¶1(dissenting).
¶2I do not agree with the court’s conclusion. It is based largely upon two points. Rule 36, section A, subsection(h) o-f the trial court provides that if a party seeking affirmative relief shall fail to appear on Return Day, the Clerk, upon request of the adversary party, shall enter the suit dismissed, without prejudice, for lack of prosecution. The court holds in effect that this rule applies only to the first or preliminary call before the Clerk and that on a second or succeeding call before the court the court may dismiss the case with prejudice. I think this ought to be the rule but that is not the way the rule reads now, and I think litigants should be given warning before such a reading of the rule is adopted. The second ground for the decision is that rule 37(b) of the trial court “based on” F.R. C.P. 41(b) provides that “Unless the Court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, operates as an adjudication upon the merits.” It is argued that since the dismissal in this case was not provided for in Municipal Court rule 37 the court exercised its inherent power to' dismiss for want of prosecution and was authorized to dismiss with prejudice. While it is true that Municipal Court rule 37(b) is “based on” F.R.C. P. 41 (b), it is to be noted particularly that the federal rule cited authorizes involuntary dismissals on several grounds including "for failure of the plaintiff to prosecute”, whereas Municipal Court rule 37(b) eliminates this ground for dismissal. It seems to me that the Municipal Court rule should be amended to conform in this respect to F.R. C.P. 41(b) and that thereafter if a case similar to the present one arises the court could dismiss an action with prejudice 'for failure to prosecute. Until the Municipal Court rule is so amended or litigants otherwise put on notice, I do not believe an actiorn, should be dismissed with prejudice for failure to prosecute.