Summary
interpreting another exception listed in C.R.C.P. 41(b)
Summary of this case from MARKET ENG'G CORP. v. MONOGRAM SOFTWAREOpinion
No. 70-129
Decided June 2, 1971.
Plaintiff moved for relief from judgment dismissing complaint, which judgment had been entered more than three years prior to the filing of plaintiff's motion. From denial of the motion, plaintiff appealed.
Writ Dismissed
1. PRACTICE AND PROCEDURE — Dismissals — Rules — Without Prejudice. R.C.P. Colo. 41(b)(1) makes it clear that dismissals of an action under R.C.P. Colo. 3(a) are dismissals without prejudice and do not operate as an adjudication on the merits.
2. Dismissal — Failure to File Complaint — Words — "With Prejudice" — Nullity. Where plaintiff's action was dismissed as result of her failure to file complaint within ten days after service, the words "with prejudice" in the order of dismissal are a nullity and would in no way bar a subsequent action asserting the same claim for relief as set forth in the dismissal complaint.
3. APPEAL AND ERROR — Dismissal of Action — Erroneously With Prejudice — Otherwise Proper — Writ of Error — Not Timely — Dismissed. Although order of dismissal of plaintiff's action erroneously included words "with prejudice," this dismissal of her complaint was otherwise proper and since a writ of error was not timely applied for, present writ of error, appealing denial of plaintiff's motion for relief from that order of dismissal, is dismissed.
Error to the District Court of the City and County of Denver, Honorable Edward J. Keating, Judge.
Brundage, Bauer and Cohen, William W. Downs, for plaintiff in error.
Quiat and Quiat, P.C., Alan H. Bucholtz, for defendant in error.
This is an appeal from an order denying a motion filed under R.C.P. Colo. 60(b) which sought relief from a judgment dismissing the complaint, that judgment being entered in the action more than three years prior to the filing of the motion.
Plaintiff in Error, Morehart, commenced action against National Tea Company by service of summons and complaint on June 23, 1966, and thereafter failed to file her complaint within ten days after service, as required by R.C.P. Colo. 3(a). On July 13, 1966, National Tea obtained the judgment dismissing the action for the failure to comply with the above rule. The order dismissed the case "with prejudice." On July 20, 1966, plaintiff filed her summons and complaint.
Nothing further transpired until about one year later when, in the same action, on June 12, 1967, plaintiff filed an alias complaint and alias summons which were identical to the original summons and complaint. Two days later, National Tea filed a motion to dismiss on the ground that the action had already been dismissed and no appeal had been taken from the order of dismissal. The court denied the motion on June 28, 1967, on the ground that it was deemed abandoned because no brief in support of the motion was filed. On July 7, 1967, National Tea filed its answer setting forth the prior dismissal as one of its defenses.
On July 14, 1967, defendant National Tea filed a motion for summary judgment on the ground of the prior dismissal. This motion was denied on September 20, 1967, on the ground that the court was without jurisdiction to consider any of the pleadings subsequent to the order of dismissal. On January 9, 1968, a motion for clarification of the above order was filed by plaintiff Morehart. After hearings and continuances, this motion was finally denied on November 1, 1968.
Eleven months later, on October 8, 1969, present counsel entered the case and filed the motion under R.C.P. Colo. 60(b) for relief from the judgment of dismissal entered July 13, 1966, on the ground, inter alia, that the order exceeded the jurisdiction of the court. The motion also attacked all the orders of the court subsequent to the dismissal. This motion was denied on November 18, 1969.
Morehart asserts that the entire judgment of dismissal was void. National Tea confesses that the court was without authority to dismiss "with prejudice," but asserts that the dismissal was proper and that the writ of error should be dismissed for failure of plaintiff to take a timely appeal. We agree with National Tea.
[1,2] R.C.P. Colo. 41(b)(1) makes it clear that dismissals under R.C.P. 468 Colo. 3(a) are without prejudice and do not operate as an adjudication on the merits. See Costello v. United States, 365 U.S. 265, 81 S.Ct. 534, 5 L.Ed.2d 551. Therefore the words "with prejudice" in the order of dismissal are a nullity and would in no way bar a subsequent action asserting the same claim for relief as set forth in the complaint in the present action.
[3] However, the dismissal of the within action was otherwise proper, and since the writ of error was not timely applied for, the writ is dismissed.
Writ dismissed.
JUDGE COYTE and JUDGE PIERCE concur.