James H. Garcia, and O'Reilly & Huffsteter, Phoenix, for appellant.
Kramer, Roche & Perry, Phoenix, for appellees.
LEVI S. UDALL, Justice.
Frank Anguiano, on March 26, 1952, commenced civil action No. 71601 in the Superior Court of Maricopa County, claiming damages for injuries allegedly sustained in a motor vehicle accident. Defendants' motion for security for costs was granted without opposition. Plaintiff wholly ignored the order and failed to comply therewith. Defendants moved under Rule 41(b), Rules of Civil Procedure, Sec. 21-916, A.C.A.1939, to dismiss for failure to comply with the order of the court. This motion was unopposed, and the court granted it, thus dismissing the action. This order of dismissal did not state that the same was without prejudice. Plaintiff has never attempted to vacate or set aside this order, nor has he made any attempt to give security for costs.
Instead, on November 1, 1952, he commenced the present action No. 73899, in the same court, his claim for relief being identical with that in the first action. Defendants answered, alleged the prior action had been dismissed, then moved for summary [76 Ariz. 247] judgment, contending that such prior involuntary dismissal was an adjudication on the merits, under Rule 41(b). The motion was granted and formal judgment entered, so that this appeal could properly be taken. See, Meloy v. Saint Paul Mercury Indemnity Co., 72 Ariz. 406, 236 P.2d 732.
The parties agree that this appeal presents but one question, viz.:
'Where the court dismisses an action for failure of the plaintiff to give security for costs, as ordered by the court, and the order of dismissal does not recite that it is 'without prejudice', is such dismissal an adjudication upon the merits as defined by Section 21-916 of the Code?'
Rule 41(b) provides:
'Involuntary dismissal--Effect thereof.--For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue, operates as an adjudication upon the merits.'
Plaintiff contends this rule does not apply to all involuntary dismissals, but only to dismissals relating to the trial of the cause or the merits thereof, and that dismissals entered during the preliminary stages of the proceedings, though involuntary, are not on the merits. He argues that the whole pleading reform seen in recent years was meant to do away with harsh and unjust technical rules of pleading and procedure, and requires a decision of all causes upon their merits, and further argues that if Rule 41(b) applies to all involuntary dismissals, cases will be tried upon technicalities rather than the merits.
Defendants contend that Rule 41(b) is unambiguous and the court should take the words thereof at face value and give to them a literal interpretation, and they argue that the mere fact this rule is found in the chapter on trials in the Rules of Civil Procedure does not limit its application to orders made at or after trial on the merits, Cf. Morenci Southern R. Co. v. Monsour, 24 Ariz. 49, 206 P. 589.
In our effort to determine whether the rule applies in this present situation, we have examined most of the reported cases in point from this and other jurisdictions. In four instances this court has been faced with an appeal from a judgment entered after the lower court granted a motion to [76 Ariz. 248] dismiss, and has applied or interpreted Rule 41(b), see Craft v. Cannon, 58 Ariz. 457, 121 P.2d 421; Gillespie Land & Irrigation Co. v. Buckeye Irr. Co., 69 Ariz. 367, 213
P.2d 902; Chadwick v. Larsen, 75 Ariz. 207, 254 P.2d 1020; and Stuart v. Castro, Ariz., 261 P.2d 371.
We have found three cases which support plaintiff's theory. In Russo v. Sofia Bros., Inc., D.C.,44 F.Supp. 779, Id., D.C., 2 F.R.D. 80--a district court case--plaintiff filed a civil action upon a deceit theory. Defendant's motion to dismiss the complaint for failure to state a claim was granted, and the order granting the motion was silent about the right to plead over or amend the complaint. Judgment of dismissal was entered which said nothing of the right to amend. Plaintiff then moved the court for leave to file an amended complaint which corrected the defects in the former pleading and stated a claim. The court discussed the application of Rule 41(b) to this fact situation, emphasized the fact that Rule 41 appears in Chap. 6, Fed.Rules ...