OPINION
By the Court,
This is аn original petition filed in this court seeking a writ of mandamus commanding the respondent court to vacate its order dismissing without prejudice, on the ground of forum non conveniens, an action commenced by petitioner, as plaintiff, against Bluhill Nevada, Inc., as defendant, for judgment on a promissory note executed by said defendant. Respondent filed a “Return and Answer” in which it admitted the commencement of said action in respondent court, that said action was brought to obtain judgment on a promissory note alleged to be due, owing, and unpaid; that plaintiff and defendant in said action are both corporations оrganized and
Respondent denied the allegation that there is no plain, speedy, and adequate rеmedy available to petitioner other than by application for mandamus, and denied, on the ground that it was without knowledge or information sufficient to form a belief, the allegations that Bluhill is “conducting its business at a substantial and consistent loss and greatly prejudicial to the interests of its creditors and that fair cash value of all” of its assets is less than the total of its obligations; and in this respect alleged, on the same ground, that Bluhill Nevada, Inc., is solvent, has been conducting its business at a steady and consistent profit throughout the year 1963 and that its financial condition is now, and throughout the year 1963 has been, steadily improving; and denied that the remedy of appeal is inadequate for the reasons stated in the petition and denies that petitioner’s rights will be irreparably injured by further depletion
As affirmative defenses, respondent asserted (1) that the petition does not state facts to entitle petitioner to a writ of mandamus in failing to show that respondent has neglected or refused to perform any act specifically enjoined on it as a duty resulting from its office; (2) in that it fails to show that respondent excluded petitioner from the use or еnjoyment of a private right to which it is entitled; (3) that petitioner has a plain, speedy, and adequate remedy in the course of law by appeal; and (4) that the making and entering of the order of dismissal without prejudice by respondent was a matter wholly within the sound discretion of respondent.
(1) We first dispose of the contention of respondent that the granting of its order of dismissal was in the exercise of its sound discretion and thus is not subject to review by mandamus. It refers to the many holdings of this court that mandamus will lie only when there is a plain, statutory, mandatory provision of law commanding the act to be done. This is simply disposed of by reference to Article 6, section 6 of the state constitution vesting original jurisdiction in the district courts in all cases in equity and, inter alia, in all other cases in which the demand exceeds $300. McCarran, J., speaking for the court in Floyd v. District Court,
But it is further said that the respondent court did assume jurisdiction in entertaining the motion to dismiss and that the respondent so conceded by opposing
Respondent’s chief attack on the availability of mаndamus in the premises, however, is based upon its attempt to reconcile early cases in this court and distinguish later cases which have definitely sustained the remedy in similar situations. It is true that the cases of State ex rel. Treadway v. Wright,
In State ex rel. Howe v. Moran, District Judge, 37
In LaGue v. District Court,
Respondent attempts to distinguish Floyd and LaGue. LaGue followed the reasoning of Floyd and was decided on the authority of the Floyd opinion. Reference is made to the main opinion of McCarran, J., and to the concurring opinion of NORCROSS, J., in that case, and to the repeated expressions by those two eminent jurists amplifying our quotations from those cases set forth above.
(2) The learned briefs of counsel have traced the history and development of the application of the equitable remedy of forum non conveniens, its adoption in mаny courts in the United States, its rejection by some courts, and that Nevada is at liberty to accept or reject the doctrine. We find it unnecessary to pass on this question, for, assuming for the sake of argument that this court would in a proper case accept and apply the doctrine, the recоrd will not support its application. The motion to dismiss on the ground of forum non conveniens is supported by the affidavit of the president of the defendant corporation, which states that defendant Bluhill was qualified to do business as a foreign corporation in the State of Colorado; that its manufacturing plаnt, books, records, and principal activities are all located and conducted in Colorado, and that it has no plant or office facilities other than in Colorado; that all of the directors and officers reside in Colorado; that the note which is the subject of the complaint was executed and delivered to the original payee in the State of Colorado ; that all of the acts and transactions complained of in the complaint occurred in Colorado; that the corporation’s accountants and those most familiar with the books, records, and financial conditions оf Bluhill reside in Colorado; that all of the directors and officers of Swisco, Inc., reside outside of the State of Nevada, and that Swisco is not and never has been engaged in business in Nevada.
As to the allegations respecting the execution of the note, it should be noted that it is dated “as at Chicago, Illinois,” and that it is payable at a specific address in Chicago, Illinois, “or such other place as the legal holder thereof may in writing appoint.” As a matter of fact, the affidavit of Lester M. Eiseman, president of Swisco, recites that all payments made by Bluhill on account of principal and interest on thе note in question, from November 27, 1962, to date of suit, were made by Bluhill
In Mooney, supra, the court said:
“Granting discretionary power in the trial court to dismiss the cause for reasons of inconvenience, the power should only be exercised in exceptional circumstances and when an adequate showing has been made
That court also referred to another important factor not disclosed by the affidavit. It said: “Another desirable factor which might be considered by a court in determining whether or not to exercise its discretiоn and dismiss a case is the condition of the court calendar of the jurisdiction which may subsequently be required to hear the cause. There is a total lack of evidence to establish this factor. We are entirely unadvised as to the condition of the calendar in the federal and state courts of Denver, and, while we east no reflection on their condition, it might be that the plaintiff in this action would be required to wait an unreasonable length of time before his case would be brought to issue in that jurisdiction. The evidence as to this is readily available and could have been presented to the trial court. It hardly cоmports with our understanding of convenience to require a litigant to institute his suit in a jurisdiction where it might be many months before he can obtain any redress.”
It is ordered that a peremptory writ issue directing that thе respondent court entertain jurisdiction of the cause. The case is hereby remanded for further proceedings in accordance with this opinion.
Notes
For recent cases in other jurisdictions cf. Bank of America National T. & S. Association v. Superior Court,