Estate of Thompson v. Turner

BAKES, Justice,

dissenting:

The issue in this case is whether or not the district court erred in dismissing the plaintiff’s action because it was an action to reopen the original case and thus was barred by the five-year statute of limitations contained in I.C. § 11-105. This Court reverses, concluding that the plaintiff’s complaint was a new and independent action governed by the six-year statute of limitations under I.C. § 5-215.

The majority admits that the appellant paid the $7.00 filing fee provided for reopening a case under I.C. § 31-3201A(j), rather than the $41.00 filing fee required for instituting a new action. The majority also acknowledges that the plaintiff’s complaint contained the same case number as the original action. However, the majority concludes that, because a summons was issued, this was in fact an independent action rather than a reopening of the old case.

The majority opinion ignores I.C. § 31-3211. Under that section, even if the plaintiff had intended an independent action rather than a reopening of the old case, the clerks of the courts “are not in any case ... to perform any official services unless upon prepayment of the fees prescribed for such services by law____” In short, the statute prohibits the clerk from filing an independent action without the prepayment of the $41.00 filing fee. By tendering only a $7.00 filing fee, the only action which the clerk by law could take was to file the plaintiff’s complaint as a reopening of the original action, which the clerk did. The district court was correct in subsequently dismissing the complaint as barred by the five-year statute of limitations contained in I.C. § 11-105.

The majority’s action in this case is taken in direct contravention of I.C. § 31-3211 which prohibits the clerk of the court from filing an independent action until the $41.00 had been prepaid. Accordingly, I believe that the judgment of the district court should be affirmed.