Chavez v. Village of Cimarron

• Decision Date: 31 December 1958
• Docket Number: No. 6408,6408
• Parties: Sabino CHAVEZ, Administrator of the Estate of Federico Juan Chavez, deceased, Plaintiff-Appellant, v. The VILLAGE OF CIMARRON, a Municipal Corporation of the State of New Mexico, and Gilbert Caldwell, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 882

333 P.2d 882

65 N.M. 141

Sabino CHAVEZ, Administrator of the Estate of Federico Juan

Chavez, deceased, Plaintiff-Appellant, v. The VILLAGE OF CIMARRON, a Municipal Corporation of the

State of New Mexico, and Gilbert Caldwell,

Defendants-Appellees.

No. 6408.

Supreme Court of New Mexico.

Dec. 31, 1958.

Donald A. Martinez, Las Vegas, for appellant.

John B. Wright, Paul A. Kastler, Raton, for appellees.

McGHEE, Justice.

The appellant, plaintiff below, has filed herein his motion asking this Court to recall the mandate issued by it on September 4, 1958, and praying leave to file herein his motion for rehearing on the order entered on September 3, 1958 dismissing his appeal from an order holding barred his complaint in an action wherein he sought damages against the defendant for the wrongful death of his decedent.

The defendant Caldwell was the Marshal of the Village of Cimarron, and at the time of the hearing below he was by common consent dropped as a defendant, thus leaving the village the sole defendant.

The trial judge upheld the contention of the village that plaintiff's cause of action was barred by the provisions of Sec. 23-1-23 N.M.S.A., 1953, for the reason that the suit had not been filed against the village within one year from the date of the alleged tort, and directed that an order of dismissal be drawn by the defendant's attorney, submitted to plaintiff's attorney, and then forwarded to him at Portales, New Mexico, for signature. This course was followed, the order was signed and forwarded to the clerk of the court and it was entered on June 18, 1956.

A motion for an appeal and an order allowing it were entered on August 14, 1956, almost sixty days after the entry of the order of dismissal, instead of within thirty days as our Supreme Court Rule 5(1), as amended, requires, Sec. 21-2-1(5)(1) N.M.S.A., 1953.

Following the dismissal of the appeal by this Court, the plaintiff moved in the district court for an order in said cause vacating the order from which an appeal had been taken and dismissed here. At the hearing on this motion the district court made and entered the following order:

'* * * The above entitled matter having come on for the consideration of the Court upon Plaintiff's motion to vacate and set aside the Judgment made and entered herein on the 18th day of June, 1955, (1956) and the Court having read and considered said motion, and being now fully advised and informed in the premises, and satisfied therewith, Finds:

'1. That this matter was heard before the Honorable E. T. Hensley, Jr., District Judge, sitting herein by designation of the Supreme Court of the State of New Mexico, on the 8th day of June, 1956.

'2. That at the conclusion of the hearing on said date, the Court announced its decision sustaining the Defendant's Fourth Defense, and instructed Defendant's attorney as follows:

"Let an order be prepared to that effect; submit it to counsel for the plaintiffs so that he may save his exceptions that he has noted here this morning in his argument, and when received with those provisions it will be signed and forwarded to the Clerk for filing.'

'3. That pursuant to the foregoing instructions of the Court, defendant's attorney, John B. Wright, prepared an appropriate Order and submitted the same to plaintiff's attorney, who approved it as to form and mailed it to the Honorable E. T. Hensley, Jr., at Portales, New Mexico, with the request that he be advised as to the date the same was signed.

'4. That Plaintiff's attorney was not notified as to the date of the signing of said Order, or of the date of its entry, and as a result thereof failed to file his motion for allowance of appeal within the time provided by the rules, and that such failure was the result of mistake, inadvertence and excusable neglect, in that Plaintiff's attorney relied on the Court to notify him of said dates, and in that this case is a Colfax County case, the trial judge resides in Portales, New Mexico, and Plaintiff's attorney resides in Las Vegas, New Mexico, and communication between those concerned was thus rendered more difficult.

'5. That Plaintiff is entitled to relief from said Judgment, and that such relief is justified, in that Plaintiff, by reason of the premises, has been denied his right of appeal and his right to have said Judgment reviewed, and that said Judgment should be vacated, and re-entered, in order to afford Plaintiff an opportunity to take an appeal from the same, to the end that said Order might be reviewed, upon appeal, upon its merits, the real parties in interest herein being a minor widow and an infant child.

'6. That good cause has been shown for the granting of said motion.

'Now, Therefore, It Is Hereby Ordered By the Court, that the Judgment, or Order, made and entered herein on the 18th day of June, 1956, be, and the same hereby is, vacated and set aside.

'It Is Further Ordered By the Court that Plaintiff's attorney forthwith prepare and submit a new Judgment, or Order, en haec verba, to be made and entered herein following the entry of this Order.

'Dated this 3rd day of January, 1958.

'E. T. Hensley, Jr., District Judge.'

A new judgment was then entered in accordance with the order, following which the plaintiff asked for and secured an order granting an appeal from the new and substituted order dismissing plaintiff's complaint.

We sustained a motion to dismiss the second appeal, and it is for relief from such order the plaintiff now seeks relief by way of an order vacating the dismissal. The motion to dismiss the second appeal was that it was an effort on the part of the plaintiff to escape the effect of failure to prosecute a timely appeal from the first order, which the plaintiff frankly admits, asserting at the same time that he was caught in such position through no fault of his own, in that he relied upon the District Judge notifying him of the signing and mailing of the order or judgment of dismissal.

We have held many times that the timely allowance of an appeal is jurisdictional to place a case on the docket of this Court for review. A few of them are: De Fayette v. Bowman, 25 N.M. 296, 181 P. 427; Simmers v. Boyd, 26 N.M. 208, 190 P. 732; Albuquerque Gun Club v. Middle Rio Grande Conservancy District, 42 N.M. 8, 74 P.2d 67; State v. Arnold, 51 N.M. 311, 183 P.2d 845; Breithaupt v. State, 57 N.M. 46, 253 P.2d 585; Public Service Company of New Mexico v. First Judicial District Court, 65 N.M. 185, 334 P.2d 713.

The plaintiff relies on District Court Rule 60(b) as justification for what was done by the District Court in vacating the first order or judgment, placing special reliance on subsection (6). The rule reads:

'On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or...