75 N.C. App. 625 | N.C. Ct. App. | 1985
There is nothing in the record before us to indicate that defendant made a motion to have plaintiff s claim dismissed for failure to prosecute. On appeal, citing Simmons v. Tuttle, 70 N.C. App. 101, 318 S.E. 2d 847 (1984), plaintiff strenuously contends that the trial judge was without authority to dismiss plaintiffs claim for failure to prosecute in the absence of a motion by defendant to do so. We note that two of the judges participating in Simmons also participated in the review of the present case, and concur in the Court’s decision to limit the holding in that case. We disagree with the contention that the trial judge does not have authority to dismiss a claim pursuant to Rule 41(b) in the absence of a motion by defendant to do so. Whether a judge may dismiss a claim pursuant to G.S. Sec. 1A-1, Rule 41(b) depends on the facts and circumstances surrounding the particular case.
In the present case a motion to make the trustee in bankruptcy a party to the action was pending when the case appeared on the calendar. Plaintiff contends the trial judge erred in denying the motion to make the trustee a party.
The trustee, in accordance with the provisions of 11 U.S.C. Sec. 323(a) and 323(b) became, at the time of his appointment, the
We note that the trial judge made no findings of fact in ruling on the motion to make the trustee a party. It appears that the trustee was a proper party but not a necessary party with respect to plaintiffs claim against defendant, and thus it was not necessary for the judge to make findings of fact in ruling on the motion to make the trustee a party to plaintiffs claim. Kimsey v. Reaves, 242 N.C. 721, 89 S.E. 2d 386 (1955). But since the trustee appears to be a necessary party with respect to defendant’s counterclaim against plaintiff, the bankrupt, the trial court should have made findings of fact in ruling on the motion. Thus, the Order denying the motion to join the trustee as a substitute party for plaintiff must be vacated, and the cause remanded to the district court for a new hearing and ruling on that motion.
Since the record affirmatively discloses that the trustee was present when the case was called, we hold the trial court erred in dismissing plaintiffs claim with prejudice pursuant to G.S. Sec. 1A-1, Rule 41(b). We note that defendant gave notice of appeal from the Order dismissing the proceeding, but that he did not perfect that appeal. The result is: that part of the Order denying plaintiffs motion to make the trustee in bankruptcy a party to the proceeding is vacated, and the cause is remanded to the district court for further proceedings regarding the motion; that part of the Order dismissing plaintiffs claim for failure to prosecute is vacated, and the cause is remanded for further proceedings.
Vacated and remanded.
