HARRIS VS. HARRIS (DIVORCE)

Key holdings

Practitioner summary

The defendant wife appealed from a judgment dismissing her cross-action for separate maintenance for want of diligent prosecution and abandonment, entered on the plaintiff husband's motion after the remittitur from Harris v. Harris, 62 Nev. 473, 153 P.2d 904, 159 P.2d 575 (reversing the original decree and ordering a new trial) had been on file for one year and eight months with no action by either party. In the interim the wife had obtained a Massachusetts injunction commanding the husband to desist from prosecuting the Nevada action and to procure its dismissal, served on him in Nevada November 4, 1946. The court (McKnight, D.J.) held: (1) a court of record possesses inherent discretionary power, without statutory aid, to dismiss an action - and equally a cross-complaint - for failure to prosecute with reasonable diligence (Raine v. Ennor, 39 Nev. 365, 371); (2) the 1943 dismissal statute (Stats. 1943, p. 231; sec. 9932, N.C.L. 1931-1941 Supp., 1945 Pocket Part), an exact copy of California Code of Civil Procedure section 583 and presumptively adopted with its California construction (Kramer v. State, 60 Nev. 262, 275), did not apply - the issues raised by the cross-complaint were severable, a plaintiff has no such control over a cross-complaint as the code provision contemplates, and neither the discretionary two-year sentence nor the second sentence applies to retrials (Allyne v. Murasky; Craghill v. Ford; Mercantile Investment Co.); (3) the mandatory provision requiring dismissal if a case is not retried within three years of the remittitur does not impair the inherent power to dismiss within a shorter period (Inderbitzen v. Lane Hospital; Phillips v. Santa Ana Times); and (4) the only limitation is abuse of discretion, and the trial court's finding that 'a stronger set of facts justifying the exercise of its discretion could not be imagined' was supported by the record. Affirmed.

In plain language

After the Nevada Supreme Court reversed a divorce decree and ordered a new trial in an earlier appeal (Harris v. Harris, 62 Nev. 473), neither spouse did anything in the Nevada case for a year and eight months. The wife instead went to a Massachusetts court and obtained an injunction ordering her husband not to prosecute his Nevada divorce case at all. The husband then moved the Nevada court to dismiss the wife's cross-claim for separate maintenance, on the ground that she had failed to prosecute it diligently and had abandoned it. The trial court dismissed, and the wife appealed, arguing that a Nevada statute gave her a guaranteed minimum of two years (or three years after a reversal) before any dismissal was allowed. The supreme court affirmed. Courts of record possess inherent power - independent of any statute - to dismiss claims, including cross-complaints, for lack of diligent prosecution, and the 1943 statute (copied from California's section 583) did not restrict that inherent power to dismiss sooner; its time limits set outer mandatory deadlines, not minimum grace periods. The only limit on the inherent power is abuse of discretion, and given the wife's inaction and her attempt to enjoin the Nevada case from another state, no abuse appeared.