Mora v. Martinez

• Decision Date: 17 March 1969
• Docket Number: No. 8633,8633
• Citation: Mora v. Martinez, 80 N.M. 88, 451 P.2d 992, 1969 NMSC 30 (N.M. 1969)
• Parties: Frank A. MORA and Lela V. Mora, his wife, Plaintiffs-Appellees, v. Mary Tapia Rael MARTINEZ, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 992

451 P.2d 992

80 N.M. 88

Frank A. MORA and Lela V. Mora, his wife, Plaintiffs-Appellees, v.Mary Tapia Rael MARTINEZ, Defendant-Appellant.

No. 8633.

Supreme Court of New Mexico.

March 17, 1969.

Farlow & Duffy, Albuquerque, for appellant.

Traub, Parham & Zuris, Albuquerque, for appellees.

OPINION

CARMODY, Justice.

The principal defendant below appeals from the entry of a decree quieting title in the plaintiffs.

The case has had a long life prior to its submission to us.It was originally filed in the district court in June of 1960.In October 1961, a pre-trial conference was held.In July 1962, a first amended complaint was filed, followed in due time by answers of the defendant-appellant and another party.The trial was held in January of 1963, although additional testimony was taken the following March.For reasons not disclosed by the record, a year elapsed before the defendant filed her requested findings of fact and conclusions of law.Some two months later, in May of 1964, the plaintiffs filed a lengthy substantially unnumbered instrument entitled 'Requested Findings of Fact and Conclusions of Law'; in essence, this particular instrument related the facts allegedly proven by the plaintiffs; it consists of some nine typewritten pages, six of which were more like a summarization following the trial rather than findings of fact and conclusions of law.In any event, following the filing of this instrument, nothing further was done for almost three years, viz., until February 7, 1967, at which time the trial court finally, and four years after the trial, entered what is termed a final decree, quieting the title in the plaintiffs.As though this were not enough, some ten months later the trial court entered an order allowing an extension for the filing of the transcript, and even this was done with the direction that the extension should be filed nunc pro tunc as of the 7th of July, 1967, the day when the time for filing of the transcript in this court would have expired.

In view of our disposition of the case, we will say nothing further with respect to the so-called nunc pro tunc order, except to call to the attention of the trial judge in this case that nunc pro tunc has reference to the making of an entry now, of something which was actually previously done, so as to have it effective as of the earlier date.It is not to be used to supply some omitted action of the court or counsel, but may be utilized to supply an omission in the record of something really done but omitted through mistake or inadvertence.State v. Hatley, 72 N.M. 377, 384 P.2d 252(1963).See, generally, Bouvier's Law Dictionary 2385 (3d rev., vol. III, 1914), and Black's Law Dictionary 1218 (DeLuxe4th ed. 1951).In the instant case, the action taken was obviously not in conformity with any recognized usage of the term 'nunc pro tunc.'

In any event, the final decree as entered by the trial court after the four-year delay since the trial in no sense complies with our rule requiring findings of fact and conclusions of law to be filed as a separate instrument.Rule 52(B)(a)(2), (3) and (7)(§ 21--1--1(52)(B)(a)(2), (3) and (7),N.M.S.A.1953).The decree makes no attempt to comply with the rules; in addition to other faults which we need not mention, it states:

'The Requested Findings of Fact and Conclusions of Law of plaintiffs are adopted as such findings and conclusions of this court.'

Our reason in detailing the above is to explain why we feel it necessary to take the action we do today.Although we find the earlier delay inexcusable, it is impossible for us, with fairness, to dispose of the appeal until the trial court performs its required duty of making proper findings of fact and conclusions of law.The whole gist of the appeal involves facts.The defendant made perhaps what was the only type of attack possible, and that was a general attak on the findings which were inconsistent with the defendant's position.In so doing, quite naturally she failed to comply with the rule adopted by us as to attack on findings, but it is quite understandable in view of the record why this method was taken.However, it is not for us to search the record in order to determine whether the long meandering findings which the court attempted to adopt by reference are supported by substantial evidence.

In connection with the almost total failure on the part of the trial court to comply with the provisions of Rule 52(B) above-mentioned, we take note of the fact that, although our Rule 52 differs from the federal rule, nevertheless the reasons for both rules are the same, i.e., as an aid to the appellate court by placing before it the basis of the decision of the trial court; to require care on the part of the trial judge in his consideration and adjudication of the facts; and...