Roeske v. Lamb
| Decision Date | 24 April 1934 |
| Docket Number | No. 3980.,3980. |
| Citation | 38 N.M. 309,32 P.2d 257 |
| Parties | ROESKEv.LAMB ET AL. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Santa Fé County; Otero, Judge.
Action by Otto Roeske, doing business under the firm name and style of U-Drive-It Car Company, against J. D. Lamb, as chairman and member of the State Corporation Commission, and others. From an order sustaining a demurrer to the complaint, plaintiff appeals. Motion to dismiss the appeal.
Motion denied.
Order sustaining demurrer to complaint because not stating cause of action is appealable as “interlocutory order practically disposing of merits”. N.M.App.Proc.Rule II, § 2.
David A. Grammer, of Albuquerque, for appellant.
E. K. Neumann, Atty. Gen., and Quincy D. Adams, Asst. Atty. Gen., for appellees.
This motion to dismiss the appeal presents the question whether an order sustaining a demurrer to a complaint as setting forth no cause of action is appealable.
Appellant contends that the order is appealable as “such (an) interlocutory * * * order * * * as practically dispose(s) of the merits of the action, so that any further proceeding therein, would be only to carry into effect such interlocutory * * * order * * *.” N. M. App. Proc. Rule II, § 2.
[1][2] It is not easy to answer this contention if we treat the taking of the appeal as an election not to plead further, as we believe we should. The complaint having been adjudged insufficient, and appellant electing to stand upon it, there could be but one further proceeding, viz., a final judgment of dismissal. That judgment would merely carry the order into effect. The merits of the action are practically disposed of by the order.
In Morrison v. Robinson, 25 N. M. 417, 184 P. 214, the court dismissed the appeal on the ground that the order sustaining the demurrer was not a final judgment. The court's attention was not called to the then new provision for appeals from interlocutory orders. The decision is deemed not controlling.
Cornett v. Fulfer, 26 N. M. 368, 189 P. 1108, is not in point. It is in a class with Winans v. Bryan, 33 N. M. 532, 271 P. 469.
The motion will be overruled. It is so ordered.
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Garver v. Public Service Co. of New Mexico
...amend, but to stand on their amended complaint. We have heretofore reached a like result in the application of Rule 5(2) in Roeske v. Lamb, 38 N.M. 309, 32 P.2d 257; Farmers Oil Co. v. State Tax Comm., 41 N.M. 693, 73 P.2d 816; Cox v. Shipe, 44 N.M. 378, 102 P.2d Defendant next contends tha......
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Cox v. Shipe
...twenty days from entry of the order sustaining the demurrer the intervener appealed therefrom; and, under the authority of Roeske v. Lamb, 38 N.M. 309, 32 P.2d 257, and Farmers Oil Co. v. State Tax Commission, 41 N.M. 693, 73 P.2d 816, the appeal will be entertained as one prosecuted under ......
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Cox v. Shipe
...twenty days from entry of the order sustaining the demurrer the intervener appealed therefrom; and, under the authority of Roeske v. Lamb, 38 N.M. 309, 32 P.2d 257, and Farmers Oil Co. v. State Tax Commission, 41 N.M. 693, 73 P.2d 816, the appeal will be entertained as one prosecuted under ......
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Farmers Oil Co. Inc. v. State Tax Comm'n, 4326.
...the order sustaining demurrer deemed appealable as an interlocutory one practically disposing of the merits of the action. Roeske v. Lamb, 38 N.M. 309, 32 P.2d 257. The claim to immunity, which is set forth in the formal protest against the tax and embodied also in the amended complaint as ......