Lighthouse v. Great Western Land & Cattle Corp.

Nevada Supreme Court

Lighthouse v. Great Western Land & Cattle Corp.

493 P.2d 296, 88 Nev. 55, 1972 Nev. LEXIS 391

CourtNevada Supreme Court

DecidedFebruary 3, 1972

Docket6553

StatusPublished

Cited by11 cases

This text of 493 P.2d 296 (Lighthouse v. Great Western Land & Cattle Corp.) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lighthouse v. Great Western Land & Cattle Corp., 493 P.2d 296, 88 Nev. 55, 1972 Nev. LEXIS 391 (Neb. 1972).

Pincite

Opinions

OPINION

By the Court,

Thompson, J.:

This appeal is from a summary judgment in favor of the respondent. The district court believed that our holding in Great W. Land & Cattle v. District Ct., 86 Nev. 282, 467 P.2d 1019 (1970), barred the prosecution of this case. We there held that NRCP 41(e) compelling the dismissal of an action not brought to trial within five years applies to a counterclaim as well, and prohibited the district court from proceeding to trial upon such a counterclaim. That court honored our writ, dismissed the counterclaim, but without prejudice. Its exercise [57]*57of discretion in dismissing without prejudice was not challenged by appeal in that case. Cf. Lindauer v. Allen, 85 Nev. 430, 456 P.2d 851 (1969). Since the statute of limitations had not run against the claim for relief asserted in the counterclaim, the successor in interest of the counterclaimant commenced the present action in the Second Judicial District Court asserting the identical claim.

Rule 41(e) was amended in 1964 to provide that a dismissal thereunder “is a bar to another action upon the same claim for relief . . . unless the court otherwise provides.” The amendment applies to all dismissals for want of prosecution and apparently was in response to Dubin v. Harrell, 79 Nev. 467, 386 P.2d 729 (1963), where we held that a discretionary two-year dismissal barred a subsequent action upon the same claim. It is now clear that the dismissal of an action or counterclaim not brought to trial within five years is mandatory, but that the district court retains discretion to decide whether the dismissal shall bar another action upon the same claim. Indeed, this precise point was decided in Lindauer v. Allen, 85 Nev. 430, 456 P.2d 851 (1969). There, the district court dismissed an action not brought to trial within five years and the dismissal was with prejudice. In affirming, we noted “although the district court might have ruled otherwise, it was within its discretion to dismiss the complaint with prejudice and we find no abuse of that discretion.” Id. at 437.

By appeal, the respondent could have tested the exercise of discretion by the Sixth Judicial District Court in dismissing the counterclaim without prejudice. Lindauer v. Allen, supra. It did not do so. The present action asserting the identical claim for relief is not barred.

Reversed.

Zenoff, C. J., and Batjer and Gunderson, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

OPINION

By the Court,

Thompson, J.:

This appeal is from a summary judgment in favor of the respondent. The district court believed that our holding in Great W. Land & Cattle v. District Ct., 86 Nev. 282, 467 P.2d 1019 (1970), barred the prosecution of this case. We there held that NRCP 41(e) compelling the dismissal of an action not brought to trial within five years applies to a counterclaim as well, and prohibited the district court from proceeding to trial upon such a counterclaim. That court honored our writ, dismissed the counterclaim, but without prejudice. Its exercise [57]*57of discretion in dismissing without prejudice was not challenged by appeal in that case. Cf. Lindauer v. Allen, 85 Nev. 430, 456 P.2d 851 (1969). Since the statute of limitations had not run against the claim for relief asserted in the counterclaim, the successor in interest of the counterclaimant commenced the present action in the Second Judicial District Court asserting the identical claim.

Rule 41(e) was amended in 1964 to provide that a dismissal thereunder “is a bar to another action upon the same claim for relief . . . unless the court otherwise provides.” The amendment applies to all dismissals for want of prosecution and apparently was in response to Dubin v. Harrell, 79 Nev. 467, 386 P.2d 729 (1963), where we held that a discretionary two-year dismissal barred a subsequent action upon the same claim. It is now clear that the dismissal of an action or counterclaim not brought to trial within five years is mandatory, but that the district court retains discretion to decide whether the dismissal shall bar another action upon the same claim. Indeed, this precise point was decided in Lindauer v. Allen, 85 Nev. 430, 456 P.2d 851 (1969). There, the district court dismissed an action not brought to trial within five years and the dismissal was with prejudice. In affirming, we noted “although the district court might have ruled otherwise, it was within its discretion to dismiss the complaint with prejudice and we find no abuse of that discretion.” Id. at 437.

By appeal, the respondent could have tested the exercise of discretion by the Sixth Judicial District Court in dismissing the counterclaim without prejudice. Lindauer v. Allen, supra. It did not do so. The present action asserting the identical claim for relief is not barred.

Reversed.

Zenoff, C. J., and Batjer and Gunderson, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

493 P.2d 296, 88 Nev. 55, 1972 Nev. LEXIS 391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lighthouse-v-great-western-land-cattle-corp-nev-1972.

Opinions

Related

Cite This Page — Counsel Stack