RINGLE Dev. Corp. v. CHAVEZ

• Decision Date: 07 May 1947
• Docket Number: No. 4992,4992
• Citation: 180 P.2d 790,51 N.M. 156
• Parties: RINGLE DEVELOPMENT CORPORATION v. CHAVEZ et al.
• Court: New Mexico Supreme Court

51 N.M. 156

180 P.2d 790

RINGLE DEVELOPMENT CORPORATION

v.CHAVEZ et al.

No. 4992.

Supreme Court of New Mexico.

May 7, 1947.

[180 P.2d 790, 51 N.M. 157]

R. P. Barnes, Allen M. Tonkin and William J. Truswell, all of Albuquerque, for appellant.

Gilberto Espinosa, of Albuquerque, for appellees.

McGHEE, Justice.

Appellant, plaintiff below, seeks a reversal of an order dismissing, with prejudice, his cause of action against appellees, made under the provisions Sec. 19-101(41)(e)(1), 1941 N.M.Code. We will hereafter refer to the parties as they appeared in the district court.

Complaint was filed October 30, 1943, service was had and issue joined in due course. On January 21, 1946, the defendants filed a motion setting out that nothing had been done toward bringing the case to final determination for more than two years and asking that it be dismissed with prejudice. The plaintiff thereupon filed the affidavit of its president reciting that his failure to act had been caused by the absence of two material witnesses; that one had been out of the jurisdiction of this court more than 2 1/2 years in defense service of the United States, and that the other had been in the United States Navy about three years; that the witnesses had continued such service until a very recent date, so that he had been unable to safely have the case set for trial.

Incidentally, both witnesses were members of the bar, one residing in Bernalillo County and the other in Valencia County. The order does not state whether the trial judge deemed the rule made his action mandatory, or whether he exercised his discretion. The plaintiff contends that the rule is not mandatory and that the trial court so abused his discretion as to require a reversal.

The disposition of this case requires the consideration of two rules of this court: Rule 41(b), section 19-101, 41(b) 1941 Code, adopted from the Federal Rules of Civil Procedure, rule 41(b), 28 U.S.C.A. following section 723c, reading: 'For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action orof any claim against him. After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. Unless the court in its order for dismissal otherwise specifies, a dismissalunder 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.'

and Rule 41(e), section 19-101, 41(e)(1), 1941 N.M.Code originally enacted by the Legislature as Chapter 121, Laws of 1937, and later adopted by us as a rule, reading: '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.'

The federal rules do not contain a provision like our Rule 41(e), but see American Nat. Bank & Trust Co. of Chicago v. United States, 79 U.S.App.D.C. 62, 142 F.2d 571, in which it is held that while the federal rules did not provide for such a dismissal, yet under the inherent authority of the court it could be dismissed and Rule 41(b) operates so that it amounts to an adjudication on the merits, which means that it is with prejudice. Also see Barger v. Baltimore & O. R. Co., 75 U.S.App.D.C. 367, 130 F.2d 401; Partridge v. St. Louis Joint Stock Land Bank, 8 Cir., 130 F.2d 281; Sweeney v. Anderson, 10 Cir., 129 F.2d 756; Hicks v. Bekins Moving & Storage Co., 9 Cir., 115 F.2d 406.

Section 583 of the Code of Civil Procedure of California is quite similar. It reads: 'Any action * * * shall be dismissed by the court * * * 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.'

This statute has been construed by the California courts as requiring mandatory dismissal of actions within the statute. See annotations in 112 A.L.R. 1159.

We think the proper rule was announced by the Supreme Court of California inChristin v. Superior Court, 9 Cal.2d 526, 71 P.2d 205, 208, 112 A.L.R. 1153, 1155, 1157, where it said:

'The...