(dissenting). The order of the common pleas court dismissing without prejudice the action which the plaintiff had commenced in that court was not appealed, and became final. That final order could not properly be attacked collaterally in the circuit court.
The action subsequently commenced by the plaintiff in the circuit court was a separate, independent action; it was not an appeal from the dismissal without prejudice by the common pleas court of plaintiff’s action earlier filed in that court.
The circuit judge sat in the circuit court action as a nisi prius, not as an appellate judge. The legal effect of the dismissal without, prejudice by the common pleas court of plaintiff’s common pleas action on his subsequently filed circuit court action —whether the common pleas dismissal barred the later circuit action — depends on the meaning and legal significance of the order entered by the common pleas court, not on what the circuit judge or we might think would be sound judicial policy if we were sitting as common pleas judges and deciding as common pleas judges whether to make a dismissal one with or without prejudice.
It would be a far-reaching change in present law if final orders of a court of record can be collaterally attacked in a separate, independent action. It would be almost as radical a change to require a judge — here a common pleas court judge — to dismiss with prejudice whenever a plaintiff fails diligently to prosecute his action or disobeys a discovery order, thereby eliminating any case-by-case *559exercise of discretion or judgment by the judge. Nor should such an enormous change in existing precedent and in the legal significance attaching to a without-prejudice dismissal be brought about deftly by total elimination — during the period preceding as well as after disobedience to a discovery order — of the tolling (appertaining to pendency of suit) of the statutes of limitations.1
I
The majority affirm the circuit judge’s dismissal of plaintiff’s circuit court action stating
—the "effect” of plaintiff’s failure to answer defendant’s written interrogatories in the earlier common pleas action was "squarely before the Wayne circuit judge”;
—the circuit court dismissed the action filed in that court "because” plaintiff’s lack of diligence in prosecuting "this cause”, indicated by his "wilful refusal to comply with the common pleas discovery order, forfeited any right to rely on the tolling statute”. (Emphasis supplied.)
The circuit judge filed neither opinion nor findings. His dismissal order makes no reference either to the common pleas action, the interrogatories, the common pleas discovery order, or plain*560tiff’s diligence or lack of diligence in prosecuting the action. The circuit court dismissal order provides: "[I]t appearing that the cause is barred by the statute of limitations” the defendant’s motion to dismiss the circuit court action with prejudice is granted.
The majority opinion advances an argument which the defendant himself expressly declined to urge upon this Court. The following passage is from the defendant’s brief:
"Plaintiff-appellant erroneously assumes that the defendant-appellee is basing his motion to dismiss on a belief that the order of the common pleas court dismissing the original cause should not have been without prejudice. He also is mistaken when he further assumes that the circuit court based its granting of defendantappellee’s motion to dismiss on the same belief. As plaintiff-appellant himself admits, the circuit court gave no basis on the record for its granting of the motion.”
II
The order entered by the common pleas court dismissing the action filed by the plaintiff in that court reads:
"Plaintiffs having failed to file answers to interrogatories as directed by the court on January 19, 1971, said cause is hereby dismissed without prejudice.”
The January 19, 1971 order of the common pleas court so adverted to required the plaintiff to answer the interrogatories not later than February 3, 1971; the common pleas without-prejudice dismissal order quoted above was entered on that date, February 3, 1971.
The rules of the Common Pleas Court of Detroit do not provide concerning the consequences flow*561ing from entry of an order of dismissal.2 These common pleas rules do provide, however, that "[i]n all matters not herein provided for, or not expressly prohibited or specified by statute, the Michigan Court Rules shall govern”. Rule 39, Rules of the Common Pleas Court of Detroit.
The general court rule concerning involuntary dismissals (GCR 1963, 504.2) provides in part:
"For failure of the plaintiff 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. * * * Unless the court in its order for dismissal otherwise speciñes, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, operates as an adjudication upon the merits.” (Emphasis supplied.)
The common pleas court dismissal order did "otherwise specif[y]”. It specified that the dismissal was without prejudice. Accordingly, that dismissal did not operate as an adjudication upon the merits —it is not res judicata. Since this common pleas dismissal order was not appealed it has become final. It may not be collaterally attacked.
Ill
The circuit court did not claim, and it is beyond the power of this Court to vest it with the power to change a dismissal entered by the common pleas court from a dismissal without prejudice to one with prejudice. This Court may not properly bring about such a complete reversal in the meaning *562and legal effect of an order entered by the common pleas court.
The "effect” of plaintiff’s failure to answer the written interrogatories was not before the circuit court. The circuit court was not sitting as an appellate court; it was not reviewing the action of the common pleas court. The only question before the circuit court was the meaning and legal effect of the final — no longer appealable or reviewable— order entered by the common pleas court.
Even if the plaintiff was not diligent in prosecuting his common pleas action, even if he willfully refused to comply with the common pleas discovery order and even if — as the majority urge — the circuit judge dismissed plaintiff’s action for lack of diligence and noncompliance with the common pleas discovery order, it simply was beyond the power of the circuit judge to change the meaning and legal significance of the order entered by the common pleas court.
IV
Green v Wayne Soap Co, 33 Mich App 74 (1971), is somewhat analogous. An action commenced in the common pleas court was dismissed for lack of progress. Thereafter the plaintiff commenced an action in the Wayne County Circuit Court. Our Court held that the common pleas no-progress dismissal operated as an adjudication upon the merits and, therefore, the dismissal established the defense of res judicata. The Michigan Supreme Court peremptorily reversed our Court’s decision and remanded the cause to the Wayne County Circuit Court for trial. See Green v Wayne Soap Co, 385 Mich 785 (1971). The no-progress dismissal order entered in that case simply provided, "Dis*563missed”, without any indication whether the dismissal would be with or without prejudice. The instant case is even clearer because here indisputably the common pleas dismissal was without prejudice.
Stewart v Michigan Bell Telephone Co, 39 Mich App 360, 369 (1972), is entirely in point. There the first action, commenced in the Macomb County Circuit Court, was, as here, dismissed without prejudice. The second action was commenced a year and a half later in the Wayne County Circuit Court. We held that the statutes of limitations were tolled for the period of time that the Macomb County Circuit Court had jurisdiction of the defendants. We went on to reject the contention of the defendants in that case that "the tolling statute should not apply to the instant case because the former suit was dismissed based upon a lack of diligence on the part of plaintiffs to prosecute the action”. We declared: ’’The dismissal without prejudice in the Macomb County Circuit Court case cannot be collaterally attacked in the instant case”. (Emphasis supplied.)
I would remand for trial because the circuit court could not properly entertain a collateral attack on the order entered by the common pleas court.
The Revised Judicature Act provides that the statutes of limitations are tolled during the pendency of suit. See MCLA 600.5856; MSA 27A.5856. The committee note states:
"In the event of the dismissal, on some ground other than on the merits (as for example — lack of jurisdiction over the subject matter) of an action in which jurisdiction over the defendant is acquired, the period of time from the time of service or the acquisition of jurisdiction over the defendant until dismissal will not count as a part of the time of limitation, for during such time the statute has been tolled”. See 34 MCLA p 945; 23 MSA p 136.
As previously indicated, the action of the common pleas court in making the dismissal without prejudice had the effect of making the dismissal one not on the merits.
The only provisions in the common pleas court rules concerning dismissals are to be found in Rule 16. This rule is mostly concerned with no-progress dismissals and the reinstatement of actions dismissed for lack of progress. See Rule 16, Rules of the Common Pleas Court of Detroit.