Adams v. Tatsch

• Decision Date: 28 June 1961
• Docket Number: No. 6739,6739
• Citation: 362 P.2d 984,68 N.M. 446,1961 NMSC 85
• Parties: Jack ADAMS, Plaintiff-Appellant, v. Frank TATSCH, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 984

362 P.2d 984

68 N.M. 446

Jack ADAMS, Plaintiff-Appellant, v. Frank TATSCH, Defendant-Appellee.

No. 6739.

Supreme Court of New Mexico.

June 28, 1961.

Catron & Catron, Santa Fe, for appellant.

Keleher & McLeod, John B. Tittmann, Russell Moore, Albuquerque, for appellee.

MOISE, Justice.

Appellant has filed a motion for rehearing and in support thereof shows the court that on December 15, 1959, the motion seeking allowance of an appeal and a form of order allowing appeal prepared for signature by the Judge were mailed to the Judge at his office in Aztec, New Mexico. On December 21, 1959, the Judge signed the order and mailed it together with the motion and a covering letter of transmittal to the court clerk in Santa Fe. At the same time a copy of the letter of transmittal was mailed to counsel for each of the parties to the action. Appellant's counsel received his copy in the mail on December 22, 1959. No reason is evident why the documents were not shown filed by the clerk until December 24, 1959. A number of possibilities present themselves. Was the letter to the clerk delayed in the mail or in the post office, either in Aztec or Santa Fe, because of the Christmas rush? Was it received in the clerk's office but misplaced for a day or two or for some other reason not shown filed until December 24, 1959? It is evident that it should have been received on December 22, 1959, the day appellant's counsel received his copy of the letter or on December 23 at the latest, and under ordinary circumstances would have been filed in ample time to be within the 30 days allowed for taking an appeal. Supreme Court Rule 5, subdivision 1 (Sec. 21-2-1(5), subd. 1, N.M.S.A.1953).

Under this rule, failure to obtain timely allowance of an appeal is jurisdictional. Chavez v. Village of Cimarron, 65 N.M. 141, 333 P.2d 882. Although the record as originally presented to us disclosed the motion and order allowing the appeal to have been filed one day late, without any explanation or reason for the delay, it now appears that counsel for appellant were diligent in their efforts and acted within ample time to accomplish timely allowance of the appeal. It is further shown that the order was properly mailed by the court with more than enough time for it to have been received by the clerk before the 30 days elapsed. Under such circumstances there is a presumption of its receipt in the due course of mail. Associated Petroleum Transport, Limited v. Shepard, 53 N.M. 52, 201 P.2d 772. There being no proof to the contrary, the fact it was filed one day late does not overcome this presumption. The reason for the delay in filing being unexplained we do not think appellant should be held responsible. Central Paper Co. v. Commissioner of Internal Revenue, 6 Cir., 199 F.2d 902.

In Jaritas Live Stock Co. v. Spriggs, 42 N.M. 14, 74 P.2d 722, we held in a case where the motion for an appeal was mailed to the trial judge on the last day for allowing an appeal and the order signed by the judge the day after the three month period then provided for appeal had expired, that the appellant having filed his application within time and having then proceeded without delay to have the order allowing the appeal signed, he was within the spirit of the rule and the motion to dismiss the appeal was denied.

In the case of William K. Warren Foundation v. Barnes, 67 N.M. 187, 354 P.2d 126, 127, we referred to Jaritas Live Stock Co. v. Spriggs, supra, as 'rather doubtful authority,' but we also said concerning appellants' efforts there that any claim that they had proceeded 'without delay' was negated by the amount of time that elapsed between the filing of the motion and the entry of the order. The language would seem to recognize that under circumstances where counsel had proceeded diligently and 'without delay' and where, as here, nevertheless, the appeal was not shown on the record to have been allowed until the thirty-first day after entry of the judgment appealed from, the failure would not be fatal to appellant's right nor deprive us of jurisdiction.

Although we would reiterate that whereas we entertain considerable reservation concerning the application given to the rule under the facts of Jaritas Live Stock Co. v. Spriggs, supra, as indicated in what we said in William K. Warren Foundation v. Barnes, supra, we are clear that the rule as there announced is a proper one to be applied under the facts here present. Accordingly, the opinion heretofore filed dismissing this appeal is withdrawn.

The plaintiff-appellant (hereinafter referred to as plaintiff) sued the defendant-appellee (hereinafter referred to as defendant) for damages claimed to have resulted from false statements and charges allegedly maliciously made by defendant about plaintiff.

The plaintiff in his complaint alleged that he was a highway contractor and that pursuant to contract with the State of New Mexico, he had constructed a project known as the Lordsburg Urban Highway Project which was completed about January 29, 1958. Plaintiff further alleged that defendant was a member of the Highway Commission of the State of New Mexico, and that at a meeting of the Commission held April 23, 1959, and with members of the press present, he displayed a section or piece of concrete which he asserted was taken from a certain drainage structure in the Lordsburg Project built by plaintiff, and further stated that the specifications for the structure called for and the State of New Mexico was paying for 6 inches of concrete of certain specifications and reinforced with steel wire, whereas as evidenced by the section of the structure displayed the thickness was 1 1/4 to 2 inches and there was no steel wire reinforcing, and further charged that the fault was plaintiff's. It was further alleged that defendant asked that all of plaintiff's privileges be withdrawn and that he be barred from bidding on future highway jobs, and that defendant stated that he felt the plaintiff was liable to civil suit and that the actions of plaintiff were 'premeditated, malicious and done with intent to defraud the state and federal government.'

Plaintiff further alleged that the charges as made were false, defamatory per se, 'were recklessly and wilfully made with intent to injure plaintiff, both in his character and in his business,' and the publication by defendant amounted to libel from which plaintiff suffered damages to the extent of $250,000.

Defendant filed a motion to dismiss on the ground that the complaint failed to state a claim upon which relief could be granted. After argument, the motion was sustained, whereupon plaintiff requested permission to amend his complaint by adding a new paragraph thereto reading as follows:

'That the charges so made by defendant against plaintiff were not relevant or pertinent to any inquiry or action with respect to, or investigation of, the said Lordsburg Urban Highway Project, or plaintiff's work on or connection with said project, or the performance by him of his contract for the construction thereof, then pending before said Commission, the said Highway Department or any other State Agency, Department or Branch of government, and that said charges were so made, under the circumstances alleged, recklessly, wilfully and maliciously, and outside of the scope of any duty or authority imposed upon defendant or vested in him by law or otherwise, whether as a member of said Commission or otherwise.'

Leave to amend was denied and an order entered dismissing plaintiff's complaint with prejudice. This appeal followed.

Accordingly, we have presented for decision the question of whether or not defendant, a member of the State Highway Commission is immune from liability for slanderous statements made in a meeting of the commission with the press present and at a time when nothing concerning the matter about which the statements were made was pending before the commission.

Defendant claims that he is absolutely immune under the law and cites the rule as stated in 3 Restatement of the Law of Torts, Sec. 591, which reads as follows:

'The President of the United States and the Governor of any State or Territory thereof, cabinet officers of the United States and the corresponding officers of any State or Territory thereof are absolutely privileged to publish false and defamatory matter of another in the exercise of an executive function, if the matter has some relation to the executive proceeding in which the officer is acting.

'Comment:

'a. Complete freedom in performing the duties of the important executive offices of the Nation and State requires the absolute privilege to publish defamatory matter of others when such publications are incidental to the performance of the duties of the office. The public welfare is so far dependent upon a reasonable latitude of discretion in the exercise of functions of high executive offices that the incumbents thereof may not be hindered by the possibility of a civil action for defamation in connection therewith.

'b. The privilege stated in this Section is absolute. Hence no action for defamation can be maintained against any one of the designated executive officers irrespective of his purpose in making the publication * * *.'

This court, in Stewart v. Ging, 64 N.M. 270, 327 P.2d 333, while concluding that absolute privilege was not present under the fact of that case, cited Prosser on Torts. The rule stated by Prosser in his work (2nd Ed.), Sec. 95, is as follows:

'The defendant may be privileged to publish defamation for the protection or furtherance of a public or private interest recognized by the law as entitled to such protection * * *

'a. Those absolutely immune from responsibility, without regard to the defendant's purpose or motive, or the reasonableness of his conduct. These include:

'(1) Judicial proceedings.

'(2) Legislative proceedings.

'(3) Proceedings of executive officers charged with responsibility of importance. * * *'...