Trail v. Faretto, 7755

• Decision Date: 18 June 1975
• Docket Number: No. 7755,7755
• Citation: 536 P.2d 1026,91 Nev. 401
• Parties: John E. TRAIL and Alice N. Trail, Appellants, v. John C. FARETTO et al., Respondents.
• Court: Nevada Supreme Court

Page 1026

536 P.2d 1026

91 Nev. 401

John E. TRAIL and Alice N. Trail, Appellants, v. John C. FARETTO et al., Respondents.

No. 7755.

Supreme Court of Nevada.

June 18, 1975.

Fred A. Nelson and James W. Johnson, Jr., Reno, for appellants.

Echeverria & Osborne and David K. Baba, Reno, for respondents.

OPINION

PER CURIAM:

Two actions were commenced in September and October of 1957 which three years later after issue was joined were consolidated. On October 27, 1965, the matters not having been brought to trial defendants moved to dismiss under the five-year provision of NRCP 41(e), but the motion was denied. ¹

Three years later the cases were set for trial for December 2, 1968. Instead of going to trial the parties on December 3, 1968, stipulated that they go off calendar, but the defendants reserved the right to assert 'whatever legal positions available to them resulting from the plaintiffs' failure to bring the matter to trial at this time.'

A year and a half later the trial court sua sponte entered an order of dismissal under 41(e). Plaintiffs appeal the trial court's refusal to stay proceedings to enforce the judgment and for an order vacating judgment, entered by a different judge, and the order of dismissal.

The first order denying the motion to dismiss does not foreclose a succeeding motion of like nature when there has been a change of circumstances, here, an additional extensive lapse of time. O'Brien v. City of Santa Monica, 220 Cal.App.2d 67, 33 Cal.Rptr. 770 (1963). Five years had elapsed from the first denial of the motion to dismiss. It is too well-settled to warrant further citations that whenever plaintiff has failed to bring an action to trial within five years from its filing the court in the absence of a written stipulation extending time shall dismiss the action. Furthermore, a court may, for sufficient cause shown, amend, correct, resettle, modify, or vacate, as the case may be, an order previously made and entered on motion in the progress of the cause or proceeding. J. J. Case Company v. McDonald, 76 Idaho 223, 280 P.2d 1070 (1955); Mannah v. Robinson, 199 Okl. 551, 188 P.2d 360 (1948).

Appellants' efforts to convince this court that the stipulation did not mean what it says are without merit. The operative dates contained in the stipulation were as stated and did not constitute an extension of time without limit.

Affirmed.

1 NRCP 41(e).

Want of Prosecution. The court may in its discretion dismiss any action for want of prosecution on motion of the defendant and after due notice to the plaintiff, whenever plaintiff has failed for two years...