Featherstone v. Hanson, 6510

• Decision Date: 24 April 1959
• Docket Number: No. 6510,6510
• Citation: 1959 NMSC 40,338 P.2d 298,65 N.M. 398
• Parties: Olen F. FEATHERSTONE, Plaintiff-Appellant, v. Ernest A. HANSON, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 298

338 P.2d 298

65 N.M. 398

Olen F. FEATHERSTONE, Plaintiff-Appellant, v. Ernest A. HANSON, Defendant-Appellee.

No. 6510.

Supreme Court of New Mexico.

April 24, 1959.

Frazier & Cusack, Roswell, for appellant.

Hervey, Dow & Hinkle, George H Hunker, Jr., James T. Jennings, Roswell for appellee.

CARMODY, Justice.

This is an appeal from the action of the district court in dismissing a cause of action under the provisions of Sec. 21-1-1(41)(e), N.M.S.A. 1953 Comp.

The complaint in the case was filed on the 7th of March, 1955, and issue was originally joined by answer thereto on the 15th of April, 1955. Subsequently, on the 13th of December, 1955, an amended complaint was filed which was answered by the defendant on January 23, 1956. On July 18, 1958, motion to dismiss under the statute was filed, and on Septeming 5, 1958, an order was entered dismissing the cause with prejudice.

Plaintiff-appellant seeks a reversal of this ruling on the ground that the trial court should have exercised its discretion and found that the plaintiff did not come within the mandatory provisions of the statute on the following grounds: (a) That the plaintiff had taken every possible action to bring this cause to its final determination; (b) that plaintiff was unable for causes beyond his control to bring the case to trial; and (c) that the defendant by continuing the litigation after two years from the date of the original complaint either waived his right or is estopped from seeking a motion to dismiss.

The plaintiff filed an answer to the motion to dismiss and incorporated therein an affidavit setting forth circumstances which he contends prevented the case from being brought to trial. These circumstances consisted, in part, in the discharge of his original attorneys slightly more than two years after the filing of the original complaint, the employment of a second firm of attorneys who represented the plaintiff for approximately a year and then withdrew about six weeks before the motion to dismiss was filed, and that on several occasions during the pendency of the case the plaintiff sought to have his attorneys dispose of the case or have it brought to trial. (The attorneys who now represent the plaintiff on appeal entered their appearance on his behalf approximately five weeks after the filing of the motion to dismiss).

The statute or rule involved herein is as follows: 21-1-1(41)

'(e) Dismissal Of Action With Prejudice.

'(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 postoponing 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.'

This section has been considered by us in Ringle Development Corporation v. Chavez, 1947, 51 N.M. 156, 180 P.2d 790, and in Pettine v. Rogers, 1958, 63 N.M. 457, 321 P.2d 638, and we reaffirm what was said therein and find as to the plaintiff's first two contentions that they are not well taken.

With respect to the third assertion, claiming either a waiver or estoppel, it is agreed by the parties that there was never any agreement or apparently even discussion between any of the attorneys with respect to a stipulation of waiver of the two-year limitation. Actually, the only claim of consequence upon which plaintiff relies is the fact that after the two-year statute had run from the date of the filing of the original complaint, plaintiff's original attorneys were discharged, new attorneys employed, settlement negotiations entered into, depositions of the parties taken, and substantial sums paid by the plaintiff to his new attorneys for fees and costs. It should be mentioned that, according to the correspondence between plaintiff and his new attorneys, one of the main purposes of the taking of the depositions was in order that the new attorneys could competently advise the plaintiff as to the possible outcome of the litigation.

We fail to see anything in any of the actions on behalf of the defendant which would create an estoppel. There is nothing before us to even intimate any promise, duty or holding out on the part of the defendant upon which the plaintiff relied which could in this case bring the doctrine of estoppel to...