Associates Discount Corp. v. Devilliers
| Decision Date | 21 September 1964 |
| Docket Number | No. 7490,7490 |
| Citation | 74 N.M. 528,1964 NMSC 218,395 P.2d 453 |
| Parties | ASSOCIATES DISCOUNT CORPORATION, Plaintiff-Appellee, v. W. Rodney DeVILLIERS, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
W. Rodney DeVillers, pro se.
Dolan, Clear and Jones, Thomas E. Jones, Albuquerque, for appellee.
This is an appeal from a money judgment, but we do not reach the merits because of the jurisdictional question involved.
Judgment was entered on May 17, 1963, and some fourteen days later, on May 31st, appellant filed and served a motion for new trial. Thereafter, notice of appeal was filed on July 24th, some sixty-eight days after the entry of judgment.
The whole question is whether the motion for new trial was timely filed so as to suspend the running of the time fo appeal. It is our considered judgment that the appeal was not timely.
It requires no citation of authority to state our oft-repeated holding that the timely allowance of an appeal is jurisdictional in order to place a case on the docket of the supreme court for review. Rule 5(1) (Sec. 21-2-1(5)(1), N.M.S.A.1953, 1965 Pocket Supp.) provides that appeals be taken within thirty days from the entry of any final judgment. The rule in addition, in part, states:
'.* * * If a timely motion is made pursuant to any of the District Court rules hereinafter enumerated, the renning of the time for appeal is terminated * * *.' (Emphasis added.)
That portion of the sentence quoted is identical to the language used in rule 73(a) of the Federal Rules of Civil Procedure, although, in certain other minor respects, our rule differs from the federal rule.
Our rule 59(b) (Sec. 21-1-1(59)(b), N.M.S.A.1953), which is identical with the similarly numbered federal rule, provides:
'A motion for a new trial shall be served not later than ten days after the entry of the judgment.'
What, then, is a timely motion for new trial? Although we have never had occasion to rule on this precise point, the federal courts have held, with surprising unanimity, and we agree, that a motion for new trial, unless made within the ten days provided, does not extend the time for appeal. See Wagoner v. Fairview Consolidated School District No. 5 (10th Cir.1961), 289 F.2d 480; and Hulson v. Atchison T. & S. F. Ry. Co. (7th Cir. 1961), 289 F.2d 726. See 7 Moore's Federal Practice, 2d ed., Secs. 73.09(4) and 73.09(6); and see also 6 Moore's Federal Practice, 2d ed., Sec. 59.09(1).
Thus appellant's motion for new trial was...
To continue reading
Request your trial
-
Garver v. Public Service Co. of New Mexico
...fail in this contention. It cites as its authorities the cases of Miller v. Doe, 70 N.M. 432, 374 P.2d 305, and Associates Discount Corp. v. DeVilliers, 74 N.M. 528, 395 P.2d 453. A reference to Miller v. Doe shows that the question of the timeliness of appeal therein related to the time fo......
-
Public Service Co. of N. M. v. Wolf
...concerned. Rule 5, Rules of the Supreme Court of New Mexico, which appears as § 21--2--1(5), N.M.S.A.1953; Associates Discount Corp. v. DeVilliers, 74 N.M. 528, 395 P.2d 453 (1964); Johnson v. Johnson, 74 N.M. 34, 390 P.2d 275 (1964); Miller v. Doe, 70 N.M. 432, 374 P.2d 305 (1962). In any ......
-
Marquez v. Wylie
...that the appeal was not timely under Rule 5(1) (§ 21--2--1(5)(1), N.M.S.A.1953, 1967 Pocket Supp.). In Associates Discount Corporation v. DeVilliers, 1964, 74 N.M. 528, 395 P.2d 453, we determined that a motion for new trial, unless made within ten days after jjdgment as provided by Rule 59......
-
Putelli v. Hardy
...effect of another section of Rule 59 in Montgomery Ward v. Larragoite, 81 N.M. 383, 467 P.2d 399 (1970); Associates Discount Corporation v. DeVilliers, 74 N.M. 528, 395 P.2d 453 (1964). We need not and do not here decide the applicability of Rule 59(e) or its effect upon the authority of th......