No. 81-108 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

JOHN BRYMERSKI AND ALICE BRYMI3RSK1, 

Plaintiffs and Appellants, 

CITY OF GREAT FALLS, a municipal corp. 

of the State of Montana, THOMAS C. 

MATHER, SHIRLEY R. PAPPIN, Personal Representative of the Estate of Robert F. 

Pappin, 

Defendants and Respondents. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Cascade, The Honorable 

Joel G. Roth, Judge presiding. 

Counsel of Record: 

For Appellant: 

Dzivi, Conklin & Nybo, Great Falls, Montana 

For Respondent: 

Smith, Baillie & Walsh, Great Falls, Montana 

Swanberg, Koby, Swanberg & Matteucci, Great 

Falls, Montana 

Alexander & Baucus, Great Falls, Montana 

David Gliko, Great Falls, Montana 

Submitted on Briefs: September 3, 1981 

Decided: m251fi 

Filed: l!4ov 2 5 1981 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

This is an appeal by plaintiffs from an order of the 

Eighth Judicial District Court granting defendants1 motion to 

dismiss the plaintiffs1 action for failure to prosecute. We 

reverse. 

Between the summer of 1975 and the summer of 1976, defendants 

Robert and Shirley Pappin and Thomas Mather (hereinafter referred 

to as Pappin/Mather) were responsible for the construction of 

streets, the installation of curbs and gutters, and the excavation of soil near the location of the plaintiffs1 residence in 

the West Hill Addition to the City of Great Falls, Montana. 

During June and July of 1976, heavy rainfalls washed mud 

and fill dirt from a "fill" area created by Pappin/Mather into 

the plaintiffs1 yard and basement causing damage to the 

plaintiffs1 property. The plaintiffs filed a complaint against 

the defendants on July 14, 1976, seeking damages for negligence 

and for breach of a written agreement between Pappin/Mather and 

the City of Great Falls. 

On August 3, 1976, defendants Pappin/Mather filed a motion 

to dismiss, and a hearing was scheduled for September 15, 1976, 

to hear oral arguments on the motion. There is nothing in the 

record to indicate that the District Court ruled on this motion. 

On October 8, 1976, Pappin/Mather filed an answer, and on 

October 12 they filed written interrogatories. 

On November 15, the City of Great Falls filed consolidated 

motions to dismiss, to make more definite and certain and to 

strike. Oral arguments on these motions were set for December 

15, but it does not appear that these motions were ruled on by 

the District Court. Nothing further was filed in regard to this 

action until May 16, 1980. 

In January, 1979 , John McCarvel , the plaintiffs' attorney, 

became a judge and shortly thereafter he advised the plaintiffs 
to find a new attorney. 

In February of that year, the plaintiffs contacted William 

Conklin and asked him to represent them. Mr. Conklin informed 

the plaintiffs on March 6 that he would take their case, and he 

did some preliminary research during March and April. He was 

unable to find time to further proceed with the case, however, 

until May, 1980; and during the interim period one of the 

defendants, Robert Pappin, died. 

On May 16, 1980, plaintiffs filed a document to substitute 

counsel and a motion to substitute Shirley R. Pappin, personal 

representative of the estate of Robert F. Pappin, for Robert 

Pappin as a party defendant. The District Court granted the 

motion on May 29, 1980. 

Then in June plaintiffs filed answers to the Pappin/Mather 

interrogatories of 1976 and served written interrogatories on 

defendants Pappin/Mather and defendant City of Great Falls. 

In September, ~appin/Mather filed their answers to 

plaintif fs' interrogatories and also filed a motion to dismiss 

for failure to prosecute. After the motion to dismiss was filed, 

the plaintiffs deposed several individuals with knowledge of 

facts pertinent to the case. 

On November 10, a hearing was held on the Pappin/Mather 

motion to dismiss for failure to prosecute. At the hearing the 

City of Great Falls orally joined in the motion. On January 9, 

1981, the District Court issued an order granting the motion to 

dismiss, and the plaintiffs appeal. 

The plaintiffs raise the following issues on appeal: 

1. Whether the District Court erred in not considering 

the statutory time period set forth in Rule 41(e), M.R.Civ.P., 

when making its decision regarding the motion to dismiss for 

failure to prosecute. 

2. Whether the District Court abused its discretion in 

granting the motion to dismiss for failure to prosecute as the 
failure to actively prosecute the case was due to inaction on the 

part of plaintif £sf attorneys. 

3. Whether the ~istrict Court erred in granting the 

motion to dismiss for failure to prosecute as the case was being 

actively prosecuted for approximately three and one-ha1 f months 

prior to the time the motion to dismiss was filed. 

4. Whether the plaintiffs were entitled to rely on the 

local District Court custom of giving notice before dismissing 

inactive cases. 

5. Whether the District Court erred in granting the 

motion to dismiss for lack of prosecution as the notice received 

by the plaintiffs to appoint new counsel was not given in the 

specific manner prescribed by the local court rule. 

6. Whether the District Court erred in refusing to admit 

certain of plaintiffsf exhibits into evidence at the hearing on 

the motion to dismiss for failure to prosecute. 

We find that only the third issue needs to be addressed in 

reaching a decision in this case. 

The rule of civil procedure which governs the dismissal of 

an action for failure to prosecute is Rule 41(b), M.R.Civ.P. It 

provides in part as follows: 

"For failure of the plaintiff to prosecute . . . a defendant may move for dismissal of an action II ... 

In Montana the law is well established that an action may 

be dismissed for failure of the plaintiff to prosecute if the 

action is not prosecuted with due diligence, absent a sufficient 

showing of excuse. Calaway v. Jones (1978), 177 Mont. 516, 582 

p.2d 756, and cases cited therein. 

It is also well established in Montana law that it is 

within the sound discretion of the trial court to dismiss an 

action for failure of the plaintiff to prosecute. Calaway, 

supra, and cases therein cited. We agree with the Colorado Court 

of Appeals, however, in that "[the trial courtfs] discretion is 
not without bounds . . . and it must be borne in mind that courts 

'exist primarily to afford a forum to settle litigable matters 

between disputing parties. " Farber v. Green Shoe Mfg. Co. 

(1979) , 42 Colo.App. 255, 596 P.2d 398, citing Mizar v. Jones 

(1965) 157 CO~O. 535, 403 P.2d 767. 

In this case the plaintiffs had been actively prosecuting 

their case for over three and one-half months prior to the time 

the defendants Pappin/Mather filed their motion to dismiss for 

failure to prosecute. 

We adopt the rule that a motion to dismiss for failure to 

prosecute will not be granted if the plaintiff is diligently prosecuting his claim at the time the motion is filed, even if at 

some earlier time the plaintiff may have failed to act with due 

diligence . 

Support for this position is found in several jurisdictions. See First National Bank of Fairbanks v. Taylor (Alaska 

1971) 488 P. 2d 1026; Farber, supra; Ayers v. D. F. Quillen & 

Sons, Inc. (1963), 55 Del. 481, 188 A.2d 510; Spiegelman v. Gold 

Dust Texaco (1975) , 91 Nev. 542, 539 P.2d 1216; Rorie v. Avenue 

Shipping Co. (Tex.Civ.App.l967), 414 S.W. 2nd 948. 

If a plaintiff has actively resumed the prosecution of 

a case, the policy favoring the resolution of a case on its 

merits is more compelling than the policy underlying Rule 41(b) 

which is to prevent unreasonable delays. 

We hold that the motion to dismiss for failure to prosecute was untimely in this case even though the defendants claim 

to have been actually prejudiced by the delay in prosecution due 

to the death of defendant Robert Pappin during the period of time 

plaintiffs were not actively prosecuting the case. 

We note first of all that nearly everyone involved in the 

development of the Pappin/Mather project is still available to 

testify, including the city engineer, Pappin/Matherls project 

engineer, the contractor's job superintendent, as well as Mr. 
Mather and Mrs. Pappin. Also, various records and files concerning the project are available as evidence. Moreover, Mr. 

Pappin died several months before the plaint iff s resumed active 

prosecution of this case, and no objection came from the defendants until some three and one-half months after active prosecution had commenced. 

For the foregoing reasons, we reverse the decision of the 

District Court and remand the case for trial. 

Chief Justice 

We concur: