(concurring in result) .
Since this court authoritatively may interpret its own rules, and since a majority of the court has concurred in the opinion of Mr. Justice CROCKETT, I concur in the result, but not in the reasoning by which it is reached.
Rule 12 (k) clearly makes dismissal mandatory if the cost bond is not filed within a month of notice given and motion to dismiss is filed, and 41(b) provides that unless the court otherwise specifies, a dismissal operates as an adjudication on the merits, which, of course, is with prejudice. Here the court did not specify otherwise, save to dismiss with prejudice, in a case where plaintiff utterly failed to explain its non-adherence to the rule and why it delayed for more than 6 weeks the filing of such bond. Nevertheless, we now hold that the rules, without specifically saying so, really mean that if the court dismisses with prejudice, or without comment, it abuses its *279discretion if the cost bond is filed any time before a motion to dismiss has been made. A companion case pending in this court1 reaches the same result where the bond was filed after the motion to dismiss. It would follow that the same result would be reached, whether the bond was filed before or after argument on the motion, and since we require the plaintiff to give no explanation whatever for the default or delay, it would appear that the rule has disappeared except as an instrument of harrassment and expense to one of our own resident defendants at the hands of another jurisdiction’s nonresident plaintiffs.
There were no “ifs” in the Rules when first written, although we could have put some in and prevented this appeal, and it is not unreasonable, therefore, that the defendant may have anticipated, spent its money in urging and arguing that it was entitled to a dismissal with prejudice without any “ifs” being incorporated in the Rules.
Whether dismissal is with or without prejudice, or without comment, the rules certainly must contemplate that any such dismissal shall be in the sound discretion of the court, subject to upset, however, where there has been a clear abuse of discretion. In this case plaintiff made no explanation for the default or delay. It is difficult, under such circumstances, to charge the lower court with an arbitrary abuse of ■discretion.
The main opinion, in support of its conclusion and as a part of the law of the case, asserts that the general philosophy of the new Rules is that liberality should be indulged “to secure the just, speedy and inexpensive determination of every action.” Such philosophy hardly has applicability to this case. A speedy determination here would have been dismissal for failure to adhere to the understandable language of the rules, thus ending the matter. The plaintiff in this case ha9 prevented a speedy determination by its own default and delay, by inviting demand for security, by delaying the filing thereof for 6 weeks, by provoking a motion to dismiss and an argument thereon, and by appealing to this court after losing in the lower court. An inexpensive and just determination of this case would have resulted in its demise for want of nurture in ignoring the simple language of the rules. Rather, the plaintiff by default and delay, has put the defendant to the unrecoverable expense of paying counsel for preparing, serving, filing and arguing the merits of 1) a notice to furnish a cost bond, 2) a motion to dismiss for failure to so furnish such bond, and 3) the defense of an appeal to this court, pleadings, brief and all. The philosophy of providing a just, speedy and inexpensive determination of every action seems further removed from this case when we add to defendant’s previous injury the imposition of unrecoverable costs on appeal, in a case *280where the rules, in plain, simple language, seem to support defendant’s position, until we read into them via this decision, something which the writer believes is not there. At least costs should not be awarded against defendant here. I believe we should recognize the infirmities in the rule by officially adopting another in the usual way, and not by way of decision at the expense of the defendant, who, so far as the language of the rules is concerned, had every reason to believe his interpretation thereof was correct.
WORTHEN, J., concurs in the views expressed by HENRIOD, J.. See Kemper v. Clarite Battery, Inc., 2 Utah 2d 280, 272 P.2d 194.