THE STATE OF NEVADA, on relation of its Department of Highways, Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, et al., Respondents
State ex rel. Department of Highways v. Eighth Judicial District Court
Mowbray, C. J., and Manoukian, J., concur.
THE STATE OF NEVADA, on relation of its Department of Highways, Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, et al., Respondents.
THE STATE OF NEVADA, on relation of its Department of Highways, Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, et al., Respondents.
No. 11462
October 29, 1979
601 P.2d 710
Richard H. Bryan, Attorney General, and Norman C. Robison and Ernest Adler, Deputy Attorneys General, for Petitioner.
John F. O’Reilly, of Las Vegas, for Respondents.
OPINION
By the Court,
Thompson, J.:
In this action to recover damages for personal injuries the district court allowed the plaintiff to amend her complaint to name the State of Nevada a party defendant in place of Doe 1. The State thereupon moved to dismiss contending that it was added as a party defendant rather than substituted, and that the two year statute of limitations had run against the claim for relief alleged against the State.
The issue then before the court was whether the amendment was a substitution of a party for the originally named Doe 1, or the addition of a party defendant. If a substitution, the State would be deemed a party to the action from its commencement and the bar of limitations would not be available as a defense since action was commenced before the limitation period had run. NRCP 10(a); Servatius v. United Resort Hotels, 85 Nev. 371, 455 P.2d 621 (1969); Hill v. Summa Corporation, 90 Nev. 79, 518 P.2d 1094 (1974) (concurring opinion). On the other hand, if the amendment amounted to an addition of a party defendant, the statute of limitations would bar relief since the amended complaint was not filed until more than three years had passed following the accident. Garvey v. Clark County, 91 Nev. 127, 532 P.2d 269 (1975); Knight v. Witco Chemical Co., 89 Nev. 586, 517 P.2d 792 (1973).
We noted in Hill v. Summa Corporation, supra, that NRCP 10(a) does not refer to a party who is not known, but rather to a party whose name is not known. It is designed to embrace the case where the plaintiff has in mind the identity or description of the fictitiously named defendant but not his true name.
The record does not reflect that the plaintiff knew that the State was involved but did not know its name. The opposite is the case. The plaintiff did not know that the roadway where the accident occurred was under state control until a codefendant, Clark County, filed a motion to dismiss the claim asserted against it, which motion was filed more than two years after the accident happened. Thus, the identity of the State as a defendant was not known to the plaintiff until after limitations had run. The State's motion to dismiss should have been granted. Knight v. Witco, supra.
An appeal does not lie from an order denying a motion to dismiss. Thus, we must decide whether extraordinary relief is appropriate. Although mandamus normally is not available to review discretionary acts of a district court, Wilmurth v. District Court, 80 Nev. 337, 393 P.2d 302 (1964), statute provides that the writ may issue to compel the performance of an act which the law especially enjoins as a duty resulting from office. NRS 34.160. When the right to a dismissal is clear, the extraordinary relief of mandamus is available to compel dismissal. Smith v. Gabrielli, 80 Nev. 390, 395 P.2d 325 (1964); Dzack v. Marshall, 80 Nev. 345, 393 P.2d 610 (1964).
We order that a peremptory writ of mandate issue requiring the respondent court to dismiss this action against the State of Nevada.
Mowbray, C. J., and Manoukian, J., concur.
NRCP 10(a): ". . . . A party whose name is not known may be designated by any name, and when his true name is discovered, the pleading may be amended accordingly."
In denying the State's motion to dismiss the district court relied upon our opinion in Garvey v. Clark County, 91 Nev. 127, 532 P.2d 269 (1975). In Garvey the plaintiffs conceded that they consciously elected not to name the State a defendant when suit was commenced. Nothing of that sort appears in the case at hand.