Alamogordo Improvement Co. v. Palmer
| Decision Date | 29 May 1923 |
| Docket Number | No. 2689.,2689. |
| Citation | 216 P. 686,28 N.M. 590 |
| Parties | ALAMOGORDO IMPROVEMENT CO.v.PALMER ET AL. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
This court may judicially notice the record in each of two cases brought here to review the same judgment upon the same appeal.
Section 38, c. 43, Laws 1917, requiring decision of cases upon the record alone, refers to questions arising on the merits, and not to collateral procedural questions.
A broad restriction upon the power to judicially notice its own records is not well suited to an appellate court.
Where a cost bond has in fact been duly given, an affirmance may be had by the appellee under section 22, c. 43, Laws 1917, by simply showing what the statute requires, which does not include the cost bond.
An application to amend the decree upon the ground that the court below, although it had intended to award relief, had in fact failed to do so through inadvertence and mistake, is an application for a “final order affecting a substantial right made after final judgment,” as contemplated by section 2, c. 43, Laws 1917, and the judgment upon such an application is not a final judgment denying relief upon the merits. The return day of the appeal from such a judgment is sixty days after the appeal was allowed. Section 21, c. 43, Laws 1917.
Appeal from District Court, Otero County; H. P. Owen, Judge.
Suit by the Alamogordo Improvement Company against Lillie A. Palmer and others. From a decree for plaintiff, defendants appeal. On motion to dismiss appeal. Motion granted, and appeal dismissed.
An application to amend the decree upon the ground that the court below, although it had intended to award relief, had in fact failed to do so through inadvertence and mistake, is an application for a “final order affecting a substantial right made after final judgment,” as contemplated by section 2, c. 43, Laws 1917, and the judgment upon such an application is not a final judgment denying relief upon the merits. The return day of the appeal from such judgment is sixty days after the appeal was allowed.
Lee R. York, of Alamogordo, and Renehan & Gilbert, of Santa Fé, for appellants.
J. L. Lawson, of Alamogordo, for appellee.
On December 30, 1922, we handed down an opinion in this case dismissing the appeal. We find upon a re-examination of the record that the action taken at that time was based upon a misunderstanding of the condition of the record, and the opinion will therefore be withdrawn. It appears from the transcript that this suit was brought under the statute to adjudicate water rights upon the Fresnal and La Luz Creeks in Otero county, which resulted in a final decree, dated July 4, 1918, establishing water rights in favor of various persons named in the decree. Under date of December 30, 1918, this decree was slightly modified and corrected by changing the amounts of water adjudged to some of the parties, and in other minor particulars. The decree stood in this form until June 14, 1921, when there was filed in the case a motion to correct a mistake in the decree. This motion is to the effect that one of the parties interested, who is appellants' grantor, by oversight and inadvertence of the court, was omitted from the decree, and received no allotment of water rights, although the evidence, it was alleged, authorized and required such allotment. Objections were filed to the motion upon the ground that the district court had lost jurisdiction of the judgment, and that the appellee had been guilty of laches in making the application, and that there was no evidence in the record showing the facts claimed by the applicants to justify the court in modifying the decree. The cause came on before the court on July 19, 1921, upon said application, and the same was denied. Thereupon, on the same day, an appeal was prayed and allowed from the judgment denying said application. A cost bond was duly filed within the required time. Nothing further was done by appellants in the way of perfecting their appeal until October 5, 1921, when they applied to the district court for and were granted an extension of 60 days' time from that date within which to file a complete transcript of the record below in this court.
In the meantime, on the same day that this extension was granted by the district court, the appellee appeared in this court with a skeleton transcript, showing the motion of the appellants to correct the decree, and the action of the district court in denying said application, and the granting of the appeal from said denial on July 19, 1921, and moved the court to docket the cause and affirm the judgment, upon the theory that the order complained of was a final order made in the cause after the final decree had been rendered, and that the return day limit was, under the statute (sections 2 and 21, chapter 43, Laws 1917), 60 days, in appeals of this class, and that the 60-day period had expired, and that the appellants had failed to file a transcript in this court. On the following day this motion to docket and affirm the judgment was granted, and the judgment of the court below was affirmed, and the mandate of this court to reinstate the cause and to enforce the judgment below was issued on October 31, 1921. This cause, docketed on the skeleton transcript, was cause No. 2682 upon the docket of this court. The transcript in the present appeal, cause No. 2689, was filed in this court on October 22, 1921, and on November 17, 1921, a motion to dismiss the present appeal was filed on the ground that the cause had been finally disposed of, and the judgment below affirmed, upon the skeleton transcript as mentioned above. This motion to dismiss this present appeal appears to have been denied by this court, although upon what ground does not appear, there having been no opinion filed, and the reason for such action is not now within the recollection of any member of the court. It was probably based upon the fact that there was doubt in the mind of the court as to whether the motion to reform the decree was not in substance and effect a bill of review, and, if so, the return day of this appeal would be 90 days from the date of the appeal, instead of 60 days. However, we regard the question of the dismissal of this appeal as still before the court; the action heretofore taken being interlocutory in character.
[1] 1. It appears from an examination of the transcript, No. 2682, and the present transcript, No. 2689, that the two cases are identical. The parties, the subject-matter, the question presented, and the appeal granted are identical in each. In order to avoid this consequence, counsel for appellants call our attention to the rule that a court may not take judicial notice in one case of its records in another case, notwithstanding the two cases are between the same parties and concerning the same subject-matter. They cite and rely upon several of our decisions and other authorities. In Oliver v. Enriquez, 16 N. M. 322, 117 Pac. 844, Ann. Cas. 1913A, 140, which was an action in ejectment, it became material to show in evidence a decree in a suit to quiet title between the same parties, whilch was refused by the court upon the ground that the decree had subsequently been vacated. This he could not do, unless he could take judicial notice of the subsequent proceedings vacating the decree. In passing upon this question we said:
It is to be observed that in that case there were two separate and distinct cases, in which the issues between the parties were necessarily different, although they related to the same subject-matter. In the case at bar this condition is not present. Here the parties, issues, and subject-matter are identical in both cases. In Elgin v. Gross-Kelly & Co., 20 N. M. 450, 150 Pac. 922, L. R. A. 1916A, 711, it became material to show that one of the parties to the cause had become insolvent. No evidence whatever of that fact appeared in the transcript, but the appellee sought...
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Public Service Co. of N. M. v. First Judicial Dist. Court In and For Santa Fe County, Division 1
...In support of its contention that the denial of this motion is an appealable order petitioner cities us to Alamogordo Improvement Co. v. Palmer, 1923, 28 N.M. 590, 216 P. 686. An examination of that case, however, reveals that it is not in point. First, the appeal from the order denying the......
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Davis v. Westland Development Co.
...A broad restriction on our power to take judicial notice of our records could lead to absurd results. Alamogordo Improvement Co. v. Palmer, 28 N.M. 590, 216 P. 686 (1923). We believe we can safely assume that the trial court was familiar with any mandate it had issued requiring its approval......
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Miller v. Smith
...but the extent and limit of our power to take judicial notice of the records in other cases has not been defined. Alamogordo Improvement Co. v. Palmer, 28 N.M. 590, 216 P. 686. The Supreme Court is a court of review and on an appeal does not consider questions which have not been passed upo......
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Gutierrez v. Brady., 4593.
...of section 2 of the statute.” (Emphasis supplied). In the Jordan case we cited our former decision in Alamogordo Improvement Co. v. Palmer, 28 N.M. 590, 216 P. 686, 689, in support. From an examination of the record in that case, it appears that the attorneys for appellants, resisting the m......