(dissenting).
I am unable to agree that mandamus is an appropriate or proper remedy to compel the trial court to vacate its order denying the motion to dismiss under Rule 41(e) and directing it to enter an order of dismissal.
It is clear that such a writ cannot be invoked as a substitute for appeal, nor will it lie if the act to be performed is discretionary in its nature or if it requires the exercise of judicial judgment in determining whether ;he duty does or does not exst. Sec. 22-12-4, N.M.S.A.1953, quoted by the majority, limits the use of mandamus. My conception of the scope of the term “judicial discretion,” as used in the statute, differs from that of the majority. In my view, the majority opinion results in control of the discretion vested in the trial court.
The motion in this case sought dismissal for failure to prosecute the action within two years after its filing. Response to the motion recited the actions reflected by the court files and called for the exercise of judicial judgment as to whether any of those actions, including plaintiff’s request for admissions, constituted such action by plaintiff to bring the cause to its final determination as to satisfy the requirements of and prevent mandatory dismissal under Rule 41(e). The performance of that duty by the trial court could have been compelled by mandate if the court had refused to decide the question. But this court has no original jurisdiction to direct the respondent court to decide an issue, not theretofore specifically decided by this court, in a particular manner. New York Life & Fire Ins. Co. v. Wilson, 8 Pet. 291, 33 U.S. 291, 8 L.Ed. 949; State ex rel. Dayton Gravel Road Co. v. Board of Com’rs., 131 Ind. 90, 30 N.E. 892; State ex rel. Benson v. Superior Court of Marion County, 205 Ind. 464, 187 N.E. 203; State v. Phelps, 67 Ariz. 215, 193 P.2d 921. Mandamus was said in People v. Dusher, 411 Ill. 535, 104 N.E.2d 775, 779, not to lie to direct or modify the exercise of judicial discretion where the judge must answer the inquiry: “ ‘What is the law and has it been violated or obeyed ?’ ” (Emphasis added.)
While the majority appear to limit the definition of the term “judicial discretion” to that power of a court to choose between two alternative courses of action, Kiddy v. Board of County Commissioners of Eddy County, 57 N.M. 145, 255 P.2d 678, clearly included within the meaning of the term not only the power of choice between two alternatives but, also, the exercise of judicial judgment. This is apparent when it was there said:
“Mandamus traditionally lies to direct performance of nondiscretionary tasks and by statute the remedy may be extended to discretionary tasks, but ordinarily only to the doing of them and not to the manner in which the discretionary task shall be performed. * * * [A] nondiscretionary or ministerial duty exists when the officer is entrusted with the performance of an absolute and imperative duty, the discharge of which requires neither the exercise of official discretion nor judgment. * * * ”
In denying the writ sought in Kiddy to compel the board of county commissioners to call a bond election, it was pointed out that mandamus would have been proper if the election petition had “clearly and unequivocally met all the requirements of the statutes and Constitution of New Mexico, * * * ” so that the duty would be mandatory, unqualified and ministerial, but that the writ will not lie when the situation is one in which interpretation and judgment are necessary. In so holding, we said:
“ * * * There was a judicial question as to whether the board had been presented with a petition which called for a single or a dual proposition, since the precise issue raised had not been previously settled by the courts of this state.” (Emphasis added.)
Thus, this court adopted the rule that when facts exist which require the officer to make a judicial determination as to a matter of law, mandamus is not proper. See Ross v. State Racing Commission, 64 N.M. 478, 330 P.2d 701, reaffirming the definition of discretionary duties and the distinction between ministerial and judicial acts set forth in Kiddy. See also In re Press Printers & Publishers, Inc. v. Murphy (3rd Cir.1926) 12 F.2d 660.
The rule of Kiddy, as applied to an inferior court, was well stated by the Supreme Court of Indiana in State v. Gelb, 225 Ind. 330, 75 N.E.2d 151, where it was said:
“ ‘The writ of mandamus is an extraordinary writ which can be issued only to compel the performance of clear legal duty. The duty to do an act must be absolute and imperative, and not dependent on the exercise of discretion or upon judicial determination. [Citing cases] If the act is discretionary in its nature, or if the party charged with a duty is required to exercise judgment or to act judicially in determining whether the duty does or does not exist, the manner in which such a discretionary or judicial act is to be performed cannot be controlled by the writ. Ordinarily such a writ cannot serve as a means for reviewing a judicial decision nor to take the place of an appeal or a writ of error. [Citing cases]’ ”
As I have pointed out, in the instant case the trial court was required to determine whether certain actions by plaintiff, as reflected by the court files, among which was a request for admissions of fact, were sufficient to satisfy the requirements of Rule 41(e). That question “had not theretofore been previously settled by the courts of this state.” It was, therefore; necessary for the lower court to exercise judicial judgment in determining whether that act satisfied the rule and prevented mandatory dismissal under it. It is not material whether this court agrees with the result reached by the lower court in its exercise of judicial judgment. That is a question to be determined on appeal, not in mandamus in review of the correctness of the trial court’s ruling.
In relating the legal doctrine to the instant case, it is important to note the nature and requirements of Rule 41(e) as interpreted by the decisions of this court. The majority, in stating that “dismissal is mandatory after the passage of two years from the filing of the action, unless the time is tolled by certain well-defined exceptions,” (emphasis added) overlook the dual nature of 41(e). By decision, this court has held that the running of the period of the rule is tolled by certain circumstances as outlined in Ringle Development Corporation v. Chavez, 51 N.M. 156, 180 P.2d 790, and adopted in Featherstone v. Hanson, 65 N.M. 398, 338 P.2d 298; Henriquez v. Schall, 68 N.M. 86, 358 P.2d 1001; Western Timber Products Co. v. W. S. Ranch Co., 69 N.M. 108, 364 P.2d 361, but, also, the rule may be completely satisfied so as to be no longer applicable. Thus, once the plaintiff has taken “any action to bring such action or proceeding to its final determination,” within the two-year period, he has satisfied the terms of the rule and is free from its requirements.
Each of our decisions prior to Morris v. Fitzgerald, 73 N.M. 56, 385 P.2d 574, involved only questions of what circumstances tolled the running of the period prescribed by the rule. It was not until Morris, decided after the decision of the trial court in this case, that this court held discovery procedures are not actions to bring a proceeding to its final determination. The majority go to some length to hold, notwithstanding the statements of some authorities to the contrary, Seventh Annual Report of the Judicial Council of the State of New York 309; 56 Northwestern U.L.Rev. 679, that a request for admissions is a discovery procedure and does not satisfy Rule 41(e). Cf. Robinson v. Navajo Freight Lines, Inc., 70 N.M. 215, 372 P.2d 801. Assuming arguendo that a request for admissions is a discovery procedure, nevertheless, the authorities are not uniform on the question and this court had certainly not held it to be such procedure when the trial court was called upon to decide that legal question. It cannot be said that the legal question had so clearly been previously determined by this court, that following our prior decisions was only a ministerial act. Clearly, this court in Morris was called upon to decide, by the exercise of this court’s judicial judgment, the legal proposition that discovery procedures do not satisfy the rule. It is equally apparent that it was only by the majority opinion in this case that request for admissions was held to be a discovery procedure. If determination of those questions called for exercise of judicial judgment by this court, the determination of the legal issue by the trial court was likewise an exercise of its judicial judgment, and may not be controlled by mandate in an original proceeding here.
I am unable to agree with the appraisal of Kiddy by the majority that mandamus will issue to review and correct an erroneous decision by a lower court but will be denied if this court should on review agree with the lower court’s judgment. I find no basis for such a construction of Kiddy.
State ex rel. Cardenas v. Swope, 58 N.M. 296, 270 P.2d 708, held there was no provision of the statute which could be construed as authorizing an ex parte change of venue in a workmen’s compensation case, and that the trial court’s task of setting the case for trial in the county where the case was pending was only a ministerial task requiring no exercise of judicial judgment.
It is true that the trial court’s exercise of judicial judgment was reviewed, corrected and directed in Flores v. Federici, 70 N.M. 358, 374 P.2d 119, but there mandamus was only attacked because it was asserted that petitioner had an adequate remedy by appeal. This court, however, determined that refusal to grant petitioner a jury trial in the criminal case in which he was charged denied him a fundamental right which should not be left to any contingency. Mandamus was held proper to protect and correct such fundamental error. That case is not authority upon which to base mandamus as a proper remedy to review and correct an error of judicial judgment in a civil action.
State ex. rel. DeMoss v. District Court of the Sixth Judicial District, 55 N.M. 135, 227 P.2d 937, relied upon by the majority to prevent the doing of a useless thing, is clearly not relevant. There, prohibition was issued in the exercise of our superintending control. In this case, I think prohibition might be appropriate in the exercise of our superintending control if it clearly appeared that permitting the case to be tried would result in great expense and hardship, and the result on an appeal would be clear. As pointed out, however, superintending control may not be exercised by writ of mandamus.
I am unable to agree with the appraisal of the California decisions by the majority. As I view them, they are almost entirely based upon Anderson v. Superior Court, 187 Cal. 95, 200 P. 963, and proceed upon the basis that where the express mandatory conditions for dismissal are clearly established without contradiction, the court is without discretion and does not exercise judicial judgment, and mandamus is, therefore, appropriate. Furthermore, California has no statute prohibiting mandamus to control judicial judgment.
Under our statute, we may not exercise supervisory control to review and correct a decision of a lower court where the question was the legal interpretation or construction of a rule or statute, as was done by the Supreme Court of Illinois in People v. Sandusky, 21 Ill.2d 296, 171 N.E.2d 640. The interpretation or construction of a rule or statute requires the exercise of judicial judgment and may not be controlled by mandamus.
I am compelled to dissent from the majority.