Ad-Art, Inc. v. Denison , 94 Nev. 73 ( 1978 )

574 P.2d 1016 (1978)

AD-ART, INC., a California Corporation, Appellant,
v.
Jack DENISON and Alibi Room, Inc., a Nevada Corporation, Respondents.

No. 8924.

Supreme Court of Nevada.

February 15, 1978.

Roger L. Wright, Reno, for appellant.

Smith & O'Brien, Las Vegas, for respondent, Jack Denison.

Embry, Shaner & Lang, Las Vegas, for respondent, Alibi Room, Inc.

OPINION

PER CURIAM:

The sole issue presented in this appeal is whether appellant's action was "brought to trial" within the five-year limitation prescribed by NRCP 41(e).^[1]

Appellant sought damages arising from respondents' alleged breach of contract. Within five years of the date the action was filed a trial was commenced and appellant called three witnesses before the district court declared a mistrial. Subsequently, after numerous continuances, respondents moved for a dismissal of the action for want of prosecution. The district court granted respondents' motion on the ground "the ... action was not brought to trial within five years after ... filing."

We have previously held that NRCP 41(e) is clear and unequivocal: any action not brought to trial within five years must, upon proper motion, be dismissed. See Thran v. District Court, 79 Nev. 176, 380 P.2d 297 (1963). Respondents contend the mistrial was the equivalent of no trial at all, and therefore, since the five-year limitation expired before further trial proceedings were commenced, the action was not "brought to trial" within the prescribed limitation. We disagree.

For purposes of complying with NRCP 41(e), one way an action may be "brought to trial" is by calling one witness who testifies. See Weeks v. Roberts, 68 Cal. 2d 802, 69 Cal. Rptr. 305, 442 P.2d 361 (1968). Here, three witnesses testified before the mistrial was declared. Under these circumstances, we believe appellant has satisfied the mandate of NRCP 41(e) and dismissal was improper. Accordingly, the district court order must be vacated and the cause remanded for proceedings consistent with this opinion.^[2]

NOTES

[1] NRCP 41(e) provides, in pertinent part: "Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced or to which it may be transferred on motion of the defendant, after due notice to plaintiff or by the court upon its own motion, 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."

[2] The Governor designated Peter I. Breen, Judge of the Second Judicial District, to sit in place of Hon. Gordon Thompson, Justice, who was disabled. Nev.Const. art. 6, § 4.