Gutierrez v. Brady., 4593.

• Decision Date: 17 May 1941
• Docket Number: No. 4593.,4593.
• Citation: 113 P.2d 585,45 N.M. 209
• Parties: GUTIERREZv.BRADY.
• Court: New Mexico Supreme Court

45 N.M. 209

113 P.2d 585

GUTIERREZ

v.BRADY.

No. 4593.

Supreme Court of New Mexico.

May 17, 1941.

Error to District Court, Lincoln County; Numa C. Frenger, Judge.

Action by Juanita Sanchez De Gutierrez against Primitivo S. Brady, wherein there was a judgment entered in favor of defendant. From an order denying plaintiff's motion to vacate the judgment on the ground of newly discovered evidence, the plaintiff brings error. On motion of defendant in error to dismiss the writ of error.

Motion sustained and writ dismissed.

Writ of error from an order denying motion to vacate judgment on ground of newly discovered evidence would be dismissed where not taken within 20 days from entry of such order. Laws 1917, c. 43, § 2; Comp.St.1929, § 105-2502.

H. B. Hamilton, of Santa Rosa, for plaintiff in error.

J. C. Gilbert, of Hot Springs, and H. A. Kiker, of Santa Fe, for defendant in error.

BICKLEY, Justice.

Defendant in error moves to dismiss the writ of error in this case applied for October 3, 1940. It appears that plaintiff in error filed a motion in the court below to vacate a judgment in favor of defendant in error, on the ground of newly discovered evidence. For further details as to said motion, see State v. Frenger, District Judge, 44 N.M. 386, 103 P.2d 115. Upon a hearing of the last mentioned motion, it was denied on July 11, 1940.

It is claimed by defendant in error that the petition for writ of error should have been filed here within twenty days under Sec. 2 of Rule V, Supreme Court Rules, which provides that appeals shall be allowed “from all final orders affecting a substantial right made after the entry of final judgment”, if applied for within twenty days from the entry of the judgment or order appealed from. There can be no doubt that the final order in this case denying the motion to vacate the final judgment comes within this provision, if it is not a “final judgment” within the provisions of Sec. 1 of the same rule-which provides that within three months from the entry of any final judgment, any party aggrieved may appeal therefrom.

Upon similar proceedings, the Supreme Court of Washington, in Kath v. Histogenetic Medicine Co., 50 Wash. 454, 97 P. 464, said that it was clear that the provisions for a short appeal “from any final order made after judgment which affects a substantial right,” governed, and an order denying motion to vacate a judgment for fraud alleged to have been practiced in obtaining the final judgment was an interlocutory order as distinguished from final judgments or orders “which determine the action”.

In Jordan v. Jordan, 29 N.M. 95, 218 P. 1035, 1036, an order was made and entered vacating a final decree in part, and it was held that an order vacating a final judgment is governed by Sec. 2 of Chap. 43, Laws of 1917 (Sec. 2, Rule V, Supreme Court Rules). The court said: “By section 1 of the act, appeals from final judgments are authorized. That this appeal does not fall within that section is at once apparent, because the order appealed from is in no sense a final judgment. It is an order vacating a final judgment, but does not in any sense adjudicate any of the rights of the parties to the property involved. The only other appeals authorized by the act are those specified in section 2 thereof. They are from all final orders affecting a substantial right, made after the entry of a final judgment ***.

“Indeed, appellant must come within this section of the statute in order to have any standing here at all, as the right to appeal from the action of an inferior court must be derived from express constitutional or statutory authority. It must be expressly granted by one or the other. In their absence, no such right exists. *** So that the appellant must derive his right to appeal from the order in question by the provisions of section 2 of the statute.” (Emphasis supplied).

In the Jordan case we cited our former decision in Alamogordo Improvement Co. v. Palmer, 28 N.M. 590, 216 P. 686, 689, in support.

From an examination of the record in that case, it appears that the attorneys for appellants, resisting the motion to dismiss the appeal, urged that the motion for opening and correcting the final decree was, in effect, a Bill of Review; that it was “in the nature of an independent proceeding although filed in the original cause, and when issue is joined thereon the final determination of that issue is a final decree as to the parties thereto whether such determination is called an order, a judgment or a decree,” and further contended that it was not in any sense an interlocutory order. Counsel for appellants, in their brief, said one of the questions presented was: “Third, was the judgment upon the bill of review a final decree from which an appeal could be perfected within ninety days, or merely an order made after final judgment from which it was necessary to perfect the appeal within sixty days?” We answered this question as follows: “An application to amend the decree upon the ground that the court below, although it had intended to award relief, had in fact failed to do so through inadvertence and mistake, is an application for a ‘final order affecting a substantial right made after final judgment,’ as contemplated by section 2, c. 43, Laws 1917, and the judgment upon such an application is not a final judgment denying relief upon the merits. The return day of the appear from such judgment is sixty days after the appeal was allowed.” In the opinion we said: “It is clear, therefore, that the question before the court, and which was decided, was whether a mistake had been made in omitting this man from the decree, not whether he was entitled to the award of the water right on the pleadings and evidence in the case. It would seem to follow, necessarily, that this judgment is a ‘final order affecting a substantial right made after the entry of final judgment,’ as contemplated by section 2, chapter 43, Laws 1917, and is not a final judgment denying relief upon the merits. The return day of the appeal, therefore, was 60 days after it was allowed, and our action in affirming the judgment was correct.”

Without citing the Alamogordo Improvement Co. case, the plaintiff in error urges upon us the view urged by appellants in that case, and which was there rejected. She also relies upon the circumstance that we said parenthetically in State v. Frenger, supra, in a question propounded, that the motion to set aside the decree of the district court was “(in effect a bill of review based upon newly discovered evidence)”.

This is a slender reed to lean upon. Because we said it was appropriate to apply the principles governing decisions on bills of review, it does not follow that a motion to set aside and vacate a judgment was an independent action by way of bill of review.

We also suggest, but do not decide, that the decision of a district court in refusing leave to file a bill of review, even in an independent action, or dismissing the same without a rehearing of the original cause, may be nothing more than a final order affecting a substantial right made after the entry of final judgment.

[1] We think the enactment by the legislature of Sec. 2 of Chap. 43, Laws of 1917, relative to appellate procedure (105-2502, N.M.S.A., 1929 Comp., Sec. 2, Rule V, Supreme Court Rules), broadens the occasions when appeals may be allowed from the decisions of district courts so that decisions lacking some of the characteristics of a “final judgment” may nevertheless be appealable if they come within the classification “final orders affecting a substantial right made after the entry of final judgment.”

The texts and decisions discussing bills of review point out that the ...