(dissenting).
I cannot permit this opinion to be filed without noting my disagreement. Although I was not a member of the panel that participated in the case, I do this so that the record may show my feeling that our precedents are being departed from without overruling them.
I do not propose to set forth all of the cases holding that the showing of diligence to obtain final disposition of a case must be in the record. The line of cases so holding is unbroken, starting with Ringle Development Corporation v. Chavez, 51 N.M. 156, 180 P.2d 790, decided in 1947, down to and including Reger v. Preston, 77 N.M. 196, 420 P.2d 779. I would note that the instant case is indistinguishable in my view from Board of County Commissioners of Chavez County v. Reese, 75 N.M. 326, 404 P.2d 146, wherein no opinion was filed.
Nothing in either Martin v. Leonard Motor—El Paso, 75 N.M. 219, 402 P.2d 954, or Beyer v. Montoya, 75 N.M. 228, 402 P.2d 960, supports the conclusion here reached. In Martin, as noted, the motion to set for trial was filed before the motion to dismiss, although after the passage of more than two years. This was held to be sufficient to establish a good faith effort to bring the case to final determination and to prevent dismissal under Rule 41 (e) (§- 21—1—1 (41) (e), N.M.S.A. 1953).
In Beyer, supra, although the opinion does not so state, a motion to set for trial had been filed. In addition, no written motion to dismiss under Rule 41(e) was' ever filed. An oral motion was made at the opening of the trial, and we held such a motion to have been “neither timely nor proper.”
I see no support in either of these cases for a conclusion that the motion to dismiss in the instant case came too late. The action taken by plaintiff and by the court before the motion to dismiss was filed was dehors the record, a circumstance which has always- before resulted in its being held insufficient to interfere -with the operation of. the statute. Aside from questions of precedent, stare decisis and consistency in application of our law, I am concerned with where the instant opinion leaves us. What is the rule ? Must the showing of diligence be on the record, or may it be shown by proof at a hearing, by affidavit, or by merely filing of correspondence in the clerk’s office? Except for affidavits, we have held these things ineffective to show diligence. If the letters themselves are not to be considered because ,of .our previous decisions, do they gain added credence if incorporated in an affidavit? I see no reason why an affidavit is in any sense different, or entitled to more favored treatment than original letters or testimony. Quite to the contrary. Affidavits are generally regarded to be the most unsatisfactory of all species of evidence. See 2 Wig-more on Evidence, § 1384; 3 Am.Jur.2d 380, Affidavits, § 1, where they are described as “mere affidavits.” Such appellation is not uncommon. To now exalt affidavits' over actual proof can be explained on no basis except that some excuse, regardless of logic or reason, is being sought to erode the rule heretofore uniformly followed.
Is Schall v. Burks, 74 N.M. 583, 391 P.2d 192, still the law? Has what was said in Trujillo v. Harris (January, 1966) 75 N.M. 683, 410 P.2d 401, and in Briesmeister v. Medina, 76 N.M. 606, 417 P.2d 208 (July, 1966) been overruled so soon? In Trujillo is found the following:
“In the instant case the correspondence sought to be considered was not part of the trial court record at the time the motion to dismiss was placed before the court. The letters were placed in the transcript as an exhibit, in response to the motion to dismiss under Rule 41(e), or attached in accordance with the amended praecipe. We cannot consider them as evidence' of plaintiff’s efforts to bring' the action to its final determination.” (Emphasis mine.)
To the same effect is the following which I quote from Briesmeister:
“ * * * the correspondence between counsel-and-the court, and'the verbal request for a trial setting, not■ being re-fleeted in the court file prior to the motion to dismiss, does not constitute the action to bring the case to its final determination contemplated by the rule.” (Emphasis mine.)
See also, Brown v. Davis, 74 N.M. 610, 396 P.2d 594, where the fact that a pretrial conference had been held was determined not to be action to bring the cause to final determination.
. For all the foregoing reasons I note my disagreement with the opinion filed and on which rehearing is being denied.
COMPTON, J., concurs.