Murphy v. Citizens Bank of Clovis

• Decision Date: 23 April 1957
• Docket Number: No. 5494.,5494.
• Parties: A. L. MURPHY, Appellant, v. CITIZENS BANK OF CLOVIS, A. W. Skarda and Lionel G. Skarda, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

244 F.2d 511 (1957)

A. L. MURPHY, Appellant, v. CITIZENS BANK OF CLOVIS, A. W. Skarda and Lionel G. Skarda, Appellees.

No. 5494.

United States Court of Appeals Tenth Circuit.

April 23, 1957.

T. B. Keleher, Albuquerque, N. M., for appellant.

Everett M. Grantham, Albuquerque, N. M. (Lewis R. Sutin and Grantham, Spann & Sanchez, Albuquerque, N. M., on the brief), for appellees.

Before HUXMAN, PICKETT and LEWIS, Circuit Judges.

LEWIS, Circuit Judge.

The plaintiff-appellant is aggrieved by a judgment summarily dismissing his complaint with prejudice upon each of two grounds: (a) failure to state a claim upon which relief can be granted and (b) the bar of the New Mexico four year statute of limitations. Sec. 23-1-4, N.M. Statutes, 1953 Ann. Appellant has neither designated nor argued in his brief any error arising from the trial court's holding that the complaint fails to state a claim. Failure to comply in this regard with Rule 19 of this Court, 28 U.S.C.A., will warrant an affirmance of the judgment without further consideration. Lohman v. Stockyards Loan Co., 8 Cir., 243 F. 517. The Court of Appeals has no duty to search the record for error upon a ground neither briefed nor argued. Watts v. U. S., 10 Cir., 220 F.2d 483.

However, since the order of dismissal was with prejudice, we are inclined to consider appellant's contention relative to the trial court's dismissal of the cause as barred by limitation.

On January 24, 1955, appellant filed with the Clerk of the District Court for the District of New Mexico a complaint naming, among others, present appellees as defendants and asserting an alleged claim which, if valid, arose January 30, 1951. Jurisdiction of the court was invoked by diversity and claim for the requisite amount. The complaint, which was filed by appellant in proper person¹ and by mail, was accompanied by an inquiry from appellant as to how long he could defer the service of process without jeopardizing the case because he "would like to wait until near the first of April. Am filing now because the statute runs on part of the cause in the very near future." In a letter of reply on January 24 the Clerk called appellant's attention to Rule 4, Fed.Rules Civ.Proc. 28 U.S.C.A., and in addition stated "It will, therefore, be necessary for you to immediately forward to George W. Beach, U. S. Marshal, Albuquerque, six additional copies in order that he may proceed with the service."

No further developments occurred until over a year later when on February 3, 1956, the Clerk informed appellant that under local Rule 13 of the District Court the matter was, in the discretion of the Court, subject to dismissal for want of prosecution. On March 3, 1956, appellant sent process to the marshal with a request to perfect service.

The question thus presented is whether or not the filing of the complaint one week before the asserted cause of action would be barred by the New Mexico statute served to toll that statute although service of process was not procured for over thirteen months. Under the ruling of Ragan v. Merchants Transfer & Warehouse Company, 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520, the law of New Mexico is determinative.

Rule 3 of the...