted is evidenced, both from its language and the rules of law applicable to nonsuits and dismissals existing at the time it was passed. ***”

In 12 C.J. 1088 “Constitutional Law” § 782, it is said:

“Constitutional prohibitions against retrospective laws are generally held not to apply to acts which affect procedure only, and statutes affecting procedure are accordingly held valid even in their application to pending suits. * * Statutes are valid which merely add a remedy for an already existing right or limit or extend the time for its enforcement. In like manner particular remedies for existing rights may be taken away. Retrospective laws affecting remedies are invalid, however, where all remedies for an existing right are taken away * *”

Further weight may be given our conclusion that our statute is procedural in character by reference to decisions by the California courts in...