(dissenting):
I dissent, — noting at the outset that the main opinion’s footnote to its first sentence, disarmingly emphasizes that “The essential facts recited herein are substantially without dispute . . . ” — which is not the test for reversal, — that being whether there are substantial believable facts to support the lower court.
Plaintiff furnished equipment to Skyline, general contractor, and to Larsen, its subcontractor, starting in 1970 and continuing in 1971. Defendant, General Insurance, was the statutory1 surety to pay for such equipment if Skyline defaulted, which it apparently did, for an undetermined amount. Westinghouse claimed it was about $64,000, which defendants generally denied.
Westinghouse sued on February 10, 1972, after unsuccessful negotiations for an accounting and payment had been indulged by the parties for a considerable length of time prior to the institution of this litigation. The suit was prompted, apparently, *880to comply with the statutory requirement to file suit within one year after the last materials are furnished.2 There was no counterclaim, — only an answer.
About 90% of the record consisted of communications, motions, memoranda, requests for production of documents, interrogatories, etc.
The salient, believable, admissible facts that support the trial judge’s decision, arrived at by the exercise of his uiscretion, —which the rules say is his, — together with the principle that on appellate review, the trial judge is affirmed unless arbitrary and capricious to the point reflecting a clear abuse of discretion,3 fairly may be condensed thus:
In 1970-71, plaintiff furnished materials to Skyline and Larsen, the general and subcontractor defendants. The last were delivered on October 27, 1971. The complaint followed on February 2, 1972.4 A week later, on February 9, 1972, defendants moved to dismiss for failure to state a claim, which has little significance here. A couple of weeks later, on February 24, 1972, defendant Larsen requested records of plaintiff, having to do with sales, delivery, payments, and the like.5 Plaintiff did not answer interrogatories presented until five months later, on July 17, 1972, and then simply responded to the effect that it had some receipts.
A year and one month later, on August 15, 1973, defendants, through their counsel’s affidavit, complained that plaintiff had not furnished the requested records and filed a motion to dismiss under Rule 41(b), “for failure ... to prosecute . ” Two days later, plaintiff’s counsel advised defendant’s counsel that the records were ready. Five days later, on August 22, 1973, the motion was denied and plaintiff was given ten days to amend (obviously to allow plaintiff to allege when the last materials had been furnished, a fact plaintiff had neglected to allege in its complaint). About five months later, on January 9, 1975, which was about 15 months after plaintiff’s first motion to dismiss for lack of prosecution (August 15, 1973, supra) and about three years after the complaint was filed, defendants again filed a motion to dismiss for failure to prosecute the action, as had been the case on August 15, 1973. There followed a number of motions, notices, memoranda, affidavits, etc. when the motion was granted dismissing the action with prejudice.
During the three years this action was pending, the two defendants that primarily were obligated to pay for the materials went broke.
There is substantial evidence to the effect that the delay presented a practical, difficult problem for the remaining defendant, — the only one with means, — to accumulate evidence because of scattering of the personnel of the other two, coupled with the circumstances of dimming memories, all of which gave the remaining defendant a rather slim chance of assuming a burden of going forward, — which basically was that of the plaintiff.
Under the circumstances of this case, hardly can it be said that the trial judge’s mandate arose out of an arbitrary or capricious abuse of his discretion.
On more than one occasion, this court has defended and affirmed such discretionary orders against a charge of abuse, in cases appearing factually to justify affirmance of the order here, as much as justified affirmance on the facts prevailing in those cases. About the most recent is Thompson Ditch v. Jackson, 29 Utah 2d *881259, 508 P.2d 528 (1973), where unanimously we said:
The ruling of the court below will not be disturbed on appeal unless the record plainly shows that the court below abused its discretion. The action of the court was taken in accordance with the provisions of Rule 41(b) ... as follows: . . . For failure to prosecute . . .
It is to be noted that we sustained the order there on the merits, the order not having been made with or without prejudice. The rest of the same Rule 41(b) takes care of any such unspecific order when it states that:
Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for . . . operates as an adjudication on the merits.
The plaintiff in its brief asked only “that this court reverse the trial court, reinstate appellant’s action . . . and order the case to be set for trial upon the merits.” It did not ask for a dismissal without prejudice, so that it would be ina-propos for this court to send the case back for entry of an unsolicited order of dismissal without prejudice, — which might initiate a new round of protraction perhaps as great or greater than that prevailing to date.
Besides Thompson Ditch v. Jackson, supra, in Pacer v. Myers, 534 P.2d 616 (Utah 1975), similar language was expressed, wherein, although not a case under Rule 41(b), the court refused to set aside a default judgment, we said, “We, on appeal, should not reverse its ruling except for abuse of discretion, to wit, that it is arbitrary, capricious, or not based on adequate findings of fact or on the law.”
Such was the case also in Brasher v. Brown, 23 Utah 2d 247, 461 P.2d 464 (1969), where even though Rule 41(b) was mentioned but not the basis of the opinion, we said that the court has an inherent discretion, irrespective of the Rule, to dismiss for lack of prosecution and that in doing so we affirm unless there is manifest abuse of discretion reflected, adopting the rule reflected in Reed v. First National Bank, 194 Or. 45, 241 P.2d 109 (1952), which said:
In dismissing an action for want of prosecution, the court may proceed under the statute, or it may, of its own motion, take action to that end. In acting on its own motion, the court must proceed with judicial discretion. Its ruling will not be disturbed on appeal unless it is manifest from the record that the court’s discretion has been abused.6
In my opinion the main opinion has substituted its own unwarranted choice of the evidence as a substitute for what many times we have held to be the prerogative of the fact-finder, — which we have said elsewhere is in an advantaged position to observe, discern, weigh, canvass, review and determine, — but not in the instant instance.
One of the hallmarkian principles espoused by such opinion is that:
Some consideration should be given to the conduct of both parties, and to the opportunity each has had to move the case forward and what they have done about it; and also what difficulty or prejudice may have been caused to the other side; and most important, what injustice may result from the dismissal.
Applying such technique here, the evidence eminently adjusts itself to such words of wisdom or platitudes, as one chooses, — which prompts me to suggest that the trial court here should be affirmed, since apparently such principles were considered.
. Title 14-1-5, U.C.A.1953.
. Title 14-1-6, U.C.A.1953.
. Thompson u. Jackson, 29 Utah 2d 259, 508 P.2d 528 (1973).
. During which period the parties appeared to have been trying to reconcile their accounting.
.Which had to be gathered from out of state sources, making it difficult to examine in plaintiff’s local office.
. See also Maxfield v. Fishier, Utah, 538 P.2d 1323, this Court, and 24 Am.Jur. 49, Dismissal See. 59.