CONSTANCE M. LIGHTHOUSE, Appellant, v. GREAT WESTERN LAND & CATTLE CORPORATION, a Nevada Corporation, Respondent
Lighthouse v. Great Western Land & Cattle Corp.
Zenoff, C. J., and Batjer and Gunderson, JJ., concur.
CONSTANCE M. LIGHTHOUSE, Appellant, v. GREAT WESTERN LAND & CATTLE CORPORATION, a Nevada Corporation, Respondent.
CONSTANCE M. LIGHTHOUSE, Appellant, v. GREAT WESTERN LAND & CATTLE CORPORATION, a Nevada Corporation, Respondent.
No. 6553
February 3, 1972
493 P.2d 296
Stewart, Horton & McKissick, of Reno, for Appellant.
Robert R. Herz, of Reno, for Respondent.
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 of 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.