Trujillo v. Harris, 7723
Decision Date | 24 January 1966 |
Docket Number | No. 7723,7723 |
Citation | 410 P.2d 401,1966 NMSC 14,75 N.M. 683 |
Parties | C. T. TRUJILLO, Plaintiff-Appellant, v. John HARRIS, Defendant-Appellee. |
Court | New Mexico Supreme Court |
Lorenzo A. Chavez, Melvin L. Robins, Warren F. Reynolds, Albuquerque, for appellant.
Knight, Sullivan & Hurley, Albuquerque, for appellee.
This is an appeal from an order of the district court dismissing plaintiff-appellant's complaint under Sec. 21-1-1(41)(e), N.M.S.A., 1953 Comp.
The record discloses the following facts. The complaint was filed on May 4, 1960. On July 15, 1960, defendant filed a motion to dismiss on the ground that the differences, if any, between the parties had been settled. On October 10 and November 9, 1960, defendant filed notices to take plaintiff's deposition. Defendant's motion to dismiss was denied on November 9, 1960, and defendant filed his answer on November 14, 1960. On November 14, 1960, plaintiff filed notice to take defendant's deposition, and on November 17, 1960, plaintiff filed a jury demand. Defendant filed his motion to dismiss under Rule 41(e) on July 19, 1963.
The transcript then shows that plaintiff's response to the motion to dismiss was filed July 26, 1963, and to that motion plaintiff attached a letter dated August 3, 1961, asking the trial court to set the case for hearing. The trial court granted the motion for dismissal on August 1, 1963.
The transcript also shows an amended praecipe with letters attached from plaintiff's attorney to the trial judge dated February 1, 1962, and March 25, 1963, asking the judge to set the case for hearing. Other letters attached to the transcript concern demands and response to demands for medical information. They are not discussed or considered because of defendant's contention that plaintiff was never ready for trial, and so could not complain of the non-availability of a jury.
Plaintiff's sole contention is that the district court erred in dismissing the complaint and directs our attention to the similarity of the facts in this case and Sarikey v. Sandoval, 75 N.M. 271, 404 P.2d 108, which was handed down on July 6, 1965. Defendant, in his brief, also cites Ringle Development Corporation v. Chavez, 51 N.M. 156, 180 P.2d 790, and Pettine v. Rogers, 63 N.M. 457, 321 P.2d 638, which have been repeatedly cited and construed by this court, as well as Sarikey v. Sandoval, supra.
In this case we are asked to find that the non-availability of a jury was good reason to toll the statute, or that letters from plaintiff's attorney to the trial judge, asking that the case be set for hearing, were 'action to bring such action or proceeding to its final determination.' We do not see that plaintiff's contention of non-availability of a jury enhances his position. Plaintiff had agreed to furnish certain medical data to defendant, and that information was not made available to defendant until after the motion to dismiss. Because of plaintiff's failure to furnish the required material, the case could not have proceeded to trial and could not have been tried within the two year period, even if a jury had been called. See Western Timber Mproducts Co. v. W. S. Ranch Company, 69 N.M. 108, 364 P.2d 361.
Before deciding whether the letters from plaintiff's attorney were proper action to satisfy Rule 41(e), it is necessary to determine whether they were a part of the trial court record prior to the motion to dismiss.
In Ringle Development Corporation v. Chavez, supra, it appeared that the plaintiff might have had good reasons to toll the Rule. This court affirmed the dismissal, and an indication of the importance that the action appear in the record is shown by the statement that:
'It does not appear from the record in this case that there was any reason beyond the control of the plaintiff why this suit could not have been prosecuted.'
In Featherstone v. Hanson, 65 N.M. 398, 338 P.2d 298, this court again showed its concern with the court record and said:
'* * * absent * * * some showing in the court file itself...
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