No, 12214 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA ex rel, EQUITY SUPPLY COMPANY, 

Petitioner, 

THE DISTRICT COURT OF THE ELEVENTH JUDICIAL DISTRICT OF 

THE STATE OF MONTANA, in and for the County of Flathead 

and the Honorable Robert S. Keller, a Judge thereof, 

Respondents. 

ORIGINAL PROCEEDING: 

Counsel of Record 

For Petitioner: 

Korn,Warden,Walterskirchen & Christiansen ,Kalispe11 

Merritt Warden argued, Kalispell, Montana. 

For Respondents: 

McGarvey, Morrison and Hedman, Whitefish, Montana. 

Frank B Morrison argued, Whitefish, Montana. 

Submitted: February 25, 1972 

Decided: MAR 9 - 1972 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is an original proceeding in which relator Equity 

Supply Company seeks a writ of supervisory control directed 

to the district court of the eleventh judicial district, Flathead County, Hon. Robert S. Keller presiding. 

Relator is one of the defendants named in Cause No. 

21,801 in Flathead County filed March 22, 1971, entitled Edward 

Pagel and Leona Pagel, Plaintiffs vs. Phillip Barr and Equity 

Supply Company, Defendants, wherein plaintiffs seek damages for 

personal injuries arising out of a motor vehicle collision on 

January 31, 1964, in Lincoln County. Defendant, Phillip Barr, 

has never been served with process and has not appeared in the 

action. Barr was allegedly the driver of a motor vehicle owned 

by Equity Supply Company. 

A prior identical action, Cause No. 18,685 in the same 

court in Flathead County, was filed on January 27, 1967, No 

summons was issued on the complaint in that action. On March 3, 

1969, an amended complaint was filed seeking identical damages. 

On that date summons was issued and served on the defendant, 

relator herein, on March 4, 1969, over five years after the accident. 

On April 3, 1969, defendant Equity Supply Company 

appeared by motion to quash summons and to dismiss the action, 

pursuant to Rule 41(e), M.R.Civ.P. Briefs were filed and on 

March 15, 1971, the presiding judge granted the motion for the 

reason that summons was not issued within one year of the date 

of commencement of the action. The district judge wrote the 

following memorandum with his order: 
"Section 93-4705 (7) , RCM, 1947, specifically 

provided for the dismissal of actions wherein 

summons had not been issued within one year. 

This statute was repealed in 1961, concurrently 

with the adoption of the Rules of Civil Procedure. 

Rule 41(e), which has no counterpart in the 

Federal Rules, was adopted in 1963, and it provided that unless summons shall have been served 

and return made within three years after commencement of the action, the action should be dismissed. 

Rule 41(e) was again amended in 1965, but the 1963 

rule came out of the old Section 93-4705. That 

statute not only provided for a dismissal if summons 

had not been issued within one year, but it also 

provided for a dismissal if service and return 

of summons had not been made within three years, 

as Rule 41(e), in its 1963 version attempted to 

state. Rule 41(e), as amended in 1965, is, for 

the part that is relevant to this motion, taken 

almost directly from Section 93-4705. 

"Section 93-3002, RCM, 1947, specifically provided 

that plaintiff may have summons issued within one 

year after the filing of the complaint. This 

statute was not repealed when the rules were adopted 

and in fact has never been repealed as such, but was 

superseded by Rule 41(e) as amended by Supreme Court 

Order 10750. Rule 41(e), in its 1963 version, was 

amended to its present version by Supreme Court Order 

10750, i.e., the present Rule 41(e) supersedes Section 

93-3002, and based upon the commission note to the 

1965 amendment, it also incorporates Section 93-4705(7), 

RCM, 1947, now repealed, 

1 I It is now clear that all actions now commenced 

shall be dismissed by the Court: 

"1. Unless summons shall have been issued 

within one year, or, 

"2. Unless summons issued within one year 

shall have been served and return made and filed 

with the Clerk within three years after the commencement of the action, or, 

"3. Unless appearance has been made by the 

defendant therein within said three years. 

"The complaint in this action was filed on January 

27, 1967, and if a summons were then issued, it 

has not been returned, insofar as the file reflects. 

An amended complaint was filed on March 3, 1969, and 

a summons was then issued on the amended complaint. 

This was improper. No summons can issue within one 

year after the filing of the complaint, and the 

amended complaint would relate back to the date of 

the filing of the original complaint." 
During the seven year period, different counsel appeared 

both as to the original complaint and the amended complaint. 

Following the dismissal of Cause 18,685 on March 15, 1971, 

another new counsel appeared and on March 22, 1971, a complaint 

was filed as a new action, but identical in all ways to the 

previously dismissed action. After service of process on relator 

as one of the defendants, relator filed its answer setting forth 

as affirmative defenses section 93-2605, R.C .M. 1947, (the three 

year statute of limitations), and res judicata by reason of the 

dismissal of Cause No. 18,685. At the same time, relator filed a 

motion for summary judgment as to the issue of liability by 

reason of the affirmative defenses. 

On January 12, 1972, Judge Keller denied the motion for 

summary judgment. Again, as in the previous case, Judge Keller 

wrote a memorandum: 

"Whitcraft vs. Semenza, 1965, 145 Mont. 94, 97, 

399 Pac 2d. 757, is a case directly in point, and 

it clearly holds that a dismissal under the provisions of Rule 41(e) is not res judicata, does not 

constitute a bar to another suit on the same claim, 

and is not a dismissal upon the merits. 

"Plaintiff relies upon the provisions of Section 

93-2708, RCM, 1947, to avoid the statute of limitations, which ordinarily would have run in this case. 

Defendant takes the position that that statute is 

not applicable in this case since the previous dismissal of this case under the provisions of Rule 41(e) 

constituted a dismissal of the complaint for neglect 

to prosecute the action. Cited cases, and legal 

authorities, are divided on the question of whether 

or not the failure to issue summons is a neglect to 

prosecute the action. Suffice it to say that Rule 

41(b) provides that a failure to prosecute the action 

operates as an adjudication upon the merits, and then 

provides for Rule 41(e) which is a dismissal for 

failure to serve a summons, i.e., the latter cannot 

be a neglect to prosecute the action. 11 

The two memorandums of the trial judge actually set forth 

the problem presented here. This Court granted an ex parte alternative order to show cause. Return was made, briefs filed 

and the matter fully argued. 
 ela at or 's position is that the dismissal of Cause No. 

18,685 under Rule 41(e), M.R.Civ.P., for failure to have summons 

issued within one year constituted "a dismissal of the complaint 

for neglect to prosecute the action" and therefore plaintiffs 

were not entitled to the extension of limitations provided for in 

section 93-2708, R.C.M. 1947. This being the case, relator reasons, 

the three year statute of limitations provided for in section 

93-2605, R.C.M. 1947, is applicable to Cause No. 21,801 and the 

motion for summary judgment should have been granted. Relator 

also urges that the effect of the dismissal of Cause No. 18,685 

for failure to have the summons issued within one year was a 

dismissal for failure to prosecute and operates as an adjudication upon the merits and is thus res judicata. 

Plaintiffs below rely on section 93-2708, R.C,M. 1947, 

which provides : 

I I Provision where judgment has been reversed. If 

an action is commenced within the time limited 

therefor, and a judgment therein is reversed on 

appeal, without awarding a new trial, or the 

action is terminated in any other manner than by 

a voluntary discontinuance, a dismissal of the 

complaint for neglect to prosecute the action, 

or a final judgment upon the merits, the plaintiff, 

or, if he dies, and the cause of action survives, 

his representative, may commence a new action for 

the same cause, after the expiration of the time 

so limited, and within one year after such a 

reversal or termination. 1 I 

Plaintiffs argue that section 93-2708 is a "saving 

statute" enabling plaintiffs to refile even though the statute 

of limitations had run and the first case had been dismissed 

for failure to have a summons issued within one year. Plaintiffs 

go on to argue that the only way a dismissal under Rule 41 (e) , 

M.R.Civ.P., could be an adjudication upon the merits would be 

if Rule 41(e) is contemplated in the language of Rule 41(b) as 

a ''failure to prosecute". 
As noted in the second memorandum of Judge Keller, the 

case of Whitcraft v. Semenza, 145 Mont. 94, 96, 399 P.2d 757, 

contains language concerned here. Also, as noted in Judge 

~eller's memorandums, the history of Rule 41, M.R.Civ.P., is 

involved. In State ex rel. Baldwin v. District Court, 142 Mont. 

64, 68, 381 P.2d 473, decided in 1963 prior to the amendment in 

1965 of Rule 41(e), this Court held that where a summons issued 

wa s 

on May 23, 1958, butlnot served until December 20, 1962, section 

93-4705, R.C.M. 1947, operated so as to place a limitation of 

three years on service of summons for all purposes. 

In a somewhat parallel situation as here involved, the 

Court in Baldwin said: 

"The affidavit filed by the plaintiff administrator in the district court indicates changes 

of counsel and apparent lack of diligence in 

effecting the service by counsel. These matters 

are unfortunate, particularly here where the 

statute of limitations has run against the claim 

for relief, but there are two sides in all litigation. Here the wreck occurred December 17, 1956. 

On December 20, 1962, the defendant was served with 

process calling upon him to defend an action for 

damages which had occurred six years and three days 

previously. Such delay in prosecution should not 

be tolerated, and is not under our law. Whether 

or not actions of counsel selected by the plaintiffadministrator can'be excused or condoned is not 

before us in this proceeding." 

Fallowing Baldwin, Whitcraft was decided on March 5, 

1965. Rule 41(e) was amended thereafter and the Commission note 

reads as follows: 

"This clarifies and brings together the laches 

provisions with respect to issuance and service 

of summons. At present Rules 4 C(l), 41(e), 

Section 93-3002, R.C.M. 1947, and Rule 12(b) 

all need to be referred to. This amendment incorporates the laches provision of Section 93- 

4705(7), R.C.M. 1947, which was repealed by 

Chapter 13 of the 1961 Session Laws. 
"This amendment renders Section 93-3002, R.C .M. 

1947, unnecessary, and that section superseded 

and added to Tables B and C." 

In Whitcraft the Court held that the raising of failure 

to serve summons within three years after issuance could be by 

motion rather than pleaded; and that the failure to serve the 

summons within three years could be raised as a bar even though 

section 93-4705, R.C.M. 1947, had been repealed; and even though 

Rule 41(e) had not been adopted to cover the situation presented. 

In Whitcraft the following language appears : 

"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. An order of dismissal is not res 

judicata, it does not constitute a bar to 

another suit on the same claim. It is a fundamental rule that a judgment is not res judicata 

unless it is on the merits, and a dismissal 

under the Rule is not." 

This language makes Judge ~eller 'sfeeling of obligation understandable. However, in the context in which it was used, as a 

prelude to the discussion of ~hether .Rble 41(e) was then to be 

used retrospectively as contended by the appellant in Whitcraft, 

the language is limited to that context. 

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. Section 93-2708, R.C.M. 1947, as quoted previously, 

has been limited to that extent by the application of Rule 41. 

As we said in the above quoted portion of Baldwin, such delay in 

prosecution should not be tolerated, and is not under our law. 
Rule 41(e) is explicit and incorporates the laches provisions 

previously contained in sectzon 93-470>(7), R.C .M. 1947. Any 

other interpretation would make Rule 41, M.R.Civ.P., and its 

subdivisions meaningless and they would simply become technical 

defects which could be endlessly corrected upon being called to 

the attention of the Court. 

Having found that section 93-2708, R.C.M. 1947, does 

not operate to save a claim where the failure to have summons 

issued within the statutory period of limitations had occurred, 

it then follows that the order of the district court should be 

reversed and the case dismissed. 

It is so ordered. 

"7 ,c 

# 

-r--%l~'-,-,-,,,,-,------- 

Associate Justice 

Associate Justices. 
Mr. Justice Frank I. Haswell, specially concurring. 

I concur in the result reached by the majority, but 

disagree with its interpretation of Rule 41(e), M.R.Civ.P. 

The majority holds that an order of dismissal is a 

bar to another suit by the same parties on the same claim 

only if the statute of limitations, as well as the period 

provided in Rule 41(e), has run. In my view, a dismissal 

under Rule 41(e) operates independently of any statute of 

limitations, and a dismissal thereunder for failure to have 

a summons issued within one year bars a subsequent action 

between the same parties on the same claim. 

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

here provide: 

'I* * * 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, 

also to bar further prosecution of lached lawsuits. The 

Commission Note to amended Rule 41(e) makes this clear in 

the following language, quoted in part as follows: 

"This clarifies and brings together the laches 

provisions with respect to issuance and service 

of summons * * *. This amendment incorporates 

the laches provisions of Section 93-4705 (7) ,R. C.M. 

1947, which was repealed by Chapter 13 of the 

1961 Session Laws * * *." (Emphasis added) 

This purpose is completely defeated by interpreting 

Rule 41(e), M.R.Civ.P. , to permit a subsequent refiling of 

a lached lawsuit previously dismissed so long as the statute 

of limitations has not expired. Accordingly, I would directly 

overrule the language quoted in the majority opinion from 
Whitcraft v. Semenza, 145 Mont. 94, 399 P.2d 757, decided 

prior to the amendment of Rule 41 (e) , which I believe to 

be at variance with the purpose and express language of 

amended Rule 41 (e) , M.R.Civ. P. 

On the foregoing basis, I would hold that Judge ~eller 's 

order of March 15, 1971, dismissing the original suit for 

tailure to have summons issued within one year ended further 

prosecution of the same claim irrespective of the statute of 

limitations. 

Associate Justice.