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Boston v. Buchanan12/23/2003
e that in certain circumstances under our system of pleading, when the answer is filed no further pleadings are necessary, and clearly in such a case it would be at issue on the filing of an answer. In the case of Roush v. Chester it appears that the answer contains certain affirmative defenses or new matter to which the plaintiff has replied. When the parties to a suit have filed all their pleadings and pleading has ended, the case is at issue. Andrew Stephens on Pleading (2d Ed.) 147; 2 Cooley's Blackstone, 1091; Black's Law Dictionary, 657; Dickerson v. Stoll, 24 N.J.Law, 550.
Roush v. District Court of Eighth Judicial Dist. for Cascade County, 101 Mont. 166, 53 P.2d 96, 97 - 98 (1935).
We hold that a case is at issue when issues are made up, or when the defendant has failed to plead within the time allowed by law or by an order of the court. Davidson v. Gregory, supra. This will most often occur when an answer is filed and no further pleadings are necessary. Section 1083 clearly limits the scope of its application to an action which is not at issue. In the matter before us today answers were filed and no further pleading occurred. The action was at issue, and § 1083 does not apply.
The District Court cited Rule 9(b) of the Rules for the District Courts as alternative authority for dismissing the action. Rule 9 states in pertinent part as follows:
Diligence in prosecution
b. Where an action is not diligently prosecuted, the court may require the plaintiff to show why the action should not be dismissed. If the plaintiff does not show good cause why the action should not be dismissed, the court shall dismiss the action without prejudice. A court shall dismiss actions in which no action has been taken for a year as provided in 12 O.S.1981 § 1083.
12 O. S.2001 Ch. 2, App, Rules for District Courts, Rule 9.
Rule 9(b) does not expressly limit its application to cases at issue, and Defendants argue that the dismissal can stand on the authority of Rule 9 alone. The legal issue presented by this argument is whether § 1083 limits the scope of Rule 9(b).
Rule 9(b) was created by an Order of this Court in 1961, and provided for dismissal of an action because of a plaintiff's lack of diligence in prosecuting the action. 12 O.S.1961 Ch. 2, App. Section 1083 was enacted approximately four years later in 1965. 12 O.S.Supp.1965 § 1083. Since Rule 9(b) was created prior to § 1083 it is obvious that the Rule was not originally created to implement § 1083. The Rules for District Courts were substantially modified in 1973, but Rule 9 was not changed from its 1961 version. 12 O.S.Supp.1973 Ch. 2., App. Then in 1981 the Rules were again revised and Rule 9 was amended to its present form. 12 O.S.1981 Ch. 2, App.
The first two sentences of Rule 9(b) state that a district court may dismiss an action, and they do not refer to cases not being at issue, nor a one-year period of inactivity. The last sentence of Rule 9(b) refers to a period of inactivity for one-year and dismissal of a case pursuant to § 1083. May a court dismiss a case the meets the criteria of the first two sentences of Rule 9(b), but does not satisfy the criteria of the last sentence applying § 1083? We have indicated at different times that Rule 9(b) was limited or was not limited by § 1083, and we now resolve this conflict.
After Rule 9 was amended in 1981 we were presented with the situation whether the first two sentences of Rule 9(b) acted as authority independent of § 1083. In Matter of Estate of Goyne, 1986 OK 69, 733 P.2d 391, the trial court issued an order setting a "motion to vacate hearing on agreement and the next fili
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