Bd. of County Com'rs of Quay County v. Wasson, 3777.

• Decision Date: 06 September 1933
• Docket Number: No. 3777.,3777.
• Citation: 37 N.M. 503,24 P.2d 1098
• Parties: BOARD OF COUNTY COM'RS OF QUAY COUNTYv.WASSON.
• Court: New Mexico Supreme Court

37 N.M. 503

24 P.2d 1098

BOARD OF COUNTY COM'RS OF QUAY COUNTY

v.WASSON.

No. 3777.

Supreme Court of New Mexico.

Sept 6, 1933.

Appeal from District Court, Quay County; Harry L. Patton, Judge.

Proceedings by the Board of County Commissioners of Quay County to condemn a right of way for road purposes across lands belonging to J. R. Wasson. From an order vacating a final judgment for defendant, he appeals.

Reversed and remanded, with instructions.

Denied motion filed within statutory time, to vacate final judgment cannot be refiled after such time and subsequent motion considered as amended original motion. Comp.St.1929, § 105-801.

Carl A. Hatch, of Clovis, for appellant.

J. C. Compton, of Portales, E. M. Grantham, of Clovis, and James L. Briscoe, of Tucumcari, for appellees.

ZINN, Justice.

The board of county commissioners of Quay County instituted proceedings to condemn a right of way for road purposes across lands belonging to the appellant. He was allowed $37.20 damages, to which allowance the appellant objected. By stipulation it was agreed to vacate the allowance and permit a new appraisal. The new appraisal allowed the appellant damages in the sum of $375. An order was entered May 28, 1931, approving and confirming the appraisal, and judgment was rendered against the appellee and in favor of the appellant in said sum. On, June 16, 1931, the appellee filed a motion to vacate said judgment, and prayed to have the original appraisement confirmed and approved, and on June 22, 1931, the motion was denied and an order of the court entered accordingly. On July 25, 1931, the appellee filed another motion to vacate the final judgment and to have the original appraisement confirmed and approved, and in support thereof alleged that the sum of $375 damages assessed by the board of appraisers last named is unconscionable, excessive, unreasonable, unjust, and inequitable, being in substance the allegations in support of the original motion to vacate, which last motion was on the same day sustained by the court, and an order entered accordingly, to which order the appellant excepted, and from which the appellant brings the case here for review.

In this case, when the appellant objected to the $37.20 award, a stipulation was entered into by the appellant and the appellee providing that the court could make an order setting aside the original award, and the appellant could recommend the name of one person, the appellee another, and the two named would jointly recommend a third, all three must then be approved by the court, and the three persons so designated would be appointed by the court as commissioners to appraise and assess the damages sustained by the appellant, and if such three names so selected and recommended be not designated by the court, then three other suitable qualified and competent persons were to be selected by the parties to act as appraisers. All parties agreed that they would accept the award by the new commissioners and that a judgment should be entered for the award as made by the commissioners. We assume that the commissioners were selected as stipulated, and judgment was duly entered upon their report.

[1][2] The only error assigned by appellant is that the court on July 25, 1931, could not set aside the judgment rendered on May 27, 1931, for the reason that it had lost jurisdiction of the same.

It is contended by the appellee that the appellant failed to object to the court hearing the motion filed July 25th, and that the appellant did not point out to the court below the error which the appellant now urges the trial court did make, and that the appellant cannot raise such error in this court for the first time.

The rule is clear unless the error complained of has been first called to the attention of the trial court, and objections first made there pointing to the error about to be made, that we will not examine the record; but to this rule is a well-recognized exception, which is to the effect that the court will examine the record and pass upon a jurisdictional question when first raised on appeal, which is the question in this case. Fullen v. Fullen, 21 N. M. 212, 153 P. 294; Baca v. Perea, 25 N. M. 442, 184 P. 482.

[3] The appellee also urges this court to sustain the order of the trial court vacating the final judgment because the trial court, being a court of general jurisdiction, has inherent power to vacate its judgments rendered by consent or by confession for an indefinite period except as such power be limited by statute, and also that the judgment in this action does not come within the provisions of Comp. St. 1929, § 105-801 because it was not rendered in a case tried pursuant to the provisions of Comp. St. 1929, § 105-801, and there is no statutory limitation upon the power of the court to vacate this judgment.

This contention is without merit. Section 105-801 embraces and is applicable to all final judgments unless by statute otherwise excepted. Judgments by confession or consent are not excepted by statute.

That portion of Comp. St. 1929, § 105-801, applicable here, is as follows: “ Final judgments and decrees, entered by district courts in all cases tried pursuant to the provisions of this section shall remain under the control of such courts for a period of thirty days after the entry thereof, and for such further time as may be necessary to enable the court to pass upon and dispose of any motion which may have been filed within such period, directed against such judgment; Provided, that if the court shall fail to rule upon such motion within thirty days after the filing thereof, such failure to rule shall be deemed a denial thereof.”

That there is no logic to appellees' contention that the judgment is one not rendered on a case “tried” within the meaning of section 105-801, is easily demonstrated. Comp. St. 1929, § 105-808, defines the term “trial” as follows: “A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact.”

The Century Dictionary defines “trial” as follows: “The judicial investigation and determination of the issues between parties; that part of a litigation which consists in the examination by the court of the point, the hearing of the evidence, if any, and the determination of the controversy or final submission of the cause for such determination.”

While the word “trial” is a noun, the word “tried,” though a verb, is used in the statute involved in this case in the same sense. Phillips v. Vessells, 2 W. W. Harr. 490, 126 A. 51.

That there was a judicial examination of the issues both of law and fact as made up by the pleadings cannot be questioned, and we hold here that the case was tried and a final judgment within the meaning of section 105-801 was rendered on the issues by the trial court.

[4] We are then brought to a determination of whether or not the trial court on July 25, 1931, still had jurisdiction to vacate the judgment entered on May 28, 1931.

Before the court on July 25, 1931, could regularly vacate the final judgment theretofore rendered, the same must come within certain well-defined and established classifications, otherwise the trial court lost jurisdiction.

Having held that it is a judgment within the meaning of Comp. St. 1929, § 105-801, it necessarily follows that it either must be a judgment which the court can vacate in its discretion as provided by section 105-801, or a default judgment to bring it within the provisions of section 105-843, or an irregularly entered judgment to come within section 105-846, or a judgment which equity will vacate and set aside because of fraud, collusion, or other grounds, to correct which equity will extend its protective arm.

That the judgment does not come within the provisions of Comp. St. 1929, § 105-843, permitting the trial court for good cause shown to vacate default judgments is apparent, because this judgment was not a judgment rendered by default, and not coming within this exception, the appellee contends that it comes within the other three classifications.

[5][6] After contending that the judgment did not come within section 105-801, either because it is a judgment by confession or consent or because it was not “tried” within the meaning of said section 105-801, the appellee attempts to keep the judgment within section 105-801, by contending that if the court did fall into error in vacating the judgment on the 25th day of July, 1931, the action should be affirmed by this court because the trial court committed error against the appellee when he refused to vacate such judgment on the 22d day of June, 1931, and we should vacate the judgment, the result of which would leave the parties in the same situation as though the actions of the trial court in vacating the judgment were affirmed.

The appellee here is apparently seeking the aid of this court to sustain the court's action under rule XV, § 2, of the Rules of Appellate Procedure.

Whether the court was in error on June 22, 1931, when it refused to vacate the judgment, we are unable to determine from the record before us. It was a matter solely within the discretion of the court, and the appellee failed to submit any evidence to the court to move the court's discretion in their favor, and from the barren motion and order we can find no abuse of discretion. The appellee bases his claim of error in the court's refusal to sustain the first motion to vacate as an abuse of discretion on the fact that the final award was more than ten times the amount of the original award. The ratio between the final judgment and the original award standing alone indicates nothing.

In this situation we cannot aid the appellee. The trial court did not err on June 22, 1931, in denying the appellee's motion filed June 16, 1931.

[7] The appellee then attempts to sustain the court's action and keep the same within section 105-801 by contending that the motion sustained on July 25th was...