414 P.2d 219

#### Ray PROCTER and Pauline Procter, Plaintiffs-Appellants, v. FEZ CLUB, a corporation, Defendant-Appellee.

No. 7845.

Supreme Court of New Mexico.

May 9, 1966.

McAtee, Toulouse, Marchiondo, Ruud & Gallagher, Albuquerque, for appellants.

Modrall, Seymour, Sperling, Roehl & Harris, Albuquerque, for appellee.

WOOD, Judge, Court of Appeals.

This appeal involves a dismissal under Rule 41(e) (§ 21-1-1(41) (e), N.M.S.A. 1953). The complaint was filed July 20, 1962. The answer was filed August 15, 1962. Plaintiff filed a motion for immediate trial setting on November 13, 1963. Defendant’s motion to dismiss was filed September 1, 1964. The order dismissing under Rule 41(e) was filed December 21, 1964.

Plaintiffs’ motion to set the case for trial, made prior to defendant’s motion to dismiss, prevents a dismissal under Rule 41(e). Martin v. Leonard Motor-El Paso, 75 N.M. 219, 402 P.2d 954; Foster v. Schwartzman, 75 N.M. 632, 409 P.2d 267; Kennedy v. Nelson, 76 N.M. 299, 414 P.2d 518, decided March 21, 1966.

The order of the trial court is reversed. The case is remanded with instructions to reinstate the complaint and to place the cartse on the trial docket.

It is so ordered.

CARMODY, C. J., and COMPTON, J., concur.