Sanford v. Starlite Disco, Inc. , 66 N.C. App. 470 ( 1984 )

311 S.E.2d 67 (1984)

Charles E. SANFORD
v.
STARLITE DISCO, INC., d/b/a Starlite Disco.

No. 8330SC178.

Court of Appeals of North Carolina.

February 7, 1984.

Frank G. Queen, Waynesville, for plaintiff-appellant.

Alley, Killian & Kersten by Leon M. Killian, III, Waynesville, and Harrell & Leake by Larry B. Leake, Asheville, for defendant-appellee.

WEBB, Judge.

G.S. 1A-1, Rule 41(d) of the North Carolina Rules of Civil Procedure provides as follows in pertinent part:

"(d) ... If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant before the payment of the costs of the action previously dismissed, ... the court, upon motion of the defendant, shall make an order for the payment of such costs by the plaintiff within 30 days and shall stay the proceedings in the action until the plaintiff has complied with the order. If the plaintiff does not comply with the order, the court shall dismiss the action."

This section of Rule 41 was amended in 1979 to provide for the 30-day period before dismissal of an action. Prior to amendment, the rule provided for summary dismissal of a second action brought before the payment of the costs in a first action.

Plaintiff contends the 30-day provision in Rule 41(d) should be read in conjunction with Rule 6(b) of the North Carolina Rules of Civil Procedure which provides for an enlargement of the time within which to take a given action, and that the court erred in not considering plaintiff's alleged excusable neglect as an explanation for his late payment of the costs. We disagree.

This Court held, in interpreting Rule 41(d) prior to its amendment, that the language of the rule constituted a mandatory directive. See Cheshire v. Aircraft Corp., 17 N.C.App. 74, 193 S.E.2d 362 (1972). The 1979 amendment served only to add a 30-day grace period within which the plaintiff could pay the costs assessed and avoid summary dismissal. The language of the rule directing that the court "shall dismiss the action" (emphasis added) if the costs assessed have not been paid remains the same, thus the rule as amended still constitutes a mandatory directive. For this reason, we hold that the trial court properly enforced the mandatory provisions of Rule 41(d) when it entered the order dismissing the plaintiff's second action.

Affirmed.

VAUGHN, C.J., and JOHNSON, J., concur.