(dissenting in part).
I am unable to agree with the disposition of that part of the majority opinion which requires dismissal of the action under § 21-1-1(41) (e), N.M.S.A.1953.
The record discloses that on September 4, 1959, defendant filed a motion to dismiss the complaint filed July 31, 1959. The motion to dismiss was argued, and written briefs requested and considered by the court. An order was entered August 4, 1960, eleven months later, overruling the motion to dismiss. The consideration of the motion and order entered August 4, 1960 defeated automatic dismissal. Ringle Development Corp. v. Chavez, 51 N.M. 156, 180 P.2d 790; Vigil v. Johnson, 60 N.M. 273, 291 P.2d 312.
Our dismissal rule, differing materially from the statutes of many states, does not require actual trial of the cause with the two-year period prescribed by the rule, but only that some action be taken to bring the case to its final determination within two years after filing of the complaint. Nevertheless, as early as Ringle, this court construed the rule to permit the tolling of the period for certain reasons, and tolling is recognized by the majority in this case. It was there said that certain enumerated exceptions would toll the period provided by the rule, among them that “for good reason, the plaintiff is unable, for causes beyond his control, to bring the case to trial” until the order determining the motion to dismiss was entered. Ringle Development Corp. v. Chavez, supra; Vigil v. Johnson, supra.
Notwithstanding the attempt of the majority to distinguish Vigil, I believe the language of the majority opinion has the effect of overruling that decision. On the facts, I find no valid ground for distinction between Vigil and the instant case. The facts in Vigil were that on May 28, 1951, a motion was filed to make a complaint filed May 7, 1951 more definite and certain. Plaintiffs’ response thereto was filed June 15, 1951. A motion to dismiss under Rule 41(e) was filed June 8, 1953, and was held to be premature. This court there said:
“The response, filed June 15, 1951, was sufficient to defeat automatic dismissal. It was beyond the control of appellees to bring the case to a close until the response was filed; and it is clear that the two year period had not expired by seven days.”
I do not agree with the reasoning of the majority that Vigil must have been based upon the theory that there was actually no complaint until filing of the response to the motion to make more definite and certain. As I view Vigil v. Johnson, supra, the language means just what it says: “It was beyond the control of appellees to bring the case to a close until the response was filed.” Thus, either the inability of plaintiff to bring the case to a close constituted an exception to the operation of the rule, or operation of Rule 41(e) was tolled during such time. Ringle Development Corp. v. Chavez, supra. But, even if the theory of the majority be accepted, it is equally applicable in the instant case, and it must likewise be held here that there was no complaint until the ruling of the court on the motion to dismiss, and the motion under Rule 41(e) was premature. I believe that the exception announced in Ringle and applied in Vigil should not be changed.
For the reasons stated, I am not able to agree with the majority insofar as the opinion requires dismissal of the action under Rule 41(e). To that extent, I dissent. I concur with the majority that the action of the trial court in dismissing the action as to Walter M. Parker should be affirmed.