Pearce v. Strickler

• Decision Date: 05 August 1897
• Citation: 49 P. 727,9 N.M. 46,1897 -NMSC- 010
• Parties: PEARCE v. STRICKLER.
• Court: New Mexico Supreme Court

49 P. 727

9 N.M. 46, 1897 -NMSC- 010

PEARCE v. STRICKLER.

Supreme Court of New Mexico

August 5, 1897

Error to district court, Bernalillo county; before Justice N. C Collier.

Action between F. L. Pearce and W. S. Strickler. There was judgment against Pearce, and he brings error. Strickler moves to dismiss writ of error. Denied.

H. L Warren, for plaintiff in error.

W. B Childers, for defendant in error.

BANTZ J.

The question now to be determined arises on a motion to dismiss the writ of error on the ground that it was not brought till more than one year after the final judgment was rendered in the court below. The judgment was entered February 6, 1896. The writ of error was sued out on March 10, 1897, and was lodged in the office of the clerk of the district court on March 20, 1897. The judgment had been entered on the same day the verdict was returned, under a rule of court which required that to be done when the party failed to give notice of intention to file motion for new trial. Rule 29, par. 1. The motion was, however, filed (February 8th) during the term, and within five days after verdict, as provided by rule. Rule 29, par. 2. On February 15, 1896, the motion was continued by an order as follows: "It is ordered by the court that the time for arguing and submitting" said motion" and the disposition of the same be, and the same hereby is, extended and continued for thirty days." This continuance carried the cause from a special into the regular March term. The motion was overruled March 27, 1896. The period of limitation runs from the day of final judgment to the time when the writ of error was lodged in the court below. Polleys v. Improvement Co., 113 U.S. 81, 5 S.Ct. 369. It therefore becomes necessary to determine when the judgment became final in the court below; and of course if this occurred when the judgment was entered (February 6, 1896), the writ of error was barred. At common law the judgment was not entered until the conclusion of the cause, and therefore not until the motion for a new trial had been determined. Under our practice the rule is otherwise, and the judgment may be immediately entered upon the verdict, and the motion for a new trial may be made and passed upon afterwards. When the motion is filed in proper time, the proceeding is in fieri until the motion is denied; and until then the judgment must be considered as in paper, or as suspended as a roll, in the common-law sense, by the motion. Spanagel v. Dellinger, 34 Cal. 482; State v. Kansas City Court of Appeals (Mo. Sup.) 16 S.W. 415; Higginbotham v. Campbell (Ga.) 11 S.E. 1027; Wheeler v. Barr (Ind. App.) 33 N.E. 975. The third paragraph of rule 29 provides that every such motion shall be argued or submitted and determined during the term at which the case is tried, unless the court, for good cause, expressly continue it. A failure by the court to pass on or continue such motion during the same term at which the case has been tried shall be considered as a denial of the same, and no continuance of such motion shall be for a longer period than 30 days after the expiration of the term. Such is the substance of the rule, and under it it will not be necessary to say in this case whether the pendency of a motion for a new trial will suspend a judgment beyond the term, where the...