OPINION

This is an appeal from an order of the superior court denying appellant Schandelmeier relief from a judgment of dismissal.

In August, 1968, while out on a hunting trip, Schandelmeier was injured when he attempted to fire his Winchester Model 70 Rifle and it exploded. The only eye-witness to the accident was Schandelmeier’s son, John C. Schandelmeier (hereafter “John C”).

On October 20, 1969, Schandelmeier filed a complaint against the Winchester Western Division of Olin Mathieson Corporation, the manufacturer of the gun. The case has never come to trial. The only facts germane to this appeal concern Winchester’s unsuccessful efforts to depose John C. and its subsequent successful effort to have the case dismissed.

Winchester initially gave notice for taking John C.’s deposition on April 22, 1971.1 Pursuant to the request of Thomas E. Curran, Jr., Schandelmeier’s counsel, the deposition was re-noticed for May 3, 1971. For unspecified reasons, the deposition was not taken but was re-noticed for July 14, 1971, at which time neither Schandelmeier, John C., nor counsel appeared. Once more, John C.’s deposition was re-noticed, this time for January 26, 1972, and, once again, John C. failed to appear. The deposition was subsequently re-noticed for February 10, 1972, then for February 23, 19722 and finally for March 2, 1972.

By January 25, 1972, the case had been assigned to Judge Singleton, and the trial had been set for a date certain, May 8, 1972. With trial barely two months away, and John C. still having eluded deposition, Winchester moved to dismiss on March 3, 1972, alleging in substance a conspiracy be-’ tween Schandelmeier and John C. to thwart discovery. That motion was noticed for hearing on Monday, March 20, 1972.

By Thursday, March 16, 1972, no opposition to the motion to dismiss had been received. Pursuant to superior court practice, timely opposition not having been filed,3 the court treated Winchester’s motion as the subject of a stipulation. Court personnel then contacted Murphy Clark, Winchester’s attorney, and requested him to submit an appropriate order. On March 29, 1972, the superior court signed a judgment of dismissal with prejudice.

On April 17, 1972, Appellant Schandel-meier filed a motion for relief from the judgment of dismissal pursuant to Alaska Civil Rule 60(b)(6).4 The court found nothing in this motion explaining Schandelmeier’s failure to have timely opposed the March 3 motion to dismiss. Accordingly, on July 13, 1972, Schandelmeier was denied relief. Schandelmeier’s supplemental motion to vacate and reconsider, filed on August 10, 1972, was similarly denied.

*72The initial question presented in this appeal is whether Schandelmeier has failed to follow proper and timely appellate procedure and is thereby precluded from seeking- appellate relief before this Court. Simply stated, appellee Winchester challenges this appeal as being too late. Schandelmeier’s initial 60(b)(6) motion, filed within the 30-day period for noticing appeal,5 made no mention of any mistake of law and was unresponsive to the superi- or court’s reason for entering judgment— namely, Schandelmeier’s failure to timely oppose the motion as required by Alaska Civil Rule 77(e)(2). Not until August 10, 1972, in his motion to vacate and reconsider, did Schandelmeier challenge the court’s ruling of law.

In his memorandum order denying the August 10 motion, Judge Singleton, citing 7 Moore’s Federal Practise ¶ 60.27 [2] at 352-53 (1971), ruled that a 60(b)(6) motion is not a substitute for appeal, and that mistakes of law can be raised by a Rule 60 motion only within the thirty day period allowed for appeal.6 Adopting essentially this analysis, Winchester reads Appellate Rule 77 as. barring Schandel-meier’s attack on the merits of the dismissal at this late date.

In Wellmix, Inc. v. City of Anchorage, 471 P.2d 408 (Alaska 1970), dismissal was. ordered as a sanction for appellant’s failure to comply with an order directing it to answer interrogatories propounded by ap-pellees. In a sequence of events strikingly similar to the case at bar, appellant filed a motion, equivalent to a 60(b) motion, which did not raise any mistake of law, within 30 days of the order of dismissal. When this motion was denied appellant filed its notice of appeal from the order denying the motion within 14 days of the denial.8 Appellant’s loss of its day in court notwithstanding, this court declined to review the merits of the dismissal:

A Rule 60(b) motion for relief from a judgment “does not affect the finality of a judgment or suspend its operation.” This means that the filing of such a motion does not terminate the running of the time for appeal from a final judgment. It must also mean that an appeal from a denial of a Rule 60(b) motion does not bring up the final judgment for review. If the rule were otherwise, one could appeal from a final judgment after the time had expired by utilizing a 60(b) motion, and this would circumvent the rule limiting the time within which appeals may be taken and would frustrate the sound policy of having finality in litigation.

We could, of course, review the order of dismissal despite the failure to appeal in time, under our authority to relax or dispense with any procedural rule when the demands of justice require it. Circum*73stances calling for such relaxation or dispensation are not present here, (footnotes omitted) 471 P.2d 411 — 412.9

As in Wellmix, appellant Schandelmeier seeks by way of appeal from a denial of a 60(b) motion to have this Court review the merits of the final judgment dismissing his case. There is, however, a significant difference between Wellmix and the case at bar. In Wellmix, appellant failed to comply with a court order directing it to answer certain interrogatories, and under the provisions of former Civil Rule 37(b) (2) [c] the lower court was authorized to dismiss the cause of action.10 In contrast, we find that in the present case the failure of Schandelmeier’s son, John C., to appear for a deposition was clearly not an appropriate basis for the motion to dismiss submitted to the trial court by Winchester.11

Winchester argues that the motion to dismiss can be justified pursuant to either former Civil Rule 37(d) or Rule 41(b). We find this argument to be devoid of merit. Our former Civil Rule 37 (d) provided in relevant part:

An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party, (emphasis added)

If a party or an officer or managing agent of a party wilfully fails to appear before the officer who is to take his deposition, after being served with a proper notice, . . . the court on motion

and notice may strike out all or any part of any pleading of that party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party.

By its language this rule permits the sanctions of dismissal and entry of default judgment to be imposed only for the wilful failure of a party, or the officer/managing agent of a party, to appear for the taking of his deposition. Schandelmeier’s son is of course only a witness, not a party, in the present action. The record is totally devoid of any evidence indicating that Schandelmeier had such control over his son that John C. should be treated as having officer or managing agent status.12 There is simply no legal theory which can justify a characterization of John C. as the conceptual equivalent of an officer or managing agent of his father for the purposes of former Civil Rule 37(d).13

The Rule provides for sanctions against the disobedient party, meaning the party who has failed to appear or to answer interrogatories . . . . Since the sanction under Rule 37 (d) is applied to the party, though the failure to appear is the failure of the party’s officer director or managing agent, when it is doubtful that a witness is an officer or managing agent of the party, the court generally would not impose the drastic sanctions formerly provided for in Rule 37(d), but would leave the opposing party to compel attendance by subpoena under Rule 45 (footnotes omitted)

*74 The suggestion is made that Civil Rule 41(b) can be interpreted to justify Winchester’s motion to dismiss. However, when noncompliance with a discovery order is in issue, Civil Rule 37(b), not Civil Rule 41(b), must be looked to as the source of the court’s authority to impose sanctions.14 The appropriate sanction for a lower court to utilize when a witness is subpoenaed to appear for the taking of a deposition and fails to appear is the contempt power found in Civil Rule 45(f).

In light of both the inappropriateness and the severity of the sanction of dismissal with prejudice of Schandel-meier’s claim for relief, we find the case at bar to be a proper one in which to dispense with the procedural rule regarding timely appeals in order to meet the demands of justice.15 Accordingly, we have decided to allow the appeal from the merits of the lower court’s decision to dismiss with prejudice Schandelmeier’s claim for relief. Our decision should not be interpreted as condoning the general use of a 60(b) motion in lieu of a timely appeal of alleged mistakes of law by the superior court.16

Briefly reviewing the facts that preceded entry of the judgment of dismissal, we find that appellee Winchester’s motion to dismiss was filed on March 3, 1972. Schandelmeier failed to file timely opposition to this motion as required by former Civil Rule 77(e)(2).17 As a result of this failure to timely oppose, the trial court had the discretion under subdivision (f) (2) of Civil Rule 77 to consider this failure to be a consent by appellant to the granting of the motion.18 We have previously stated that we will interfere with this exercise of discretion only where there has been an abuse in the imposition of the sanction *75provided by subdivision (f)(2).19 The discretion granted the lower court in subdivision (f) (2) of former Civil Rule 77 does not mean that the court need not examine a motion and any supporting memorandum submitted by the moving party when there is defective opposition to the motion. A court should scrutinize both the motion and supporting memorandum in order to determine whether granting of the motion is warranted. This is particularly true where the motion is one for dismissal with prejudice and the granting of it will mean that a party will effectively lose his day in court/20

In the case at bar the dismissal sanction was inappropriate for the situation where there was the failure of a witness to appear for a deposition. This error, combined with the harshness of the dismissal with prejudice sanction, compels us to reverse the judgment of the superior court and the case is remanded for reinstatement of appellant Schandelmeier’s complaint.21

Reversed and remanded.

(dissenting).

I respectfully dissent. I would sustain the order of the superior court on the basis of the precedent established in Wellmix, Inc. v. City of Anchorage, 471 P.2d 408 (Alaska 1970), which is discussed in the majority opinion.

Here, as in Wellmix, appellee’s motion for sanctions for appellant’s obstruction of

discovery was not opposed until after the motion had been granted and the order of dismissal had been entered. Appellant’s August 10, 1972, motion to vacate and reconsider was merely a belated attempt to present to the trial court what should have been presented earlier, i. e., his reason for opposing appellee’s March 3, 1972, motion to dismiss.

In view of the marked similarity between the instant case and Wellmix, I would hold that Schandelmeier’s appeal, insofar as it raises the merits of the dismissal, is untimely and should be dismissed.

Turning to the correctness of the decision denying appellant’s August 10, 1972, motion to vacate and reconsider, which we should review under Wellmix, I find no showing of the kind of mistake, inadvertence, surprise, excusable neglect or other reason justifying relief — the tests of Alaska Civil Rule 60(b)(1) and (6) — which required the court to set aside the order of dismissal in order to correct an injustice.

The main thrust of the motion to vacate challenged the court’s conclusion that timely opposition to Winchester’s motion to dismiss would have to be filed no later than March 16, 1972. Appellant read Alaska Civil Rule 77 (e) (2) as giving him until March 20, 1972, the date scheduled for hearing on the motion, to file opposition. The superior court’s computation of time for filing opposition was correct. There is no need to belabor appellant’s computation here. Suffice it to say that it is wrong. Inasmuch as appellant offered no explanation for his failure to file timely opposition, the court was not required to consider his other arguments going to the merits of the dismissal.

*76The dismissal of an action with prejudice is a harsh sanction and should be imposed only in extreme circumstances. Mely v. Morris, 409 P.2d 979, 982 (Alaska 1966). But, judicious imposition of a harsh sanction does not mean non-imposition. Finding no error in the court’s disposition of the August 10 motion, I would affirm the order denying the motion to vacate.