Peoples v. Peoples
| Decision Date | 29 March 1963 |
| Docket Number | No. 7160,7160 |
| Citation | 72 N.M. 64,1963 NMSC 67,380 P.2d 513 |
| Parties | Mildred Lillybelle PEOPLES and Martha V. Hambaugh, Plaintiffs-Appellants, v. James M. PEOPLES et al., Defendants-Appellees. |
| Court | New Mexico Supreme Court |
Reese P. Fullerton, Scottsdale, Ariz., Glenn O. Young, Sapulpa, Okl., for appellants.
J. L. Leftow, Albuquerque, for James M. Peoples.
Irving E. Moore, Albuquerque, for David F. Cargo.
Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, for Stephen D. Hambaugh, John W. Myers, Alan Jacobson and Sandia Ranch Sanatorium, Inc.
Alexander F. Sceresse, William J. Bingham, Albuquerque, for Marguerite K. Armijo.
Joseph L. Smith, Albuquerque, for Eva C. Thomas.
Sutin & Jones, Albuquerque, for Richard C. Civerolo.
Stanley P. Zuris, Albuquerque, for Edward G. Parham.
On October 12, 1961, Mildred Lillybelle Peoples filed a complaint in district court naming as defendants thirteen individuals and one corporation. In her brief on this appeal she states that the complaint was 'for personal injury and denial of civil rights resulting from unlawful arrest, unauthorized confinement, and mal-treatment in the city jail, in Bernalillo County-Indian Hospital, and in the Sandia Ranch Sanatorium in Albuquerque.'
Her complaint is in three causes of action, containing forty-one numbered paragraphs in the first cause of action, and one paragraph in each the second and third. Seventy-three pages of the transcript are required to set forth the complaint and attached exhibits.
On the same date, Martha V. Hambaugh filed a similar complaint for generally the same relief. Her complaint names as defendants all of those named in the Peoples complaint with two exceptions, and names one defendant not named in the Peoples complaint. The complaint contains thirty-four numbered paragraphs in the first cause of action, and a one-paragraph second cause of action. It does not contain a third cause of action. It covers twenty-six pages of the transcript and has twenty pages of exhibits attached.
On December 11, 1961, counsel for Stephen D. Hambaugh, a defendant in both cases, filed substantially identical motions in each case. The motions complained that the first count of each complaint failed to comply with Rules 8(a) and (e) of the Rules of Civil Procedure and should be made to conform therewith; that it contained redundant, immaterial, impertinent and scandalous matter which should be stricken under Rule 12(f); that several claims were founded in separate transactions and occurrences, and presented different questions of law and fact and different claimed liabilities so that pursuant to Rule 10(b) they should be stated in separate counts; that because the allegations of liability were vague and ambiguous, a more definite statement as to acts of movant out of which liability arose should be required; that because counsel had failed as required by Rule 11 to sign the complaints that the verification should be stricken and counsel required to comply with the rule; and that the complaint should be dismissed for failure to state a cause of action.
A hearing was had on these motions on December 18, 1961, in the two cases as if consolidated, and on December 19, 1961, an order was entered sustaining all the motions and striking and dismissing the complaints 'with prejudice and without leave to amend as to all defendants,' whether or not they had appeared in the action. On the next day, December 20, 1961, counsel for plaintiffs filed their 'Motion to vacate order and judgment and for new trial' in the two cases, specifying thirteen grounds for relief. After hearing, this motion was overruled, and this appeal forthwith taken in the two cases consolidated.
In order to fully understand what transpired, it is necessary that certain additional facts be related. On December 8, 1961, three days before the Stephen D. Hambaugh motion was filed, a copy of the motion and a notice of hearing on December 18, 1961 before John B. McManus, District Judge, was mailed to counsel for the plaintiffs at their respective addresses in Santa Fe, New Mexico, and Scottsdale, Arizona, as to one, and Sapulpa, Oklahoma, for the other.
At this time nothing had been filed in the case by any defendants except appearances by four attorneys on behalf of four individual defendants.
On December 15, 1961, Judge McManus was disqualified by affidavit filed in each case by plaintiffs. On the same date counsel for Stephen D. Hambaugh arranged with Robert W. Reidy, District Judge, to whom the case was automatically assigned pursuant to Second Judicial District Court Rule 33 (now Rule 36) upon disqualification of Judge McManus, for a hearing at the time previously set. Counsel also took steps to notify plaintiffs' attorneys that the hearing would be held before Judge Reidy at the time previously noticed.
On the morning of December 18, 1961, affidavits of disqualification of Judge Reidy and all other resident judges were filed by plaintiffs' attorneys.
However, Judge Reidy proceeded to hold the hearing in the two cases as if consolidated. At the conclusion, he made several findings concerning the notice given concluding that it had been sufficient and proper and that he had jurisdiction to hear the matter. He then proceeded to enter the order of dismissal already noted.
In the meantimes, between December 11 and December 18, three motions generally similar to that filed on behalf of Stephen D. Hambaugh were filed by counsel for three other defendants; a motion to strike certain parts of the complaint was filed by counsel for one defendant. Two additional notices of hearing before Judge McManus on December 18, on behalf of two defendants, were mailed on December 11 and December 13. At the hearing on December 18, it appears that nine defendants were present by counsel. However, the only formal appearances in the case to that date were as noted.
It is clear from findings made in the order of December 19, following the December 18 hearing, and the proceedings at a hearing on plaintiffs' motion to vacate the order which was held on January 17, 1962, that the question of the sufficiency of the disqualification of Judge Reidy, and of the adequacy of the notice of the December 18 hearing were the principal matters considered. The fact of the present of one of plaintiffs' attorneys in the court house on the morning of December 18, and his having absented himself from the hearing, was also noted.
It is apparent to us that plaintiffs' counsel proceeded as they did because of mistaken ideas; first, that upon filing a disqualification of one of the resident judges nothing could occur in the case until a new judge was stipulated into the case by counsel or, upon failure to stipulate, until a judge was named by the Chief Justice; and second, that the resident judges could be disqualified by successive affidavits. That they were in error is clear from our decision in Rocky Mountain Life Insurance Company v. Reidy, 69 N.M. 36, 363 P.2d 1031.
It appears from plaintiffs' argument that, being unaware of the decision above, but knowing of our decisions in State ex rel. Lebeck v. Chavez, 45 N.M. 161, 113 P.2d 179 and State ex rel. Weltmer v. Taylor, 42 N.M. 405, 79 P.2d 937 which held submitting an issue to a judge for decision waives the right to disqualify him, the plaintiffs thought they were on the horns of a dilemma. They had to decide whether they should appear at a hearing before a judge they considered disqualified, and chance waiver of the disqualification by their appearance, or stay away from the hearing and risk that the judge would disregard the affidavit and proceed. While it is true that they intentionally absented themselves from the hearing, the facts recited may serve to explain their conduct, if not to excuse it. We have taken the trouble to recite these facts in detail because it is clear to us that the trial judge was impressed that counsel were not conducting themselves properly, or showing the court the deference due it from members of the bar. That he could very well have come to this conclusion at the December 18 hearing we can readily understand.
Be all this as it may, is the order one that can stand so as to deny plaintiffs their day in court on the merits of their claim? That the complaint was subject to all the infirmities, defects and shortcomings pointed out in the Hambaugh motion and discussed in detail, infra, is clear beyond dispute. Also, that the suit is one containing elements of malicious prosecution, false arrest, and other equally distasteful and disagreeable aspects, which actions are generally not favored in the law, is equally clear. See Hughes v. Van Bruggen, 44 N.M. 534, 105 P.2d 494; Johnson v. Walker-Smith Co., 47 N.E. 310, 142 P.2d 546. We are not unmindful of the seriousness of the charges made, the damage to reputations that may result if the allegations of wrongdoing cannot be sustained, and of the trouble, expense and worry that are unavoidable incidents to a suit of this character. Even so, should the complaints have been dismissed without a right afforded plaintiffs to try to make them sufficient and in conformity with the rules?
The rights of plaintiffs are equally entitled to the protection of the courts as are those of the defendants. If in fact plaintiffs have been wronged, as it is attempted to allege, it should be possible within our rules to frame a complaint so as to assert the right to damages against the wrongdoers. 1A Barron & Holtzoff, Federal Practice and Procedure 709, Sec. 442.
Plaintiffs make no convincing argument that the motions pointing out the various defects in their complaints did not have merit. A most casual examination of the complaints filed by the two plaintiffs discloses that they are indeed clearly violative of Rule 8(a) (Sec. 21-1-1(8)(a), N.M.S.A.1953) in that they do not contain 'a short and plain statement of the claim showing that the pleader is entitled to relief,' and of ...
To continue reading
Request your trial
-
Malone v. Swift Fresh Meats Co.
...Farm Mutual Automobile Ins. Co., 81 N.M. 600, 471 P.2d 170 (1970); See Platco, supra; Martinez, supra. Cases such as Peoples v. Peoples, 72 N.M. 64, 380 P.2d 513 (1963), upon which defendants rely, are inapposite. Peoples held that once a judgment or a final order has been entered dismissin......
-
Holman v. Oriental Refinery
...that to hold otherwise would be a departure from the liberal spirit of our rules applicable generally in civil cases (Peoples v. Peoples, 72 N.M. 64, 380 P.2d 513) and would result in the application of a strict rule in connection with this highly favored and salutary type of proceeding. Th......
-
Meeker, In re
...than the case tried and reviewed on appeal and that this was done under very strange and disturbing circumstances; that in Peoples v. Peoples, 72 N.M. 64, 380 P.2d 513; second appeal, Hambaugh v. Peoples, 75 N.M. 144, 401 P.2d 777, 'The ladies were then summarily thrown out of court by the ......
-
DiMatteo v. County of Dona Ana, By and Through Bd. of County Com'rs
...matters improperly pleaded, or which have no bearing on the lawsuit, should be stricken by a motion to strike. See Peoples v. Peoples, 72 N.M. 64, 380 P.2d 513 (1963); see generally R. 1-012(F) (the district court may strike from the pleading). Since plaintiff's claim was dismissed in its e......