No, 12214

INTHE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA ex

### rel, EQUITYSUPPLY COMPANY, Petitioner,

THE DISTRICT COURT OF THE ELEVENTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, inand 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:

### MAR9

# -1972

### Mr. JusticeWesley Castles delivered the Opinion of the Court.

This 

### is an original proceeding inwhich relator Equity Supply Company seeks a 

### writof supervisory control directed tothedistrict court of the eleventhjudicial district, Flathead County, Hon. Robert S. Keller presiding. Relator 

### is one of the defendants named in Cause No. 21,801 inFlathead County filedMarch 

### 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, inLincoln 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 inFlathead 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 fiveyears after the accident. On April 3, 1969, defendant Equity Supply Company appeared by motion toquash summons and todismiss the action, pursuant to Rule 41(e), M.R.Civ.P. Briefs were filed and on March 15, 1971, thepresiding judge granted themotion for the

reason that summons was not issued within one year of the date of commencement of the action. The districtjudge 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 This statutewas repealed in 1961, concurrently with the adoption of the Rules of Civil Procedure.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 shallhave 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 statutenot only provided for a dismissal if summons had not been issued within one year, but it also provided for a dismissal if serviceand return of summons had not been made within threeyears, asRule 41(e), in its 1963version attempted to state. Rule 41(e), as amended in 1965, 

### is, for the part that 

### is relevant tothis 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 statutewas not repealed when the rules were adopted and in facthas never been repealed as such, but was superseded by Rule 41(e) asamended by Supreme Court Order 10750. Rule 41(e), in 

### its 1963version, 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 tothe 1965 amendment, it also incorporates Section 93-4705(7), RCM, 1947, now repealed,

1IIt 

### is now clear that allactions now commenced shallbe dismissed by the Court: 

### "1. Unless summons shallhave been issued within one year, or, "2. Unless summons issued within one year shallhave been served and return made and filed with the Clerkwithin three years after the commencement of the action, or, "3. Unless appearance has been made by the defendant therein within said threeyears. "The complaint in this actionwas filed on January 27, 1967, and ifa summons were then issued, it has not been returned, insofar as the filereflects. 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 issuewithin 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, anothernew counsel appeared and on March 22, 1971, a complaint

was filedasa new action, but identical in allways to the previously dismissed action. After service of process on relator

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

asaffirmative defenses section 93-2605, R.C

### .M. 1947, (the three year statuteof limitations), and resjudicata by reason of the dismissal of Cause No. 18,685. Atthe same time,relator filed a motion for summary judgment as tothe issue of liability by reason of the affirmative defenses. On January 12, 1972, Judge Keller denied themotion for summary judgment. Again, as in the previous case, Judge Keller wrote 

### a memorandum: "Whitcraft vs. Semenza, 1965, 145Mont. 94, 97, 399 Pac 2d. 757, 

### is a case directly in point, and it clearlyholds that a dismissal under the provisions of Rule 41(e) 

### is not res judicata, does not constitutea bar toanother suit on the same claim, and 

### is not a dismissal upon the merits. "Plaintiff relies upon the provisions of Section 93-2708, RCM, 1947, toavoid the statuteof limitations, which ordinarilywould 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 theprovisions of Rule 41(e) constituted a dismissal of the complaint forneglect to prosecute the action. Cited cases, and legal authorities, aredivided on the question of whether or not the failure to issue summons 

### is a neglect to prosecute the action. Suffice it tosay that Rule 41(b) provides that a failuretoprosecute the action operates asan adjudication upon the merits, and then provides for Rule 41(e) which is a dismissal for failureto serve

### a summons, i.e., the latter cannot be a neglect toprosecute the action.11 The two memorandums of the trialjudge actually set forth the problem presented here. This Court granted an ex parte alternative order toshow cause. Return was made, briefs filed and the matter fullyargued.ela at or

### 's position 

### is that the dismissal of Cause No. 18,685 under Rule 41(e), M.R.Civ.P., for failuretohave summons issued within one year constituted "a dismissal of the complaint forneglect toprosecute the action" and therefore plaintiffs

were not entitled tothe extension of limitations provided for in section 93-2708, R.C.M. 1947. This being the case, relator reasons, the threeyear statuteof limitations provided for in section 93-2605, R.C.M. 1947, 

### is applicable toCause No. 21,801 and the motion for summary judgment should have been granted. Relator alsourges that the effect of the dismissal of Cause No. 18,685 for failuretohave the summons issued within one year was a dismissal for failuretoprosecute and operates as an adjudication upon the merits and 

### is thus resjudicata. Plaintiffs below rely on section 93-2708, R.C,M. 1947, which provides:

I IProvision 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 inany other manner than by a voluntary discontinuance, a dismissal of the complaint forneglect toprosecute the action, or a finaljudgment upon themerits, the plaintiff, or, ifhe 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. 1I Plaintiffs argue that section 93-2708 

### is a "saving statute" enabling plaintiffs to refile even though the statute of limitations had run and the firstcasehad been dismissed for failure tohave a summons issued within one year. Plaintiffs go on toargue that the only way a dismissal under Rule 41 (e)

## , M.R.Civ.P., could be an adjudication upon the merits would be ifRule 41(e) 

### is contemplated in the language of Rule 

### 41(b) as

a ''failure toprosecute".Asnoted in the second memorandum of Judge Keller, the

case of Whitcraft v. Semenza, 145Mont. 94, 96, 399 P.2d 757, contains language concerned here. Also, asnoted inJudge ~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 tothe amendment in 1965 of Rule 41(e), this Court held thatwhere 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 toplace a limitation of three years on service of summons for allpurposes. In a somewhat parallel situation ashere involved, the Court inBaldwin said: "The affidavit filed by the plaintiff administrator in the district court indicates changes of counsel and apparent lack of diligence in effecting the serviceby counsel. These matters areunfortunate, particularly here where the statuteof limitationshas run against the claim for relief, but there aretwo sides inalllitigation. Here thewreck occurred December 17, 1956. On December 20, 1962, the defendant was served with process calling upon him todefend an action for damages which had occurred sixyears 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'beexcused 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. Atpresent Rules 4 C(l), 41(e), Section 93-3002, R.C.M. 1947, and Rule 12(b) allneed tobe 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 1961SessionLaws."This amendment renders Section 93-3002, R.C.M. 1947, unnecessary, and that section superseded and added toTables B and C." InWhitcraft the Court held that the raising of failure toserve summons within threeyears after issuance could be by motion rather than pleaded; and that the failureto serve the

summons within three years could be raised asa bar even though section 93-4705, R.C.M. 1947, had been repealed; and even though Rule 41(e) had not been adopted tocover the situationpresented. InWhitcraft the following language appears: 

### "It must be borne inmind 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 statuteof limitation barring the claimafter lapse of the specified time. While an actionmay be dismissed the claim remains. An order of dismissal 

### is not res judicata, it does not constitutea bar to another suit on the same claim. It 

### is a fundamental rule that a judgment 

### is not resjudicata unless it 

### is on the merits, and a dismissal under the Rule 

### is not." This language makes Judge ~eller 

### 's feeling of obligation understandable. However, in the context inwhich itwas used, as a prelude to the discussion of ~hether .Rble 41(e) was then tobe used retrospectively as contended by the appellant inWhitcraft, the language 

### is limited tothat context. AsRule 41(e) 

### is now written, an order of dismissal 

### is

a bar to another suit on the same claim, if, ashere, the statute of limitations as well as the period provided for by the rule, have run. Section 93-2708, R.C.M. 1947, asquoted previously, has been limited tothat extent by the application of Rule 41. Aswe 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 theCourt. Having found that section 93-2708, R.C.M. 1947, does not operate tosave a claimwhere the failuretohave summons issuedwithin 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. JusticeFrank 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 toanother suit by the same parties on the same claim only if the statuteof limitations, as well as the period provided inRule 41(e), has run. In my view, a dismissal under Rule 41(e) operates independently of any statuteof limitations, and a dismissal thereunder for failure tohave

a summons issued within one year bars a subsequent action between the same parties on the same claim. The operativewords of Rule 41(e) that arepertinent here provide:

'I* 

# ** allactions heretofore orhereafter commenced shallbe dismissed by the court inwhich the same shallhave been commenced 

# *** unless summons shallhave been issued within one year

# **

# *." The purpose of this Rule 

### is not only to promote diligent prosecution of claims once suithas been filed thereon, alsotobar further prosecution of lached lawsuits. The Commission Note toamended 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 toissuance and service of summons

# **

# *. This amendment incorporates the laches provisions of Section 93-4705(7),R.C.M. 1947, which was repealed by Chapter 13of the 1961SessionLaws

# **

# *." (Emphasis added) This purpose is completely defeated by interpreting Rule 41(e), M.R.Civ.P. 

## , topermit 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 themajority opinion fromWhitcraft 

### v. Semenza, 

### 145Mont. 

### 94, 399 P.2d 

### 757, decided prior to the amendment of Rule 

### 41(e)

## , which I believe to be atvariance 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 tohave summons issued within one year ended further prosecution of the same claim irrespective of the statuteof limitations.

Associate Justice.