(dissenting).
With great regret I am unable .to lend my concurrence to the opinion of the majority in this case. Rule 25(a) speaks in terms that are seemingly mandatory. Rule 6(b), however, permits the court to enlarge the period after the expiration of two years “where the failure to act was the result of excusable neglect.” The opinion considers it to be conceded that the neglect to reinstate the proceedings was excusable. Had the Rule ended there it would seem to me that the court would be authorized to entertain a motion for enlargement of the time once excusable neglect had been established. The Rule, however,' goes farther and provides exceptions, neither of which refers to Rule 25(a) (1); namely, it may not enlarge the period for taking any action under Rule 59 except as stated in subsection (c) or the period for taking an appeal as provided by law.
It is a well-established rule of statutory construction that where two provisions of a statute are in apparent conflict, the court must endeavor to reconcile them. It is also a well-established rule that where specific exceptions are stated they exclude all others, and there are persuasive and authoritative adjudications to the effect that though the word “shall” is the language of command it is not controlling but only a “test significant,” and the ends and aims of the statute must be consulted. Escoe v. Zerbst, 295 U.S. 490, 493, 55 S.Ct. 818, 79 L.Ed. 1240; West Wisconsin R. v. Foley, 94 U.S. 100, 24 L.Ed. 71.
The opinion reasons by analogy that the decision in Wallace v. United States, 2 Cir., 142 F.2d 240, 244, requires that the word “shall” must, in its present context, be given its mandatory connotation, conceding, however, that that case does not reach the present problem. The Wallace case, however, construed Rule 60(b) and not Rule 25(a) (1). The pertinent language in that Rule was. "but- in no case exceeding six months.” This phrase is so emphatic and specific as to preclude “the importation of an exception via Rule 6(b).” This emphasis on the exclusion of exceptions is not present in Rule 25(a) (1). In Mutual Benefit Health & Accident Ass’n v. Snyder, 6 Cir., 109 F.2d 469, and Burke v. Canfield, 72 App.D.C. 127, 111 F.2d 526, excusable neglect was not shown but the court nevertheless allowed the record to be filed under Rule 75(a), both cases holding that Rule 6(b) did not lift the time limit set down by section 73(g). In Ainsworth v. Gill Glass & Fixture Co., 3 Cir., 104 F.2d 83, it also was not shown that failure to permit a record to be filed was the result of excusable neglect. The court, however, allowed the record to be filed under Rule 73(a)..
Finally, the proposed revision of the rules not yet promulgated includes Rule 25 as an exception to Rule 6(b). This is done on the theory that the limit to substitution should be absolute. This leads me to the conclusion that the proposed *689revision of the rales contemplates a change in the rule rather than its clarification. I think the judgment should be reversed and the cause remanded for consideration of the plaintiff’s suit upon its merits.