Public Service Co. of N. M. v. First Judicial Dist. Court In and For Santa Fe County, Division 1, 6415

• Citation: 334 P.2d 713,65 N.M. 185,1959 NMSC 2
• Decision Date: 09 January 1959
• Docket Number: No. 6415,6415
• Parties: PUBLIC SERVICE COMPANY of NEW MEXICO, a New Mexico Corporation, Petitioner, v. The FIRST JUDICIAL DISTRICT COURT IN AND FOR the COUNTY OF SANTA FE, DIVISION I, Garnett R. Burks, District Judge, Acting by Designation in the Absence of David W. Carmody, Judge, Respondent.
• Court: Supreme Court of New Mexico

Page 713

334 P.2d 713

65 N.M. 185

PUBLIC SERVICE COMPANY of NEW MEXICO, a New Mexico Corporation, Petitioner, v. The FIRST JUDICIAL DISTRICT COURT IN AND FOR the COUNTY OF SANTA FE, DIVISION I, Garnett R. Burks, District Judge, Acting by Designation in the Absence of David W. Carmody Judge, Respondent.

No. 6415.

Supreme Court of New Mexico.

Jan. 9, 1959.

C. R. McIntosh, Santa Fe, Keleher & McLeod, Albuquerque, for petitioner.

Bigbee & Stephenson, Harl D. Byrd, Santa Fe, for respondent.

PER CURIAM.

Upon a consideration of the motion for a rehearing the opinion heretofore filed is withdrawn and the following is substituted:

McGHEE, Justice.

Plaintiff, G. & G. Gardens, Inc., filed a complaint in two counts against the Public Service Company of New Mexico, defendant and petitioner herein, in the District Court of Santa Fe County. A final judgment in favor of the plaintiff was entered on both counts, the first being a money judgment based on a jury verdict and the second being an injunction decree.

The case is here on an alternative writ of mandamus arising out of the action of the district judge in vacating defendant's appeal from the final judgment and from orders denying motions for a new trial as to the jury verdict and for a modification of the injunction decree. The pertinent facts in chronological order are as follows:

                January 15, 1958   --  Final judgment entered by district court
                January 24,1958    --  Motion for new trial as to the jury verdict and
                                       motion to amend the injunction decree filed, the
                                       ninth day subsequent to the entry of final judgment
                                       and within the ten day limit after entry of
                                       judgment as required by Sec. 21-1-1 (59(b), 59(e) N
                                       M.S.A. 1953
                January 30,1958    --  Trial judge advised petitioner that its motions
                                       would be denied, the fifteenth day subsequent to
                                       the entry of final judgment
                February 18, 1958  --  Orders overruling the motions for new trial and to
                                       amend the decree entered, the thirty-fourth day
                                       subsequent to the entry of final judgment and the
                                       twenty-fifth day subsequent to the filing of the
                                       motions.
                March 17, 1958     --  Motion for appeal from both the final judgment
                                       and the orders denying the motions filed, the sixty-
                                       first day subsequent to the entry of final judgment
                                       and the twenty-seventh day subsequent to the entry
                                       of order denying the motions.
                March 18, 1958     --  Order allowing the appeal with supersedeas entered
                                       by District Judge J. V. Gallegos, sitting by
                                       designation in the absence of District Judge David
                                       W. Carmody, who tried the case, the sixty-second
                                       day subsequent to the entry of final judgment and
                                       the twenty-eighth day subsequent to the entry of
                                       orders denying the motions.
                March 20, 1958     --  Motion to dismiss the appeal on the ground that
                                       it was untimely, and in the alternative to dismiss
                                       the appeal as to the final judgment, leaving only
                                       the motions for appeal.
                March 25, 1958     --  Motion to dismiss the appeal sustained by District
                                       Judge Garnett R. Burks, sitting by designation in
                                       the absence of District Judge David W. Carmody,
                                       on the ground that the filing of the motions for
                                       new trial and to amend the decree did not affect
                                       the finality of the judgment nor toll the running
                                       of the period within which an appeal could be
                                       granted and therefore the order granting the appeal
                                       was not filed within the thirty days after entry
                                       of final judgment.
                                   --  Order also dismissed the appeal from the orders
                                       overruling the motions.
                

Petitioner now seeks the issuance of a peremptory writ of mandamus directing the district court to vacate the order of Judge Burks setting aside the order of Judge Gallegos granting an appeal and to reinstate that order allowing an appeal to this Court from both the final judgment and the orders overruling the motions for a new trial and to amend the injunction decree.

Petitioner first contends that the timely filing of a motion for new trial suspends the finality of the judgment so that the time for taking an appeal from the judgment does not begin to run until the motion has been decided, and thus, the appeal here, taken within thirty days after the decision on the motions, was timely.

This contention is without merit. We held in a recent opinion, for reasons there announced, that a successful movant against a judgment entered on a jury verdict was entitled to have the time for taking an appeal tolled, pending a decision on the motion. Scofield v. J. W. Jones Construction Co., 1958, 64 N.M. 319, 328 P.2d 389, 392. In King v. McElroy, 1933, 37 N.M. 238, 21 P.2d 80, a non-jury case, we stated that an unsuccessful movant against a judgment should not be given the benefit of the time which would elapse between the filing of his motion and a ruling thereon in computing the time he had in which to take an appeal. Here, the petitioner was unsuccessful in its attack on the judgment and thus, the appeal from the final judgment, taken on the sixty-first day subsequent to its entry, was not timely under our procedure. For an opinion considering this same issue under a six-month appeal period provision and reaching an opposite result see Trowell v. Diamond Supply Co., 1952, 8 Terry 442, 47 Del. 422, 91 A.2d 797.

The sole issue thus presented is whether one may appeal from an order denying timely motions for a new trial and to amend a final injunction decree though the appeal from the final judgment is not timely. Petitioner contends such orders come within the provisions of Supreme Court Rule 5(2), Sec. 21-2-1(5)(2) N.M.S.A., 1953, as amended, the material portion of which reads as follows:

'2. * * * Appeals shall also be allowed by the district court, and entertained by the Supreme Court, from all final orders affecting a substantial right made after the entry of final judgment.

* * *

* * *

'Application for allowance of appeal under the provisions of this section must be made within thirty days from the entry of the judgment, order, decision, or conviction appealed from.'

If so, the appeal was timely since the motion for appeal from the orders was filed on the twenty-seventh day following the denial of the motions.

We first consider the appealability of the denial of a motion for a new trial.

Although petitioner has referred us to several New Mexico cases construing the statute none of them deal with an appeal from an order denying a motion for new trial. The cases of Jordan v. Jordan, 1923, 29 N.M. 95, 218 P. 1035; Singleton v. Sanabrea, 1930, 35 N.M. 205, 292 P. 6; Kerr v. Southwest Flourite Co., 1930, 35 N.M. 232, 294 P. 324, and Hoover v. City of Albuquerque, 1952, 56 N.M. 525, 245 P.2d 1038, all involved appeals from orders vacating or setting aside the final judgment, and in this sense the final judgment had been modified by subsequent action of the district court.

King v. McElroy, supra, also is not in point on this question. Although Justice Bickley, 37 N.M. at page 242, 21 P.2d at page 82, apparently regarded the trial court's ruling in denying a motion to set aside a judgment as within Supreme Court Rule 5(2), no appeal was taken from the order.

In Gutierrez v. Brady, 1941, 45 N.M. 209, 113 P.2d 585, the court was concerned with a writ of error from an order denying a motion to vacate a judgment in favor of defendant upon grounds of newly discovered evidence. In dismissing the writ of error on motion, the real question decided by the court was that the petition for writ of error was not timely brought even though the order be considered one affecting a substantial right within the meaning of the statute, a matter not decided by the court. It is, however, settled that a motion for a new trial on grounds of newly discovered evidence presents a somewhat different question than a motion for a new trial based on alleged erroneous instructions and rulings on matters presented to the trial court in the first instance. See, Barrett v. Smith, 1931, 183 Minn. 431, 237 N.W. 15, 18, citing Worrlein v. Maier, 1929, 177 Minn. 474, 225 N.W. 399; Peterman v. Indian Motorcycle Co., 1 Cir., 1954, 216 F.2d 289, 291; Macartney v. Shipherd, 1911, 60 Or. 133, 117 P. 814, 816, Ann.Cas.1913D, 1257; Cf. Kirtland Heights, Inc. v. Board of County Commissioners, 1958, 64 N.M. 179, 326 P.2d 672; Rules of Civil Procedure 59(a) and 60(b). This, however, is a question we do not decide except for purposes of distinguishing the Gutierrez case.

Here, decision on the motion required nothing more than a reconsideration of the merits presented to the district judge before entry of final judgment as appears from the trial court finding of fact number 22 which is not attacked. The motion for new trial was directed to the money judgment and in substance rested on the contention that the jury verdict was excessive due to an alleged erroneous application by the jury of an instruction relating to the computation of damages, an alleged disregard of certain evidence by it, and the action of the court in failing to adjust the jury's award for the value of the water right adjudged by the court to be retained by the respondent. Further, petitioner contended that the court erred in overruling its various motions during the trial and in striking certain of its defenses at the...