NO. 95-121 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Dorothy McCarter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James T. Harrison, Jr., Harrison, Leondorf & Poston, 

Helena, Montana 

For Respondent: 

R.J. Sewell, Jr., Bruce M. Spencer, Smith Law Firm, 

Helena, Montana 

Submitted on Briefs: May 19, 1995 

Decided: June 15, 1995 

Filed: 
Justice James C. Nelson delivered the Opinion of the Court. 

Capital Answering Service, Inc., (Capital Answering), appeals 

from an order of the First Judicial District Court, Lewis & Clark 

County, dismissing the complaint of First Call, Inc., (First Call) 

without prejudice. We reverse and remand for further proceedings 

consistent with this opinion. 

The issue on appeal is whether a dismissal pursuant to Rule 

41(e), M.R.Civ.P., should be with prejudice and, thus, accorded res 

judicata effect. 

First Call filed an action for breach of contract against 

Capital Answering in the District Court, Lewis & Clark County on 

September 9, 1991, as Cause No. ADV 91-1480, and a summons was 

issued the same date. That summons, however, was not served within 

the three year period specified in Rule 41(e), M.R.Civ.P. An 

amended summons was issued August 30, 1994, and was served on 

September 13, 1994, prior to the running of the statute of 

limitations on First Call's cause of action. Capital Answering 

moved to dismiss on the basis of Rule 41(e), M.R.Civ.P., and in an 

order dated November 9, 1994, the District Court granted Capital 

Answering's motion, dismissing First Call's complaint. The court's 

dismissal was, however, without prejudice. Capital Answering 

timely appealed, contending that the dismissal should have been 

with prejudice. 

The District Court based its determination to dismiss First 

Call's complaint without prejudice on our decision in Whitcraft v. 

Semenza (1965), 145 Mont. 94, 399 P.2d 757, and cited the following 

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language from our opinion: 

It must be borne in mind that the Rule is nothing 

more than a rule of procedure, designed to encourage 

promptness in the prosecution of actions. Dismissal 

thereunder is not based upon the absence of a claim, nor 

upon any defect in the substantive right, nor is the Rule 

a statute of limitation barring the claim after lapse of 

the specified time. While an action may be dismissed the 

claim remains. in order of dismissal is not res 

judicata, it does not constitute a bar to another suit on 

the same claim. 

Whitcraft, 399 P.2d at 759. 

Our review of the District Court's conclusions of law is plenary. 

We simply determine whether the court's interpretation of the law 

is correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 

470, 474-75, 803 P.2d 601, 603. 

Rule 41(e), M.R.Civ.P. provides, in pertinent part: 

Failure to serve summons. No action heretofore or 

hereafter commenced shall be further prosecuted as to any 

defendant who has not appeared in the action or been 

served in the action as herein provided within 3 years 

after the action has been commenced, and no further 

proceedings shall be had therein, and all actions 

heretofore or hereafter commenced shall be dismissed by 

the court in which the same shall have been commenced, on 

its own motion, or on the motion of any party interested 

therein, whether named in the complaint as a party or 

not, unless summons shall have been issued within I year, 

or unless summons issued within one year shall have been 

served and filed with the clerk of the court within 3 

years after the commencement of said action, or unless 

appearance has been made by the defendant or defendants 

therein within said 3 years. . . . 

Here, it is undisputed that the District Court properly 

dismissed First Call's complaint because the summons was not served 

within the three years specified in the Rule. Rather, the issue is 

whether the trial court correctly dismissed First Call's complaint 

without prejudice, thus allowing First Call to file another 

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complaint on its claim, so long as the statute of limitations on 

that claim had not run. 

Based upon our decision in Whitcraft, the District Court was 

compelled to rule as it did. Moreover, subsequent to Whitcraft, we 

again interpreted Rule 41(e), in a manner consistent with our 

decision in that case. In State ex rel. Equity Supply Co. v. 

District Court (1972), 159 Mont. 34, 494 P.2d 911, we stated: 

As Rule 41(e) is now written, an order of dismissal 

is a bar to another suit on the same claim, if, as here, 

the statute of limitations as well as the period provided 

for by the rule, have run. 

Equity Suuolv, 494 P.2d at 914. 

Both Whitcraft and Equity Supply contain discussions of the 

history of Rule 41(e) which we find unnecessary to reiterate here. 

Suffice it to say, that having carefully reconsidered our decisions 

in both of those cases, we now conclude that our interpretation of 

the clear and unambiguous language of the Rule was incorrect. 

In his specially concurring opinion in Equity Supply, Chief 

Justice Haswell, concisely pointed up the fallacy inherent in this 

Court's opinions in that case and in Whitcraft: 

The operative words of Rule 41(e) that are pertinent 

here provide: 

iI* * * all actions heretofore or 

hereafter commenced shall be dismissed by the 

court in which the same shall have been 

commenced * * * unless summons shall have been 

issued within one year * * *.' 

The purpose of this Rule is not only to promote 

diligent prosecution of claims once suit has been filed 

thereon, but also to bar further prosecution of lathed 

lawsuits. The Commission Note to amended Rule 41(e) 

makes this clear . . . 

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authorities cited in their briefs on appeal in support of and in 

opposition to our previous interpretations of Rule 41(e). Having 

done that, we, nevertheless, conclude that on the plain language of 

Rule 41(e), our prior interpretations of that Rule in Whitcraft and 

in Equity Supply were simply wrong. Necessarily, Whitcraft and 

Equity Supplv are overruled. 

We hold that dismissals under Rule 41(e), M.R.Civ.P. are 

dismissals with prejudice and must be given res judicata effect. 

Accordingly, we reverse the District Court's order dismissing First 

Call's complaint without prejudice and remand for entry of an order 

dismissing its complaint with prejudice. 

We Concur: