Miller v. Montano
| Decision Date | 18 February 1944 |
| Docket Number | No. 4822.,4822. |
| Citation | 146 P.2d 172,48 N.M. 78 |
| Parties | MILLERv.MONTANO et al. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, San Miguel County; Albert R. Kool, Judge.
Action by C. E. Miller against Pascual B. Montano and another. From an order overruling defendant's motion to dismiss or strike amended complaint, defendants appeal. On plaintiff's motion to dismiss appeal.
Motion granted.
Order overruling defendants' motion to strike amended complaint because setting forth a different cause of action from that relied upon in original complaint was not a “final order” nor such interlocutory order as practically to dispose of merits of action, so as to be appealable. 1941 Comp. § 19-201, rule 5, subd. 2.
H. B. Hamilton, of Las Vegas, for appellants.
Noble & Spiess and A. T. Rogers, Jr., all of Las Vegas, for appellee.
This matter comes up upon motion of appellee Miller to dismiss an appeal taken from an order of the district court denying appellants' motion to strike the amended complaint.
The original complaint was filed in the district court of San Miguel County on March 12, 1942, by appellee; thereafter, and on July 27, 1943, upon leave, an amended complaint was filed. Appellants, Pascual Montano and Antonia S. de Montano, being two of the defendants in the suit below, moved to dismiss, or strike, the amended complaint on the ground that such amended complaint set forth a different cause of action from that relied upon in the original complaint; the point being that if it should be determined that the amended complaint set up a new cause of action distinct from the complaint first filed the ten year statute of limitation would be available to appellants as one defense, at least. The court overruled such motion to dismiss, or strike, and an appeal was taken from such order. Appellee then filed in this court a motion to dismiss the appeal as being one unauthorized by statute or rule of court because the order appealed from was an interlocutory one not practically disposing of the merits of the action.
[1] Clearly this is not a final order or judgment; and, unless it be such an interlocutory order “as practically disposes of the merits of the action so that any further proceedings therein would be only to carry into effect” such interlocutory order, 1941 Comp. sec. 19-201 (5-2), the appeal is not timely and should be dismissed.
The rule noticed and applied in the case of Burns v. Fleming et al., 48 N.M. -, 145 P.2d 861,...
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Duran v. Transit Remanufacturing Corp.
...63 N.M. 285, 317 P.2d 901; Marr v. Nagel, 58 N.M. 479, 272 P.2d 681; Foster v. Addington, 48 N.M. 212, 148 P.2d 373; Miller v. Montano, 48 N.M. 78, 146 P.2d 172; Burns v. Fleming, 48 N.M. 40, 145 P.2d 861; Wanser v. Fuqua, 46 N.M. 217, 126 P.2d 20; Winans v. Bryan, 33 N.M. 532, 271 P. 469. ......
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Floyd v. Towndrow, 4860.
...similar question was recently before this court in the case of Burns v. Fleming et al., 48 N.M. 40, 145 P.2d 861, and Miller v. Montano et al., 48 N. M. 78, 146 P.2d 172. In both of these cases we held against the contention of appellants. In Burns v. Fleming et al., supra, we announced the......
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Lopez v. Hoffman
...merits of the action and accordingly appealable under Supreme Court Rule 5(2) (§ 21--2--1(5)(2), N.M.S.A.1953). Compare Miller v. Montano, 48 N.M. 78, 146 P.2d 172. We last considered a problem similar to the one presented here in Klinchok v. Western Surety Company of America, 71 N.M. 5, 37......
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Floyd v. Towndrow
...question was recently before this court in the case of Burns v. Fleming et al., 48 N.M. 40, 145 P.2d 861, and Miller v. Montano et al., 48 N.M. 78, 146 P.2d 172. In both of these cases we held against the contention of appellants. In Burns v. Fleming et al., supra, we announced the rule, wh......