Baker v. Sojka

• Decision Date: 26 October 1964
• Docket Number: No. 7487,7487
• Citation: 74 N.M. 587,396 P.2d 195,1964 NMSC 234
• Parties: Martha E. BAKER, Plaintiff-Appellant, v. Violet R. SOJKA, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 195

396 P.2d 195

74 N.M. 587

Martha E. BAKER, Plaintiff-Appellant, v. Violet R. SOJKA, Defendant-Appellee.

No. 7487.

Supreme Court of New Mexico.

Oct. 26, 1964.

John Hogan Stewart, Albuquerque, Annette Reese Quintana, Santa Fe, for appellant.

J. L. Leftow, Sutin & Jones, Albuquerque, for appellee.

CARMODY, Justice.

Plaintiff appeals from the trial court's order dismissing her complaint with prejudice.

Prior to any discussion of the merits of the appeal, we will dispose of a motion to dismiss grounded upon plaintiff's failure to comply with rule 5(5) (Sec. 21-2-1(5)(5), N.M.S.A.1953) in her notice of appeal.

The notice of appeal stated, 'Plaintiff hereby gives notice that she is taking appeal in the above-entitled cause.' Defendant urges that such a notice is deficient under the rule in failing to 'designate the judgment, order or part thereof appealed from. * * *'

Although our rule 5(5) is not identical with rule 73(b) of the federal rules of civil procedure, it was patterned from the federal rule in an effort to bring our procedure for taking an appeal in line with that utilized in the federal courts. Originally, the federal courts construed the provisions of rule 73(b) rather strictly, but following the decision of the Supreme Court of the United States in State Farm Mutual Automobile Ins. Co. v. Palmer, 1956, 350 U.S. 944, 76 S.Ct. 321, 100 L.Ed. 823, the circuit courts of appeal have liberalized their construction of the rule and hold that, even though the notice of appeal is deficient, if it is apparent therefrom that it is the intention of the appellant to appeal and if the appellee has not been misled, the notice of appeal will be sustained. See Railway Express Agency v. Epperson, (8th Cir. 1957), 240 F.2d 189; Nolan v. Bailey, (7th Cir. 1958), 254 F.2d 638; and Holz v. Smullan, (7th Cir. 1960), 277 F.2d 58. In other words, the seventh and eighth circuit courts are in agreement that the notice of appeal should be construed to reach the merits and not be dismissed by the use of strict or technical application of the rules. We believe the interpretation given the rule in the above-cited cases should be applied to the notice of appeal in this case.

In the instant case, the intent of the plaintiff is plain from the notice that she wished to take an appeal, and in view of the fact that there was only the one order by the trial court, the defendant could not have been misled by the defect. Although the defendant cites numerous cases in support of the motion, they are all distinguishable in that the notice was not timely, or there were several appealable orders, and the appellate court was unable to infer the appellant's intent from the text of the notice. Here, the notice was timely filed and, as stated, there was only the one order from which an appeal could be taken. Therefore, the motion to dismiss the appeal is denied.

The issue on the merits relates to the claimed arbitrary refusal by the trial court to consider a motion for continuance and whether its dismissal of the complaint with prejudice constitutes an abuse of judicial discretion.

Plaintiff had filed suit in the district court of Bernalillo County, seeking damages as a result of an automobile accident. The case was originally set for jury trial in April 1963, but was continued because of plaintiff's illness. At plaintiff's request, the case was reset for hearing as the first case to be tried to a jury on June 17, 1963. Three days before the time set for trial, counsel for plaintiff orally sought a continuance, but the judge told him the continuance would not be granted. On the day set for trial, another firm of attorneys appeared in court on behalf of plaintiff and filed a motion seeking to have the setting vacated on the ground that plaintiff was absent from the state dur to the illness of her daughter-in-law, and, secondly, that an expert witness was on vacation and therefore unavailable. Attached to this motion was an affidavit from the original attorney, stating nothing other than that an expert witness was on vacation and not expected back until July 8th and that the witness was essential in the trial of the case. There was...