                                           No. 88-355

                     TIS THE SITPREME COURT OF THE STATF OF MONTANA

                                              1989




IN RE THE MARRIAGE OF
BETTY HORTON,
                            Plaintiff and Appellant,
          and
MELVIN K. HORTON,
                            Defendant and Respondent.




APPEAL FROM:                District Court of the Sixteenth Judicial District,
                            In and for the County of Carter,
                            The Honorable Alfred R . Coate, J u d g e presiding.

COIJNSEL OF RECORD:
          For Appellant:
                            R. W. Heineman, Wihaux, Montana
          For Respondent:
                           Fenneth R. Wilson, Miles Cj-ty, Montana
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                     -'    .-                 Submitted on Briefs:   Feh. 16, 1989
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                                                Decided: April 18, 1989
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Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court.

     Betty Horton appealed from the judgment of the Sixteenth
Judicial District Court, Carter County, Alfred B. Coate presiding,
granting respondent's motion for dismissal for lack of prosecution
pursuant to Rule 41(b), M.R.Civ.P.   We reverse.
     The issue on appeal is whether the trial court abused its
discretion in granting respondent's motion to dismiss for lack of
prosecution.
     Betty and Melvin Horton were married in Hardin, Montana, on
August 30, 1940. In 1964, the parties separated. On June 29,
1971, Betty Horton filed for dissolution of the marriage.      The
complaint was not answered until January 7, 1975. Trial was set
for March 12, 1975, but was continued at respondent's convenience
until the parties could agree on a new trial date. The parties
finally filed notice of readiness for trial in 1983. Trial was
held on June 9, 1983. Prior to trial, the parties were ordered to
file Rule 50 affidavits of the Sixteenth Judicial District local
court rules, which requires that both parties record their
finances, health, income, and employment (now Rule 37 affidavit).
The affidavits were to be filed by June 1, 1983.
     Prior to the time of signing the dissolution decree, the
parties stipulated that the issue of property settlement would not
be discussed at trial but would be reserved.
          That the property issue between the parties is
          not yet at issue and that therefor [sic] this
          stipulation on the part of plaintiff wife is
          based upon the condition that the Court re-
          serve ruling upon the property issues and/or
          alimony and/or child support issues until
          discovery has been completed and these matters
          may be properly presented to the Court for
          subsequent ruling when discovery has been
          completed by both parties.
On June 10, 1983, in accordance with the stipulation, the District
Court granted dissolution of the marriage but reserved determina-
tion of the other issues.
      Discovery on the remaining issues began in 1983 when peti-
tioner filed interrogatories and requests for production on June
30. Respondent answered the interrogatories on July 27, 1983.
Little further discovery was conducted until 1987 when petitioner
filed a second set of interrogatories on September 21. Petitioner
also filed her Rule 37 affidavit on November 16, 1987. Respondent
answered the second set of interrogatories, only by refusing to
answer each on the grounds of irrelevancy and immateriality. On
the same day, October 19, 1987, respondent filed a motion for
dismissal of the action, according to Rule 41(b), M.R.Civ.P., for
lack of prosecution.
     The motion to dismiss was heard by the District Court on
November 10, 1987. After the hearing, the District Court ordered
that the parties attempt to work out a settlement agreement. When
this proved fruitless, the District Court reviewed briefs by both
parties on the Rule 41(b) motion and on June 1, 1988, granted
respondent's motion.
     The only issue on appeal here is whether the trial court
abused its discretion in granting respondent's motion.
     Rule 41 (b), M.R. Civ.P., states that in cases where a plaintiff
fails to prosecute or comply with the rules of civil procedure a
defendant may move for dismissal of the action. Respondent alleges
that petitioner has failed to prosecute and, as proof, has provided
letters from his attorney to petitioner's attorney asking why no
action had taken place. This obviously implies that respondent has
been willing to present his defense but petitioner has not pre-
sented her case. However, the letters date between 1971 and 1975.
Respondent did not move for dismissal until 1987.
     Respondent also argues that the defense of laches is ap-
plicable. In Hereford v. Hereford (1979), 183 Mont. 104, 108, 598
P.2d 600, 602, we stated that l'[l]aches means negligence to the
assertion of a right, and exists where there has been a delay of
such duration as to render enforcement of an asserted right inequi-
table. It
     The progression of this case has been tediously slow since
petitioner filed for dissolution in 1971. In light of the cir-
cumstances surrounding this case, there was no delay so significant
as to cause injury to the respondent. Respondent was aware that
appellant was continuing prosecution when she filed a second set
of interrogatories on September 21, 1987. Respondent refused to
answer the interrogatories but filed for a Rule 41(b) motion.
     We think that the rule which is best applicable in this case
is the one adopted in Brymerski v. City of Great Falls (1981), 195
Mont. 428, 432, 636 P.2d 846, 848-849:
           .. . that a motion to dismiss for failure to
          prosecute will not be granted if the plaintiff
          is diligently prosecuting his claim at the
          time the motion is filed, even if at some
          earlier time the plaintiff may have failed to
          act with due diligence.
     At the time respondent moved for dismissal, appellant was
actively prosecuting. We therefore hold that the District Court
abused its discretion in granting respondent's motion.
     If we assume, arguendo, that the delay in prosecution was
unreasonable, we look to Calway v. Jones (1978), 177 Mont. 516,
519, 582 P.2d 756, 758, which states that, I1[a]n unreasonable delay
therefore operates to place upon the party seeking relief the
burden of demonstrating a reasonable excuse for his inaction.I1 We
think that the appellant has shown a reasonable excuse for any
inaction she may have taken. Specifically, this Court refers to
the fact that the respondent has never filed the Rule 37 affidavit
that was required subsequent to the 1983 trial. The information
required on the affidavit--health, wealth, and income--is necessary
to continue prosecution. In fact, the second set of interrogato-
ries (which respondent refused to answer), asked respondent to list
information concerning real estate holdings and whether child
support had ever been paid for the daughter of the marriage. Many
of the questions could have been answered in the Rule 37 affida-
vit. In the case of a Rule 41(b) motion:
             While no precise rule or formula sets forth
             what period of inactivity is necessary to find
             a failure to prosecute, it is well established
             that the court's decision will not be dis-
             turbed on appeal absent a clear abuse of
             discretion.
Thomas v. Wilson (Mont. 1989), - P.2d        , 46 %.Rep. 160, 162;
Cook v. Fergus Electric Cooperative, Inc. (Mont. 1988),       P.2d
,     45 St.Rep. 2285.     Cook addressed the proper pursuit of
prosecution concerning discovery:
           [We] note that no discovery had been conducted
             . . .If the discovery had been completed,
          plaintiffs had a duty to pursue the prosecu-
          tion and bring the case to trial. If dis-
          covery was not complete, it was their duty to
          see steps were taken to ensure it was con-
          ducted. Rule 41(b), M.R.Civ.P. The plaintiffs
          pursued neither course of action, showing the
          court no indication of their desire to bring
          the case to trial.
Cook, 45 St.Rep. at 2288.
     Appellant here, on the other hand, has shown the court an
indication of her desire to continue discovery and bring the case
to trial.
     Reversed.

                                                Chief Justice
We concur:
Mr. Justice Will-iam E. Hunt, Sr., d.issenting:


     I dissent.    The judgment of dismissal for fail-ure to
prosecute by the District Court should be affirmed.
     Rule 41 (h), M. R.Civ.P. provides that where a plaintiff
failed to exercise due diligence in bringing her case to
court, dismissal for failure to prosecute is addressed to the
sound discretion of the trial court and will not he
overturned absent a showing of abuse of discretion.
Shackleton v. Neil (1983), 207 Mont. 96, 6 7 2 P.2d Ill?;
Calaway v. Jones (1978), 177 Mont. 516, 582 P.2d 756. The
rationale behind trial court discretion under Rule 41(b),
M.R.Civ.P., is that since no statute of limitations pertains
to the matter, trial court discretion is the only vehicle
available for dismissal.    Here, the trial court consid-ered
the many years of delay concerning the property settlement in
this dissolution action and dismissed the action accordingly.
     Although there is no burden on the respondent to show
injury by the delay, Shackleton, 67'2 P.2d at 1115, respondent
argued that he was prejudiced by petitioner's delay due to
the inability to effectively prepare a defense. He claimed
this was because of petitioner's failure to respond to
discovery requests. Actually, the law presumes injury to the
respondent and places the burden on the petitioner to show
good cause for delay.     Calaway, 582 P.2d at 758, citing
Cremer v. Braaten (1968), 151 Mont. 18, 20, 438 P.2d 553,
554.   The majority argued that respondent never prepared a
Rule 37 affidavit, as ordered hs7 the District Court to be
filed on June 1, 1983, thus, excusing petitioner's inaction
for four years. This does not constitute good cause for the
delay considering that petitS.oner herself did not. file a Rule
37 affidavit until- November 16, 1.987.
    Further, petitioner did nothing on the case from June
30, 1983, when she served her first set of interrogatories
and requests for production on respondent, until September
21, 1987, when she served her second set of interrogatories
on respondent.     Four years lapsed before any action on
petitioner's part occurred. Similarly, in Calawax a delav of
three years was held unreasonable.
-
-                                     The majority relies on
Brymerski v. City of Great Falls (1981), 195 Mont. 428, 636
P.2d  846, when stating that petitioner was diligently
prosecuting her claim at the time respondent filed the motion
thereby negating the District Court's ruling.        HOWC~TT~~,
petitioners only action at this point was the service of her
second   interrogatories   on   respondent   which   prompted
respondent's motion to dismiss.    Certainly, petitioner di.d
not act with due diligence on the matter.
     Although lapse of time itself is insufficient to justify
dismissal, Calaway, 582 P.2d at 758, the petitioner must
further demonstrate a reasonable excuse for inaction,
Shackleton, 672 P.2d at 115, citing Calaway, 582 P.2d at 758,
which she fa.i.led to establish.  The District Court did not
abuse its discretion in granting respondent's motion to
dismiss for failure to prosecute since petitioner did not
show good cause for delay.
     I would affirm the judgment of dismissal for failure to
prosecute by the District Court.




We concur in the foregoing dissent of Mr. Justice William E.
Hunt, Sr.
