(Concurring in remand, but urging further proceedings, rather than entry of judgment for plaintiff.)
I am in agreement that the judgment should be vacated. But I see the problem as falling within a different section of the Waiver of Immunity Act,1 and I think that *520the interests of justice require that the case be remanded for trial, rather than for entry of judgment for the plaintiff.
As noted in the majority opinion, the defendants filed a motion to dismiss six days after the complaint was filed. In their memorandum in support of that motion, the position asserted by the defendants was that at a hearing before the Prison Grievance Committee they presented a receipt for his property signed by the plaintiff. Thereafter, the plaintiff himself filed a motion for summary judgment. While any such motions (particularly defendants’ motion to dismiss) remained pending, and until ruled upon by the court, the defendants would have no way of knowing whether their motion to dismiss would be granted and thus obviate any purpose in responding to the requests for admissions or answering interrogatories.2 On the other hand, only if their motion had been denied would there have been any useful purpose served in filing such answers. Further, when the court finally did grant their motion to dismiss, it would then have been but an exercise in futility to file the answers.
I am unable to agree with trial court’s the dismissal of the action on the ground of sovereign immunity. It is undoubtedly true that prisoners are under some restrictions resulting from their self-caused incarceration and should not be afforded any undue advantages in bringing suits against the authorities charged with the responsibility of their incarceration.3 Nevertheless, they should be dealt with fairly and honestly; and when they deliver personal property to prison authorities for safe keeping, the latter should discharge that responsibility, or to make due accounting therefor.4 In such situations, even if there is not an express promise made to return the valuables, there arises an implied contract to do so. Section 63-30-5, U.C.A. 1953, provides that immunity is waived “ . . . as to any contractual obligation and actions arising out of contractual rights or obligations shall not be subject to [the procedural requirements of the act] . . . .” Consequently, inasmuch as plaintiff’s claim for recovery is grounded upon contractual rights, it should be maintainable under that section.
Notwithstanding that conclusion, it seems to me that the main opinion deals with the defendants unfairly and that there may well be a miscarriage of justice in ordering judgment entered against them without affording them an opportunity to proceed with their defense. Now this Court has determined that the trial court was in error in dismissing the action, the case is not ripe for summary disposition on either side, because there exists a dispute as to the essential issues which must be resolved in order to arrive at a proper judgment. I would remand to the district court for that purpose.
. Sec. 63-30-5, U.C.A.1953. Though I disagree with the holding of Madsen v. State, Utah, 583 P.2d 92 relied on in the main opinion, I recognize that that three to two decision is now the law of this state. To avoid extended and repetitious discussion, I refer to the dissenting opinion therein and to the cases of Sheffield v. Turner, 21 Utah 2d 314, 445 P.2d 367, and Obray v. Malmberg, 26 Utah 2d 17, 484 P.2d 160. Therein is explained the necessity and desirability of affording sovereign immunity both to public officials, and to those who assist them, in the good faith performance of their duties, and the invidious discrimination which results from allowing that protection to the former and not to the latter. However, from what is said herein, I do not see the instant case as involving that problem.
.See 61 Am.Jur.2d 755 wherein the text states that whether the pendency of a motion extends the time for further pleading or other action in a case depends upon the purpose or character of the motion. If the motion challenges the jurisdiction of the court, or otherwise affects the right of the plaintiff to proceed, the time should be extended until the court rules thereon.
. See statement in Whisnant v. Byrd, Tenn., 525 S.W.2d 152.
. As to recognition of the right of prisoners to sue prison officials for confiscation of their personal property see Diamond, etc. v. Thompson, etc., 523 F.2d 1201 and cases therein cited.