(concurring).
The fulcrum of this appeal is Judge Kala-marides’ order of dismissal of July 17, 1973. If that dismissal was without prejudice, the subsequent dismissal of the refiled suit and denial of the motion for relief under Civil Rule 60(b) should be reversed. If, however, Judge Kalamarides’ dismissal is to be regarded as a dismissal with prejudice, there was no right to refile the suit, and the superior court orders should be affirmed. The difficulty, as I see it, is that Judge Kalamarides’ order was apparently based on dual grounds, one of which would result in the dismissal being with prejudice, and the other without prejudice. The judge granted the state’s motion to dismiss for want of prosecution. That motion was made under Civil Rule 41(b). The rule specifies that “For failure of the plaintiff to prosecute a defendant may move for dismissal of an action . against him”. The rule specifically provides that
a dismissal under this subdivision operates as an adjudication upon the merits, unless the court in its order for dismissal otherwise specifies.
Since the dismissal under Rule 41 (b) would be “a dismissal under this subdivision” and since the court in its order for dismissal did not specify otherwise, the order would thus operate as an adjudication upon the merits.
*673I do not understand the majority’s statement that the dismissal for want of prosecution pursuant to defendant’s motion does not fall under Rule 41(b). There was a motion filed for that purpose, and when no opposition was filed to that motion, Judge Kalamarides granted it under Civil Rule 77(e). Rule 77(e) at that time provided: “Failure to file a brief by the adverse party shall be deemed an admission that, in the opinion of counsel, the motion is well taken”.
The difficulty with this case is that in the same order Judge Kalamarides, on his own motion, dismissed the case for failure to prosecute. Such a dismissal would be under Civil Rule 41(e), and I agree with the majority of the court that such a dismissal in the absence of any other indication by the judge is without prejudice. Thus, under the same order, there was a dismissal which normally would be regarded as with prejudice and a dismissal which would be considered to be without prejudice. The parties did not call this to the attention of the trial judge nor ask for clarification. Under these circumstances, I believe that the well-established policy in favor of having cases tried on their merits should prevail,1 and for that reason, I concur in the court’s decision to reverse the dismissal of the refiled complaint.
. See, e. g., Lindsey v. Drs. Keenan, Andrews & Allred, 118 Mont. 312, 165 P.2d 804, 810 (1946) ; Rogers v. Lyle Adjustment Go., 70 N.M. 209, 372 P.2d 797, 800 (1962) ; Westring v. Cheyenne National Bank, 393 P.2d 119, 122 (Wyo.1964). Cf. Guard v. Benson, 438 P.2d 219, 223 (Alaska 1968) ; Sanuita v. Hedberg, 404 P.2d 647, 651 n. 10 (Alaska 1965).