Griego v. Roybal
| Decision Date | 13 May 1968 |
| Docket Number | No. 8437,8437 |
| Citation | 1968 NMSC 77,442 P.2d 585,79 N.M. 273 |
| Parties | Jose E. GRIEGO, Plaintiff-Appellee and Cross-Appellant, v. Eustacio ROYBAL, Soledad Roybal, his wife, and Eustacio Roybal, the Younger, sometimes known as Ermundo Roybal, Defendants-Appellants and Cross-Appellees. |
| Court | New Mexico Supreme Court |
Eustacio Roybal, Sr., and his wife, Soledad, and Eustacio Roybal, Jr., have appealed from a judgment quieting title to certain real estate in the plaintiff, Jose E. Griego.
Defendants Roybal answered denying the allegation of the complaint and, by counter-claim, asserted title to the land in themselves and sought affirmatively to quiet title in themselves. A year later, the Roybals sought permission to amend their answer and, in connection therewith, filed a stipulation by which counsel agreed 'that the amended answer of the defendants Roybal may be filed.' The amended answer omitted the counterclaim but alleged possession of the land by defendants. A jury demand was filed concurrently therewith; the demand was denied by the court.
The basic question on this appeal is whether the defendants were entitled to a jury trial as a matter of right. In a suit to deprive one of the possession of real estate, article II, § 12, of the New Mexico Constitution grants a right to a jury trial to the one in possession. See Archuleta v. Landers, 67 N.M. 422, 356 P.2d 443. This right, however, can be waived by the defendant in possession affirmatively seeking to quiet title in himself. Quinfana v. Vigil, 46 N.M. 200, 125 P.2d 711. Thus, we must first determine whether the Roybals' counterclaim was abandoned or dismissed, and, if so, had these defendants in possession, nevertheless, waived their right to a jury trial.
Plaintiff strenuously argues that because of his reply to the counterclaim, it could neither have been abandoned nor dismissed over his objection. To bring the whole matter of the pleadings and, thus, a determination of the question of defendants' right to a jury trial into proper perspective, we must view all of the applicable rules together.
The pertinent portions of Rule 41 (§ 21--1--1(41), N.M.S.A.1953) provide:
'(a) * * *
'(1) * * * Subject to the provisions of Rule 23(c) and of any statute, an action may be dismissed by the plaintiff without order of the court * * * (ii) by filing a stipulation of dismissal signed by all parties who have appeared generally in the action.
Thus, because there was no court order authorizing a dismissal of the counterclaim, it could only have been dismissed by plaintiff's consent. Did the stipulation amount to such consent? Rule 7(a) (§ 21--1--1(7)(a), N.M.S.A.1953) reads:
The pertinent portions of Rule 15 (§ 21--1--1(15), N.M.S.A.1953) provide:
'(a) * * * Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party * * *'
'(e) * * * In every complaint, answer, or reply, amendatory or supplemental, the party shall set forth in one (1) entire pleading all matters which, by the rules of pleading, may be set forth in such pleading, and which may be necessary to the proper determination of the action or defense.'
By its very language, Rule 7, supra, requires a counterclaim to be a part of the answer. See 2A Moore's Federal Practice (2d Ed.) §§ 7.02 and 7.03; 1A Barron & Holtzoff, Federal Practice and Procedure § 243. By equally unambiguous language, Rule 15 requires a party to set forth in one entire pleading all matters which are necessary to be determined; the failure to re-allege allegations of an original pleading constitutes an abandonment of those allegations not re-alleged. See Primus v. Clark, 58 N.M. 588, 273 P.2d 963. Since Rule 7(a) requires a counterclaim to be a part of an answer, it is apparent to us that Rule 15(e) requires a counterclaim, if there is one, to be a part of an amended answer. Plaintiff strongly argues, however, that because of Rule 41(a), supra, the defendants could not have abandoned the counterclaim over his objection. That is true. However, it appears from the language of the written stipulation that the proposed amended answer omitted the affirmative relief formerly pled and was submitted to counsel for plaintiff together with the stipulation. By agreeing that 'the amended answer of the defendants Roybal may be filed,' express consent was given to the particular language of the tendered answer. This was not a case where there was merely consent that the defendants might file an amended answer; it was consent to file this particular amended answer. In view of the mandatory provision of Rule 15(e) requiring such amended pleading to re-allege every matter to be considered, and of our decisions holding failure to do so constitutes an abandonment of the portion not re-alleged, the stipulation would appear to amount to a consent by plaintiff to an abandonment of...
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