Martin v. Leonard Motor-El Paso , 75 N.M. 219 ( 1965 )

NOBLE, Justice.

The plaintiff has appealed from a judgment dismissing his complaint pursuant to Rule 41(e) (§ 21-1-1(41) (e), N.M.S.A. 1953).

The complaint, filed June 7, 1961, was dismissed by the court on August 21, 1963, without prejudice for lack of prosecution, but was reinstated on the docket November 5, 1963, by order of court. The defendant 'now argues for the first time on appeal that the district court lost jurisdiction of the case thirty days after its • order of dismissal on August 21, 1963; that it was without jurisdiction to reinstate the case; that all proceedings thereafter, including the 41(e) dismissal, were void; and, that this court is consequently without jurisdiction to review the 41 (e) dismissal.

The August 21, 1963 dismissal was no doubt under the court’s inherent power, City of Roswell v. Holmes, 44 N.M. 1, 96 P.2d 701, and was unquestionably a final judgment. Nevertheless, courts are authorized by Rule 60(b) (§ 21-1-1(60) (b), N.M.S.A.1953) to relieve a party from any final judgment for good cause shown. We realize that Rule 60(b) provides that the relief therein provided may be granted “on motion * * * ” and that no motion was filed in this case. However, the judge can initiate relief from a judgment or order under Ritle 60(b) on his own motion, McDowell v. Celebrezze (C.C.A. 5), 310 F.2d 43, and, since the obvious purpose of the motion is to direct the court’s attention to the necessity for relief, the rule does not deprive the court of the power to act in the interest of justice when attention has been called to the need by means other than a motion. United States v. Jacobs (C.C.A. 4), 298 F.2d 469. Sec 7 Moore on Federal Practice (2nd Ed.) § 60.28(3), and authorities cited under note 6. Furthermore, § 21-9-1, N.M.S.A.1953, does not conflict with the right to grant relief from judgments under Rule 60(b), since that statute only restored to district courts the absolute control they had over their judgments during the term at which they were entered. Kerr v. Southwest Fluorite Co., 35 N.M. 232, 294 P. 324; Fairchild v. United Service Corp., 52 N.M. 289, 197 P.2d 875. We conclude that the trial court acted within its jurisdiction in reinstating the case on the docket.

Turning our attention to the 41(e) dismissal, it appears that more than two years after the filing of the complaint, but before the defendant moved to dismiss, the plaintiff filed a written motion requesting the court to set the case for trial on the merits. Written interrogatories were propounded to defendant at the same time and were later answered. Thereafter, on January 17, 1964, plaintiff filed a request for an admission of fact but, on the same day, defendant filed its written motion for dismissal under Rule 41(e).

The facts of this case require us to decide whether action taken to bring the case to its final determination more than two years after the filing of the complaint, but prior to a written motion to dismiss, prevents dismissal under the rule.

The language of Rule 41(e) clearly does not justify an automatic dismissal upon the expiration of two years after the filing of the complaint or cross-complaint, even though the party has done nothing to bring the action to its final determination. Rule 41(e) states, insofar as is pertinent, that:

“ * * * any party * * * may have the same dismissed with prejudice * * * by filing in such pending action or proceeding a written motion moving the dismissal thereof with prejudice.”

Before the court is empowered to dismiss for lack of diligence, the party must elect to invoke his right to compel a dismissal and must manifest such election by filing a written motion to dismiss.

We said in Western Timber Products Co. v. W. S. Ranch Co., 69 N.M. 108, 364 P.2d 361, that a showing of diligence in the court file by motion seeking action by the court to bring the case to its final determination satisfies the requirement of the rule. It is evident from a reading of the rule itself that when the requisite action is taken to bring the case to its final determination, Rule 41(e) is satisfied. Of course, we make no attempt to fix a standard of what action is sufficient to satisfy the requirement of the rule, for each case must be determined upon its own particular facts and circumstances.

We think it clear that the rights afforded by the rule are intended to expedite the prosecution of litigation in our courts, and that to be effective in accomplishing that purpose, the defendant may not sleep upon such rights and permit a party to continue^ prosecution of a case which is subject to being dismissed upon motion, expending both time and money, Pollack v. Pollack (Fla.App.), 110 So.2d 474, and particularly to take action to bring the case to its final determination, and then press for a dismissal. The record here discloses that, even though more than two years after the filing of the complaint, but prior to the time the defendant moved to dismiss under 41(e), the plaintiff filed a motion requesting a trial setting, immediately propounded interrogatories to the defendant (which were answered), and filed a request for an admission of fact.

We need not determine whether the filing of interrogatories by plaintiff and their answer by. defendant, after expiration of the two-year period, was sufficient to estop defendant from meritoriously filing a motion to dismiss, within the rule of Western Timber Products Co. v. W. S. Ranch Co., supra, because it cannot be denied that the filing of the motion for a trial setting on the merits amounted to action by the plaintiff to bring the case to its final determination, and that such action came before the defendant elected to invoke his right to dismissal.

While we have said that mere failure to file a motion for dismissal immediately upon the expiration of the two-year period does not constitute a waiver of the right to invoke dismissal, Featherstone v. Hanson, 65 N.M. 398, 338 P.2d 298, the rule nevertheless requires that the defendant elect whether to invoke his right before the plaintiff has taken the requisite action to bring the case to its final determination. The defendant slumbered while the plaintiff satisfied thq requirements of Rule 41(e) and, therefore, his subsequent motion for dismissal came too late.

We have examined each of our decisions concerning the right to a dismissal under Rule 41 (e) and do not find that any of them require a result different from that which we reach.

It follows that the judgment dismissing the plaintiff’s complaint with prejudice under the provisions of Rule 41(e) should be reversed and the case remanded with instructions to proceed further in a manner not inconsistent with this opinion.

It is so ordered.

CARMODY, C. J., and CHAVEZ and COMPTON, JJ., concur. GEORGE L. REESE, Jr., D. J., concurring specially.