dissenting:
I dissent.
This is a run-of-the-mill personal injury suit. I find nothing in the nature of the circumstances or the controlling law that justifies the extraordinary relief of mandamus. The majority holds that the district judge was without discretion to deny summary judgment; hence, mandamus is appropriate to force the entry of summary judgment. The opinion appears to rest primarily upon the language of NRCP 56(e), “When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”
This provision was recently introduced to the federal *352practice, (see amendment to F.R.C.P. 56, effective July 1,1963), to overcome a line of cases in the Third Circuit which permitted the party opposing a motion for summary judgment to rest upon the averments of his pleadings if they were not suppositious, conclusory, or ultimate. Nevada copied the change, effective March 16, 1964. The words used in NRCP 56 (e) do not strip the trial judge of discretion to either grant or deny summary judgment. Indeed, the words “if appropriate” compel the conclusion that his discretion is not restricted. A reporter to the Advisory Committee on Civil Rules, in writing about this particular amendment, states, “The current amendment states, consistently with rule 56(f), not that summary judgment is necessarily to be granted when the moving party has made a convincing case and the adversary fails to support his pleading with any proof, but rather that summary judgment may be granted ‘if appropriate.’
“Some possible misunderstandings should be dispelled. A party opposing summary judgment need not come forward in any way if the moving party has not supported his motion to the point of showing that the issue is sham. The amendment introduces no change here. Nor does it change the proposition that an issue whose decision turns on credibility of witnesses is fitting for trial, not summary judgment. The amendment does not derogate from the discretion of the trial judge to deny summary judgment, even though the papers make a plausible case for it, when it appears likely that more may come out upon a trial.[1] The amendment merely recognizes what is known of all, that a pleading, though put in with entire good faith, may be based on information which under private investigation or discovery can turn out to be inaccurate. When the moving party has freshly demonstrated that his adversary’s past assertions are unsupported, the adversary may be concluded if he does nothing more.” Kaplan, Amendments of the Federal Rules of Civil Procedure, 1961-1963 (II), 77 *353Harv.L.Rev. 801, 826, 827. His view is shared by Professor Wright who says, “And despite all that may be shown, the court continues to have the power to deny summary judgment as not ‘appropriate,’ if, in its sound judgment, it believes that for any reason the fair and just course is to proceed to trial rather than to resolve the case on a motion.” 69 Harv.L.Rev. 839, 854. I find no expression contra (except the holding in today’s case) to those just mentioned. On June 22, 1964, we decided Wilmurth v. District Court, 80 Nev. 337, 393 P.2d 302. We there reiterated the well established law of this state that mandamus will not lie to review discretionary acts of the trial court. The case now before us should be similarly treated. Of course if a trial court, in the exercise of discretion, erroneously divests itself of jurisdiction to proceed with the case, mandamus may be available. Floyd v. District Court, 36 Nev. 349, 135 P. 922; State v. Moran, 37 Nev. 404, 142 P. 534; LaGue v. District Court, 68 Nev. 125, 227 P.2d 436; Swisco, Inc. v. District Court, 79 Nev. 414, 385 P.2d 772. Those cases represent an exception to the general rule reiterated in Wilmurth v. District Court, supra, and do not touch the case before us. Here the trial court, in denying summary judgment, did not divest itself of jurisdiction to proceed with the case. Nor does Thran v. District Court, 79 Nev. 176, 380 P.2d 297 (relied upon by petitioners), have any bearing on the problem before us. In Thran mandamus was used to compel the district court to dismiss an action that was not brought to trial within five years. There NRCP 41 (e) was under scrutiny. The five year dismissal provision is mandatory. The language “if appropriate” contained in NRCP 56 (e), with which we are now concerned, is not to be found in NRCP 41 (e). I respectfully suggest that my brothers have erroneously read 56 (e). As a consequence, the scope of mandamus is enlarged without justification.
Another equally cogent reason exists for refusing mandamus. The instant case (for reasons already expressed) not only fails to meet NRS 34.160 (a writ of mandamus may issue to compel the performance of *354an act which the law especially enjoins as a duty resulting from office) but, in addition, offers no valid suggestion why there is not a plain, speedy and adequate remedy in the ordinary course of law. NRS 34.170. An order denying summary judgment is not appealable, mainly because it is not a final judgment disposing of the controversy. The parties’ rights and duties are not finally decided by such an order. It is interlocutory in nature. The petitioners’ contention that they are not liable to the plaintiff in this case may be continually advanced below as the case progresses, at pretrial [NRCP 16] ; by motion for involuntary dismissal at the close of the plaintiff’s case (NRCP 41 (b)); by motion for a directed verdict at the close of the case (NRCP 50(a), if a jury trial); by a motion non obstante veredicto if the verdict is adverse (NRCP 50 (b)); by motion for a new trial if the judgment is adverse (NRCP 59); and, finally, by appeal (NRCP 72). In my view these procedures are plain, speedy and adequate. It was never intended that this court, through the device of mandamus, should review a discretionary ruling of a district judge which does not finally dispose of the controversy. Otherwise, an interlocutory order of the kind before us would have been made appealable. I would deny the writ.
1In the present case the depositions of the petitioners were pending when the motion for summary judgment was denied.