Garver v. Public Service Co. of New Mexico

• Decision Date: 12 December 1966
• Docket Number: No. 7939,7939
• Citation: 421 P.2d 788,1966 NMSC 261,77 N.M. 262
• Parties: Harriet GARVER and Robert W. Hillmeyer, Plaintiffs-Appellants, v. PUBLIC SERVICE COMPANY OF NEW MEXICO, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 788

421 P.2d 788

77 N.M. 262

Harriet GARVER and Robert W. Hillmeyer Plaintiffs-Appellants, v. PUBLIC SERVICE COMPANY OF NEW MEXICO, Defendant-Appellee.

No. 7939.

Supreme Court of New Mexico.

Dec. 12, 1966.

Courtney Vallentine, Albuquerque, for appellants.

W. A. Keleher, William B. Keleher, Albuquerque, for appellee.

PER CURIAM.

The opinion issued in this cause on October 17, 1966, is withdrawn and the following opinion substituted therefor. The Motion for Rehearing is otherwise denied.

OPINION

LaFEL E. OMAN, Judge, Court of Appeals.

This is an appeal by plaintiffs from an order dismissing their amended complaint. The parties will be referred to as plaintiffs and defendant and by their proper names.

The plaintiffs' complaint was filed on August 20, 1963. Answer thereto was filed September 23, 1963. On March 15, 1965, defendant filed a motion to dismiss the complaint for failure to state a claim upon which relief could be granted.

The motion was heard on March 15, 1965, and an order sustaining the motion was entered on March 22, 1965, whereby the complaint, which had been amended by certain interlineations, was dismissed and leave given the plaintiffs to file an amended complaint within ten days from the entry of the order.

On April 2, 1965, the plaintiffs filed their amended complaint. On April 13, 1965, defendant filed a motion to dismiss the amended complaint for failure to state a claim upon which relief could be granted.

The court entered an order of dismissal on June 4, 1965, wherein he found the motion to be well taken, and whereby he ordered the amended complaint dismissed. However, he further ordered '* * * that plaintiffs may, if they desire, file a second amended complaint within ten days from the entry of this order, otherwise said cause is dismissed with prejudice.'

The plaintiffs elected not to file a second amended complaint, but proceeded to perfect their appeal from the order of dismissal by filing their notice of appeal on June 7, 1965.

The first question to be considered is whether or not the appeal was prematurely taken. It is the position of defendant that since the order of June 4 dismissed the complaint with leave to amend within ten days from the entry of the order, otherwise the cause was dismissed with prejudice, this order was not final and thus not appealable until the ten days had elapsed. It particularly relies upon the cases of Midwestern Dev., Inc. v. City of Tulsa, 319 F.2d 53 (10th Cir.1963); Luke v. Ellis, 201 Ga. 482, 40 S.E.2d 85; Golucke v. Greene 76 Ga.App. 521, 46 S.E.2d 515; Javor v. Brown, 295 F.2d 60 (9th Cir.1961); Atwater v. North American Coal Corp., 111 F.2d 125 (2d Cir.1940); Cory Bros. & Co. v. United States, 47 F.2d 607 (2d Cir. 1931). The defendant must fail in this contention. Rule 5(2) of the Rules of the Supreme Court of New Mexico, which appears as § 21-2-1(5)(2), N.M.S.A.1953, provides in part:

'Appeals shall also be allowed by the district court, and entertained by the Supreme Court, in all civil actions, from such interlocutory judgments, orders or decisions of the district courts, as practically dispose of the merits of the action, so that any further proceeding therein would be only to carry into effect such interlocutory judgments, orders, or decisions * * *.'

The particular form of judgment, order or decision is of no consequence, so long as it can be ascertained therefrom what rights, if any, of the respective parties have been determined thereby. Welch v. Reese, 82 Cal.App. 27, 255 P. 250; United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 78 S.Ct. 674, 2 L.Ed.2d 721, 73 A.L.R.2d 235. See also annotation 73 A.L.R.2d 250 for a general discussion and citation of authorities on the matter of the formal requirements of a judgment or order as regards appealability.

The order of dismissal, by granting plaintiffs leave to file a second amended complaint within ten days, if they so desired, was interlocutory in nature, but by its own terms it would become final at the end of ten days, unless plaintiffs in the meantime should file a second amended complaint. Nothing remained to be done to make the order final. In our opinion, this was an interlocutory order which practically disposed of the merits of the action. Only the plaintiffs, by filing a second amended complaint, could prevent the order from becoming final. When they filed their notice of appeal they elected not to further amend, but to stand on their amended complaint.

We have heretofore reached a like result in the application of Rule 5(2) in Roeske v. Lamb, 38 N.M. 309, 32 P.2d 257; Farmers Oil Co. v. State Tax Comm., 41 N.M. 693, 73 P.2d 816; Cox v. Shipe, 44 N.M. 378, 102 P.2d 1115.

Defendant next contends that the trial court was without jurisdiction to consider the first amended complaint, and this court is without jurisdiction to consider the appeal from the order of dismissal of June 4, because the order of March 22 dismissed the original complaint, with leave granted plaintiffs to file an amended complaint within ten days, and the amended complaint was not filed until the 11th day.

This order provided '* * * that the Complaint as amended is dismissed, with leave by the Plaintiffs to file an Amended Complaint within Ten days from the entry of this orer.'

Defendant's argument is that if the plaintiffs had the right to appeal from the interlocutory order of June 4, then they had the right to appeal from the interlocutory order of March 22, and their time for appeal commenced as of that date. In any event, when the ten days from March 22 had expired, then the time for appeal began to run, and the plaintiffs failed to take an appeal from this order.

The defendant must fail in this contention. It cites as its authorities the cases of Miller v. Doe, 70 N.M. 432, 374 P.2d 305, and Associates Discount Corp. v. DeVilliers, 74 N.M. 528, 395 P.2d 453.

A reference to Miller v. Doe shows that the question of the timeliness of appeal therein related to the time for an appeal from a final judgment, as provided in Supreme Court Rule 5(1), which appears as § 21-2-1(5)(1), N.M.S.A.1953. The time-liness of the appeal from a final judgment under Supreme Court Rule 5(1) was also involved in the case of Associates Discount Corp. v. DeVilliers, supra.

The order of March 22 was an interlocutory order from which an appeal could have been taken under Supreme Court Rule 5(2), but plaintiffs elected to amend their complaint rather than appeal from this order. This order, unlike the order of June 4, did not make provision for a final dismissal of the cause at the termination of the ten-day period, and no subsequent final order or judgment was ever entered effecting a dismissal of the cause pursuant to the order of dismissal of the complaint. As was argued by defendant under its first contention above, there is a distinction between a dismissal of a complaint with leave to amend, and a final order or judgment of dismissal of the cause. See Midwestern Dev., Inc. v. City of Tulsa, supra; Luke v. Ellis, supra; Golucke v. Greene, supra; Javor v. Brown, supra; Atwater v. North American Coal Corp., supra; Cory Bros. & Co. v. United States, supra.

The amended complaint was treated as having been properly and timely filed. No one at any time in the court below raised any question as to its timeliness. The trial court and the parties all proceeded accordingly. The defendant took no action to have an order or judgment of dismissal entered, and did not move to have the amended complaint stricken. The question of the timeliness of the filing of the amended complaint was first raised by defendant in this court in argument on its motion to dismiss the appeal from the June 4 order.

Defendant concedes that even if we were to consider this order of March 22 as a final order, the trial court could have relieved plaintiffs from the same under Rule 60(b), Rules of Civil Procedure, which appears as § 21-1-1(60)(b), N.M.S.A.1953, but it says no application by plaintiffs for such relief was made. The court by its conduct relieved plaintiffs from their obligation to file the amended complaint within ten days, and the defendant, by its conduct, concurred in the action of the court and thereby waived any right it may have had to object to the late filing.

This now brings us to the question of the correctness of the trial court's dismissal of the amended complaint. The motion recites that it seeks a dismissal of the amended complaint for failure to state a claim, but it also gives as additional grounds for the motion: (1) that if there has been a trespass by defendant, plaintiffs are limited to their remedy under § 22-9-11, N.M.S.A.1953, and (2) that plaintiffs have failed to join as parties to this action the person or persons who were the owners of the property * * * at the time the alleged trespass took place and that person or persons are indispensable parties to this suit.

The amended complaint is set forth in but one count, which consists of twenty- nine numbered paragraphs, the prayer, and five exhibits, totaling some fourteen pages in length. As we understand the complaint and plaintiffs' contentions, they are that plaintiffs are entitled to recover for (1) trespasses by defendant upon the plaintiffs' premises, (2) negligent failure of defendant to properly maintain an electric power line across plaintiffs' premises, and (3) slander of title to plaintiffs' premises. They seek both compensatory and punitive damages.

The trial court apparently was of the opinion that plaintiffs could not recover for the alleged trespasses upon the premises, and that their only remedy, if any, was limited to a recovery of just compensation for property taken or damaged for public use by an action in the nature of inverse condemnation. This is the position taken by defendant in its motion and in its answer brief. With this we agree, and we also agree that the amended complaint failed to state a claim upon...