Chavez v. Village of Cimarron, 6408

• Docket Nº: No. 6408
• Citation: 333 P.2d 882, 65 N.M. 141, 1958 NMSC 145
• Case Date: December 31, 1958
• Court: Supreme Court of New Mexico

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.

Page 883

[65 N.M. 142] 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.

[65 N.M. 143] 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

Page 884

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.

[65 N.M. 144] '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...