Baca v. Sais

• Decision Date: 24 January 1940
• Docket Number: No. 4458.,4458.
• Parties: DE BACAv.SAIS et al.
• Court: New Mexico Supreme Court

44 N.M. 105

99 P.2d 106

DE BACA

v.SAIS et al.

No. 4458.

Supreme Court of New Mexico.

Jan. 24, 1940.Rehearing Denied Feb. 27, 1940.

Appeal from District Court, Bernalillo County; Irwin S. Moise, Judge.

Suit by Edmundo C. De Baca against Demetrio Sais and others, to recover the amount due on a note and foreclose a mortgage securing payment thereof. From an order denying plaintiff's bill of review, to which I. V. Gallegos was made an additional defendant, after entry of a foreclosure judgment ordering sale of only part of the mortgaged property, plaintiff appeals.

Judgment reversed, with directions.

The district court had jurisdiction of bill of review to correct or amend its judgment foreclosing mortgage by including omitted tract described in mortgage as part of property ordered sold for satisfaction of judgment, though such bill was filed over five months after entry of judgment.

Barnes & Corey, of Albuquerque, for appellant.

I. V. Gallegos, of Albuquerque, for appellees.

ZINN, Justice.

Appellant, plaintiff below, brought suit against appellees, defendants below, for judgment on a promissory note and to foreclose a mortgage given to secure payment of the note. In due time judgment was rendered in favor of appellant and against appellees for the amount due. A judgment of foreclosure was entered which ordered only a part of the property described in the mortgage to be sold to satisfy the judgment. Through error or mistake the judgment omitted other property described in the mortgage to be likewise sold.

The judgment was entered on Nov. 19, 1937. On Jan. 28, 1938, the referee appointed to make the sale filed her report showing the sale to appellant of the property described in the judgment. This report of the sale was approved by the court.

On April 14, 1938, appellant filed a motion for leave to file a bill of review and for an order granting process for the purpose of said bill of review and to add the name of I. V. Gallegos as a party defendant to said bill. This motion was granted on April 22, 1938, and the bill of review was filed the same day.

The bill set out in detail all of the proceedings had in the case alleging also that there was an error in the judgment of foreclosure whereby there was omitted therefrom a tract of land described in the mortgage, and that the failure to include this tract in the description was an error both in law and fact on the part of the court which deprived the appellant of rights belonging to him and which ought to be restored to him. The bill also alleged that such error arose without the knowledge and consent of the appellant or his attorney and was not in fact discovered by appellant until about 10 days before the filing of the bill of review.

Other matters are alleged in the bill of review which are not essential to a determination of the issue of law here presented.

The appellees filed a motion to strike the bill of review on four grounds, among which is the appellees' contention that the remedy is statutory and there is no law in the State of New Mexico which provides for a bill of review.

The trial court filed an order wherein it found that it had no jurisdiction to consider further and determine the matters set forth in the bill of review, and that the final judgment prayed to be reviewed by said bill of review had become res adjudicata. From this order denying the bill of review the appellant prosecutes this appeal.

There is thus presented the question whether or not a trial court has jurisdiction, five months after entry of its own judgment, to correct and amend such judgment to speak the truth.

[1] Appellees contend that the control over judgments of trial courts is fixed by statute and that beyond the limits marked out in the statutes they cannot go. To a certain extent this is true. In addition to the absolute control given courts over their judgments for a period of thirty days as found in 1929 Comp.St., Sec. 105-801, the trial courts are limited by statute in their control over default judgments and irregularly entered judgments. Comp.St. 1929, Sec. 105-843 as to default judgments. Sec. 105-846 as to judgments irregularly entered. There is no statutory regulation over the court as to the control it may exercise over judgments containing palpable or obvious errors however. Crichton et al. v. Storz et al., 20 N.M. 195, 147 P. 916; Zintgraff v. Sisney et al., 31 N.M. 564, 249 P. 108.

[2][3] If appellant was clearly and legally entitled to have had included in the judgment of foreclosure entered on Nov. 19, 1937, the tract omitted therefrom, and which appellant now seeks to include, then the court was in error in denying the bill of review on the theory that it had no jurisdiction.

In the case of Crichton et al. v. Storz et al., supra, an additional judgment was entered more than six months after the rendition of the final judgment which had been entered on default. The appellant questioned the validity of this additional judgment. We said:

“The practice in amending final decrees is stated in 5 Enc. Pl. & Pr. 1053, as follows:

“‘A final decree may be amended after enrollment and in a material point, where the amendment is not a matter as to which there could have...