Sender v. Montoya

• Decision Date: 23 December 1963
• Docket Number: No. 7428,7428
• Citation: 387 P.2d 860,1963 NMSC 220,73 N.M. 287
• Parties: Kenneth D. SENDER, Petitioner, v. Honorable Samuel Z. MONTOYA, Judge of Division 1 of the District Court of Santa Fe County, New Mexico, Respondent.
• Court: New Mexico Supreme Court

Page 860

387 P.2d 860

73 N.M. 287

Kenneth D. SENDER, Petitioner, v. Honorable Samuel Z. MONTOYA, Judge of Division 1 of the

District Court of Santa Fe County, New Mexico,

Respondent.

No. 7428.

Supreme Court of New Mexico.

Dec. 23, 1963.

Catron & Catron, John S. Catron, Santa Fe, for petitioner.

Earl E. Hartley, Atty. Gen., Norman S. Thayer, Asst. Atty. Gen., Santa Fe, for respondent.

CARMODY, Justice.

Petitioner, by an original action in mandamus, seeks to compel respondent to dismiss a case under rule 41(e) (Sec. 21-1-1(41)(e), N.M.S.A.1953).

The issues are narrowly confined to whether respondent erroneously refused to dismiss a proceeding for failure of the plaintiff to take any action to bring a case to its final determination more than two years after the filing thereof, and whether mandamus is appropriate if the trial court's refusal to dismiss was improper.

The case in the district court was a replevin action by the State Records Administrator to obtain possession of certain claimed historical documents. The complaint was filed on February 21, 1961, and the pleadings were settled by June 28, 1961, at which time the court ordered certain of the defendant's (petitioner here) defenses stricken. Thereafter, in September, 1962, the plaintiff filed a request for admissions of fact, and propounded certain interrogatories. Response to the request and answers to the interrogatories were filed in October, 1962. Nothing further appears in the record until April 30, 1963, when the defendant filed his motion to dismiss under rule 41(e). On May 23, 1963, the plaintiff filed a written motion requesting a pretrial conference and that the case be set for trial, but such action, following defendant's motion, was not timely. The respondent, after hearing on the motion to dismiss, made findings of fact as to the specific dates when the various pleadings and orders were filed, together with a finding that no written stipulation had been made or filed. As a part of this same order, the court concluded as follows:

'On the foregoing findings of fact, the Court concludes as matters of law that plaintiff's request for admissions of fact by defendant filed herein on September 18, 1962, constituted action by plaintiff to bring this cause to its final determination within the meaning of Rule 41(e), and that defendant's motion to dismiss under said Rule should therefore be denied.'

Little would be gained in reviewing our various decisions construing rule 41(e). Suffice it to say that dismissal is mandatory after the passage of two years from the filing of the action, unless the time is tolled by certain well-defined exceptions. Ringle Development Corporation v. Chavez, 1947, 51 N.M. 156, 180 P.2d 790; Featherstone v. Hanson, 1959, 65 N.M. 398, 338 P.2d 298; Henriquez v. Schall, 1961, 68 N.M. 86, 358 P.2d 1001; Western Timber Products Co. v. W. S. Ranch Company, 1961, 69 N.M. 108, 364 P.2d 361. None of the exceptions are applicable to the facts here, unless the request for admissions of fact amounts to a showing of diligence to bring the action to trial. It is noted, however, that our decisions in Featherstone v. Hanson, supra, and Western Timber Products Co. v. W. S. Ranch Company, supra, imply that the taking of discovery procedures does not toll the running of the rule, and, in addition, very recently we have specifically held this to be true. In Morris v. Fitzgerald, 1963, 73, N.M. 56, 385 P.2d 574, we said:

'Beyond what has been considered above, the record discloses nothing that was done to bring the case to its conclusion except to take a number of depositions. Does this serve to toll the statute?

'It was the duty of plaintiff to take some action to bring the case to its final determination within two years of its filing. We do not consider the taking of depositions as being action to accomplish this end so as to toll the statute. All discovery procedures are available to be used or not, as a litigant sees fit, and none are required prerequisites to trial. Accordingly, in our view, they are not 'actions' to bring a proceeding to its final determination so as to toll the statute. * * *'

We are of the opinion that the request for admissions of fact is one of the discovery procedures contemplated in the above quotation. This is so, even though 2A Barron & Holtzoff, Federal Practice & Procedure, Sec. 831, states that 'Strictly speaking Rule 36 is not a discovery procedure at all, * * *.' However, this same authority (Sec. 641) includes rule 36 as a part of the 'discovery mechanism' and cites no less authority than the Supreme Court of the United States in the case of Hickman v. Taylor, 1947, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451. It is also worthy of note that the Federal Rules of Civil Procedure are subdivided under ten separate headings, identified by Roman numerals and generally describing the type of the rules thereunder. When this court adopted the Federal Rules, with minor changes, we also adopted the same subidivisions. Subdivision V, 'Depositions and Discovery,' includes rules 26 to 37, both inclusive. Thus, inasmuch as rule 36, dealing with requests for admissions of fact, is classified as a part of the discovery process, we know of no reason why it should be considered otherwise. It is implicit in Robinson v. Navajo Freight Lines, Inc., 1962, 70 N.M. 215, 372 P.2d 801, that requests for admissions are regarded as similar to depositions and interrogatories. It follows, therefore, that the motion to dismiss under rule 41(e) should have been sustained.

Having so concluded, it must be determined whether mandamus is a proper remedy to require the respondent to dismiss the proceeding below. In the final analysis, the point for decision is whether we should grant mandamus because of the absolute nature of the right to dismissal granted to petitioner under our decisions in Ringle Development Co. v. Chavez and other cases cited supra. In other words, does it appear that the respondent failed to perform a clear, absolute and imperative legal duty which was not dependent upon the exercise of judicial discretion.

The two sections of the statute relating to mandamus (N.M.S.A.1953) here material are: Section 22-12-4, which provides:

'22-12-4. It may be issued to any inferior tribunal, corporation, board or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station; but though it may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, it cannot control judicial discretion.'

and Sec. 22-12-5, which, so far as pertinent, reads:

'22-12-5. The writ shall not issue in any case where there is a plain, speedy and adequate remedy in the ordinary course of law. * * *'

As to Sec. 22-12-4, the problem is really answered by what we have said. Respondent should have sustained the motion. There was really no question involving judicial discretion. See Morris v. Fitzgerald, supra; Andersen v. Superior Court, 1921, 187 Cal. 95, 200 P. 963, where it was said:

'But where the express mandatory conditions for a dismissal are clearly established, and without contradiction, the court was without discretion in the matter.'

See also J. C. Penney Co. v. Superior Court of Fresno County, 1959, 52 Cal.2d 666, 343 P.2d 919; State v. Superior Court for Pierce County, 1940, 3 Wash.2d 702, 102 P.2d 246; State v. District Court of Ninth Judicial District, 1930, 42 Wyo. 214, 292 P. 897, 71 A.L.R. 993; and First Nat. Bank v. Cheney, 1898, 120 Ala. 117, 23 So. 733.

Dismissal was mandatory under our decisions. Respondent attempts to distinguish the California cases because of the difference between the California statute and our rule, but in so doing overlooks what we said in Featherstone v. Hanson, supra:

'* * * The basic difference, however, between the California statute and our rule is the difference in time limit, for otherwise both statutes have been construed to be mandatory.'

Petitioner, of course, has a right of appeal, but it is obvious that he would have to await the completion of the trial on the merits. Whether such a right is speedy and adequate so as to prevent irreparable mischief, great hardship, costly delays and unusual burdens of expense in the immediate problem. In our opinion, in this particular case the remedy by appeal is not adequate.

The issue in the trial court involves the ownership and right to possession of over three hundred separate documents, many of which are several pages in length and practically all of which are in longhand in the Spanish language. For these documents to be transcribed, and perhaps translated, would of itself involve great cost and considerable delay in the preparation of a transcript, even if the ordinary delays attendant to a somewhat involved trial could be minimized. It would be many months, if not years, before the case could be decided by us. However, this of itself would not justify the extraordinary relief sought. Neither does the fact that the petitioner does not have the benefit of a replevin bond move us to grant the writ, although this is a circumstance which must be considered in connection with the delays of a trial and subsequent appeal. It is more the combination of all the various facets of the litigation which makes it apparent that to refuse the writ 'would result in needless expense and delay' (State ex rel. Cardenas v. Swope, 1954, 58 N.M. 296, 270 P.2d 708), when the final result cannot be otherwise than favorable to petitioner. We said in Flores v. Federici, 1962, 70 N.M. 358, 374 P.2d 119, that mandamus is a proper remedy to require the district judge to grant a trial by jury because '[t]o hold otherwise could lead to palpable absurdity.' Both the Swope and Federici cases are direct authority for the issuance of our mandatory writ when a refusal to do so would have required a reversal on appeal after trial. We there intervened to prevent...