Bank of N. M. v. Earl Rice Const. Co.

• Decision Date: 13 May 1968
• Docket Number: No. 8507,8507
• Parties: BANK OF NEW MEXICO, a banking corporation, Plaintiff-Appellee, v. EARL RICE CONSTRUCTION COMPANY, Inc., Intervenor-Appellant.
• Court: New Mexico Supreme Court

Page 790

440 P.2d 790

79 N.M. 115

BANK OF NEW MEXICO, a banking corporation, Plaintiff-Appellee, v. EARL RICE CONSTRUCTION COMPANY, Inc., Intervenor-Appellant.

No. 8507.

Supreme Court of New Mexico.

May 13, 1968.

[79 NM 115] Dolan & Clear, Menig & Sager, Toulouse, Rudd, Gallagher & Walters, Albuquerque, for appellant.

Marron & Houk, Dan A. McKinnon, III, Albuquerque, for appellee.

OPINION

NOBLE, Justice.

We issued the following mandate in a prior appeal, Bank of New Mexico v. Rice, 78 N.M. 170, 429 P.2d 368:

'NOW, THEREFORE, this cause is hereby remanded to you with directions to set aside the present judgment and enter a new judgment which (1) awards plaintiff judgment against Earl B. Rice and Lahoma Rice jointly and severally on the promissory notes, in the amount of $64,754.80; (2) awards Earl Rice Construction Company, Inc. judgment against Plaintiff on its breach of contract claim, in the amount of $5,000.00 compensatory damages and $50,000.00 punitive damages; and (3) awards judgment in favor of Plaintiff on the counterclaim of Earl B. Rice. The successful parties are to recover their costs in district court; costs on appeal are to be paid equally by Plaintiff, Rice and the Corporation.'

Neither the opinion nor the mandate in the former appeal specifically directed the date from which interest should run on the new judgment which the lower court was directed to enter. We have heretofore said that on remand, the district court has only such jurisdiction as the opinion and mandate of the appellate court specify. Gruschus v. C. R. Davis Contracting Co., 77 N.M. 614, 426 P.2d 589; Sproles v. McDonald, 74 N.M. 243, 392 P.2d 584; Chronister v. State Farm Mut. Auto. Ins. Co., 72 N.M. 159, 381 P.2d 673; Primus v. Clark, 58 N.M. 588, 273 P.2d 963. Accordingly, the trial court, on remand, determined that interest could not be awarded from the date of the original judgment, saying:

'And it further appearing to the Court that pursuant to the aforesaid Mandate no interest can be awarded to any party upon the original judgment, or any part thereof, but that interest can only run from the entry of this judgment.'

The parties appear to agree that the following is the correct rule where the judgment is only modified on appeal:

'In most cases where a money award has been modified on appeal, and the only action necessary in the trial court has been compliance with the mandate of the appellate court, the view has been taken that interest on the award as modified 'should run from the same date as if no appeal had been taken, that is, ordinarily, from the date of entry of the verdict or judgment. It has been so held regardless of whether the appellate court reduced or increased the original award.'

Annot., 4 A.L.R.3d 1221, 1223. There is no agreement, however, about the effect of our former opinion. Earl Rice Construction Company argues that even though the opinion and mandate, in form, reversed the trial court, the effect was only to modify the original judgment and affirm it as modified. The Bank, on the contrary, urges the view that the language of our opinion and mandate reversed and wiped out the former judgment and that the following rule, found in the above annotation, 4 A.L.R.3d 1221, 1223, is applicable:

'* * * (E)ven where the action of the appellate court has had the effect of more or less definitively fixing the amount which the judgment creditor is to receive, by increasing or reducing the amount originally awarded, the view has sometimes been taken that if the action of the court amounted to an actual reversal, having the effect of wiping out the original judgment or decree, the interest should run only from the time when the amount of the new award is fixed, whether that is done directly by the appellate court or by the trial court's compliance with the appellate mandate.'

This court has not heretofore had occasion to determine the precise question now presented. As long ago as 1891, the United States Supreme Court, in Kneeland v. American Loan & Trust Co., 138 U.S. 509, 11 S.Ct. 426, 34 L.Ed. 1052, said:

'* * * While the former decrees were in terms reversed, and the cases remanded for the entering of new decrees, yet the terms of those new decrees...