King v. King

• Decision Date: 12 April 1933
• Docket Number: Nos. 3832, 3864.,s. 3832, 3864.
• Citation: 21 P.2d 80,37 N.M. 238
• Parties: KINGv.McELROY.McELROYv.KING.
• Court: New Mexico Supreme Court

37 N.M. 238

21 P.2d 80

KING

v.McELROY.McELROY

v.KING.

Nos. 3832, 3864.

Supreme Court of New Mexico.

April 12, 1933.

Appeal from and error to District Court, Grant County; Hay, Judge.

Action by John T. McElroy against Arthur King in which defendant filed a cross-complaint. Judgment was rendered for defendant on his cross-complaint, and against plaintiff on his complaint, and plaintiff brings error, and defendant moves to docket and affirm.

Motion to docket and affirm denied, and motion to discharge writ of error and dismiss petition therefor sustained.

Motion filed September 10, 1931, directed against judgment entered September 25, 1931, was, on October 26, 1931, through failure of court to rule thereon, in legal effect denied. Comp.St.1929, § 105-801.

Edward D. Tittmann, of Hillsboro, for appellant and plaintiff in error.

Joseph W. Hodges, of Silver City, for appellee and defendant in error.

BICKLEY, Justice.

The plaintiff in error, plaintiff below, sued defendant in error to quiet title to land.

On September 4, 1931, after trial, the district court announced its judgment for defendant on his cross-complaint and against plaintiff on his complaint. On September 5, 1931, attorney for defendant wrote to attorney for plaintiff inclosing a copy of the proposed judgment requesting that counsel examine same and advise him of any suggestions with reference thereto. Thereupon, counsel for plaintiff wrote to the trial judge advising him that the judgment was all right as to the form, “except that I would like to have the notice of appeal in open court and the granting thereof, cut out.” This letter referred to motion to set this judgment aside, such motion being filed on September 10, 1931. This motion challenged the correctness of the court's decision. The judgment entitled “Final Judgment” was signed by the judge as of the date of its rendition, the 4th day of September, 1931, but was not entered in the clerk's office until September 25, 1931. The final judgment contains the following recital:

“To which findings, conclusions and judgment of the Court, the plaintiff, John T. McElroy, then and there excepted, and prays an appeal to the Supreme Court of New Mexico, which said appeal is hereby granted.

“The amount of the supersedeas bond herein is hereby fixed at the sum of $500.00.”

On July 1, 1932, the defendant, Arthur King, filed in this court a “Motion to Docket and Affirm Judgment.”

On July 8, 1932, counsel for plaintiff, John T. McElroy, filed a brief and sworn statement setting forth some of the facts heretofore recited and claiming in effect that no appeal had in fact been taken, and that the judgment was irregular in that it recited the taking of an appeal.

This court not being disposed to become triers of fact as to whether an appeal had in fact been taken, as recited in the judgment, suggested to counsel that, if the judgment did not speak the truth, it would be appropriate to have the record corrected in the district court and declined to pass upon the motion to docket and affirm the judgment until informed in some satisfactory way what the facts were relative to such matter. On August 11, 1932, plaintiff filed in the district court a motion to set aside the judgment on the ground that said judgment was irregularly issued in that it recited an appeal taken in open court and allowance thereof praying that such recital be stricken out. On August 26, 1932, there was entered an order upon stipulation of the parties that said final judgment rendered on September 4, 1931, and entered on the 25th day of September, 1931, might be modified in the following particulars:

“By striking out the following words on the last page of said Judgment ‘and prays an appeal to the Supreme Court of the State of New Mexico, which appeal is hereby granted.’ And, ‘The amount of the supersedeas bond herein is hereby fixed in the sum of $500.00.’ The comma after the word ‘excepted’ being changed to a period.

“It is therefore, thereupon by the Court, considered, ordered, adjudged and decreed that the Final Judgment in the above entitled cause do be and the same is hereby modified in the manner hereinabove set out.”

Thereafter on September 17, 1932, there was entered an order overruling the motion of September 10, 1931, “To Set Aside Judgment for Defendant.” This was the motion directed to the correctness of the decision. This order recited that said motion was overruled: “On the grounds that Chapter 15, Laws of 1917, applied and that the motion was lost because it had not been acted upon within the time required by said statute, and also upon the merits in that the point raised by said motion, to the effect that the judgment under which the tax sale had taken place was not properly a judgment at all because the words ‘judgment in rem’ were written upon the tax roll in the office of the County Treasurer and not on the copy of the tax roll in the County Clerk's office, was not well taken.”

No appeal was taken and no writ of error was applied for to review the action of the court in making either of said orders. On October 31, 1932, petition for writ of error was filed which recited:

“That on the 17th day of September, 1932, an order was entered in said cause modifying the judgment previously entered therein, which said order became a final judgment in said cause. That on the said date there was entered an order overruling a motion previously made to set aside said judgment on the ground that it appeared from the record and evidence in the cause, that the title on which defendant claimed ownership was invalid. ***

“That the court below committed error in entering the said judgment as modified, and in proceedings prior thereto, and in overruling the motion of plaintiff, as above set out, all of which will appear more fully and completely from the transcript and record of this cause to be filed herein if this writ be granted.”

A portion of this statement in the petition is inaccurate as it appears from the record that the order modifying the judgment was entered on August 26, 1932, and the order overruling “motion previously made to set aside said judgment, on the ground that it appeared from the record and evidence in the cause that the title on which defendant claimed ownership was invalid,” while being submitted on the 26th day of August, 1932, was signed by the judge as of September 17, 1932, and entered on that day.

A writ of error was issued November 12, 1932. On December 14, 1932, defendant in error filed a motion to discharge the writ of error upon a number of grounds, those necessary to notice being thus stated in the brief in support thereof:

“(1) That it was incumbent upon the plaintiff in Error to procure a decision of the trial court on his Motion to set the judgment aside within thirty (30) days from the date the same was filed, which was September 10, 1931, and therefore the Lower Court should have passed upon this Motion on or before October 11, 1931; that the failure of the trial court to so rule upon said Motion within thirty (30) days from the date of the filing of the same by the Plaintiff in Error, in effect, automatically overruled the same under the provisions of Section 105-801 of the 1929 Code, pages 1328-1329;

“(7) That the amendment or modification of the Final Judgment of the District Court of Grant County, New Mexico, was nothing more than an amendment for the purpose of making said Final Judgment speak the truth and that it in no way effected said Final Judgment or disturbed the date thereof, nor did it effect the rights of the parties thereto. This is especially true when it is known that the plaintiff in Error himself was the cause of such amendment being made;

“(8) That the method pursued by the Plaintiff in Error was nothing in the world but an attempt to get the Final Judgment changed, so as to start the Statute of Limitations running anew and enable him to appeal or sue out a Writ of Error. ***

“(9) That the Plaintiff in Error did not take an appeal or sue out a Writ of Error within the time prescribed by law; that in no event would the plaintiff in Error be entitled to an appeal or to sue out a Writ of Error, on account of the ruling of the court embodied in its Order entered on August 26, 1932, and on September 17, 1932, for the reason that the Plaintiff in Error did not object nor except to said rulings, or either of them, and is precluded from appealing or suing out a Writ of Error as to said Order:

“(10) That the Final Judgment rendered by the District Court of Grant County, New Mexico, on September 4, 1931, and entered on the Civil Docket thereof on the 25th day of September, 1931, is a Final Judgment in all respects, and that the Supreme Court has no right to review or to disturb said Final Judgment in any particular whatsoever.”

[1] It seems to be the theory of plaintiff in error that by the order modifying the judgment made and entered on August 26, 1932, striking out the recital that an appeal had been prayed and allowed, made the judgment a final judgment as of that date instead of its being a final judgment as of September 25, 1931, the date of its entry. This is an erroneous theory. In 3 C. J. Appeal & Error, § 1047, it is said: “The general rule as to the running of the statute of limitations holds good when a judgment is amended or modified in particulars not changing its character.”

In the case at bar the modification of the judgment was by the procurement of the plaintiff in error and was decidedly favorable to him. Apparently it relieved him of the hazard of affirmance of the judgment upon the face of the record as it stood when the motion to docket and affirm was filed. It was not modified in any feature material to the merits of the decision of the trial court. When modified, it stood with respect to what had been decided, just as it did before. All the questions he might now present for the reversal of the judgment by this court were available to him prior...