Romero v. Mcintosh.

• Decision Date: 17 December 1914
• Docket Number: No. 1656.,1656.
• Parties: ROMEROv.MCINTOSH.
• Court: New Mexico Supreme Court

19 N.M. 612

145 P. 254

ROMERO

v.MCINTOSH.

No. 1656.

Supreme Court of New Mexico.

Dec. 17, 1914.

Syllabus by the Court.

Under section 1, c. 57, Laws of 1907, providing that any person aggrieved by any final judgment or decision of any district court in any civil cause may, at his election, take an appeal or sue out a writ of error within one year from the date of the entry of the same, and where a motion for a new trial or rehearing is seasonably made, the time within which the appeal may be taken or the writ of error sued out is to be computed from the date of the denial of the motion, and not from the date of the rendition or entry of the judgment or decree, where the motion was authorized by statutory provision and operated as a stay of execution, because until such motion was disposed of the judgment was not “final judgment” within the meaning of the statute.

In an action for trespass by cutting and removing timber from lands of the plaintiff, the proof that some of it was cut by defendant was insufficient to charge him with responsibility for all the timber missing from plaintiff's land during an indefinite period of two or three years.

Error to District Court, Bernalillo County; H. F. Raynolds, Judge.

Action by William McIntosh against Eugenio Romero. Judgment for plaintiff, and defendant brings error. Reversed, and new trial granted.

In this cause defendant in error, William McIntosh, commenced an action against the plaintiff in error, Eugenio Romero, on account of alleged trespass committed by Eugenio Romero in unlawfully having cut timber from the lands of defendant in error, McIntosh. It appears from the record herein that, prior to the commencement of this action, the same defendant in error, William McIntosh, commenced and prosecuted to final determination an action against this same plaintiff in error, Eugenio Romero, and others, whereby he alleged that Eugenio Romero and the others were unlawfully cutting timber from his lands and prayed that the said Eugenio Romero and the other defendants in that action be permanently enjoined from the further cutting of timber upon his lands and for other relief. The plaintiff in error, Eugenio Romero, by his answer to the complaint in this action pleaded the judgment rendered in the first action between him and McIntosh as being res adjudicata of the cause of action in this suit. The defendant in error, McIntosh, demurred to this defense, and, the court having sustained the demurrer, plaintiff in error herein duly filed his exceptions to the ruling of the court sustaining the demurrer and filed an amended answer herein, and upon the issue thus joined this cause was tried by the court without a jury; the jury having been by both parties waived. The court rendered judgment against the plaintiff in error herein for the sum of $6,492, with interest at the rate of 6 per cent. per annum from July 18, 1906, to the date of judgment.

Under Laws 1907, c. 57, § 24, held, that the 12 months within which, under section 1, a writ of error could be sued out, should be computed from denial of motion for new trial.

S. B. Davis, Jr., and C. A. Spiess, both of East Las Vegas, for plaintiff in error.

E. W. Dobson and E. A. Mann, both of Albuquerque, for defendant in error.

HANNA, J. (after stating the facts as above).

Several assignments of error are presented for consideration, but we must first consider a motion for the dismissal of the writ of error upon the ground that the writ was not sued out within one year from the date when the judgment in the lower court became final.

The court rendered its judgment on January 10, 1912, and at the same time made an order granting plaintiff in error 20 days within which to file a motion for new trial, which was filed 15 days later, but not disposed of until January 16, 1913, almost a year later, when it was overruled. This writ of error was sued out of this court January 10, 1914.

[1] The question therefore presented is whether the judgment became final upon the date of its entry, or not until the order denying and overruling the motion for a new trial was made and entered.

Our statute of limitation upon the right to an appeal is section 1, c. 57, Laws 1907, viz.:

“Any person aggrieved by any final judgment or decision of any district court in any civil cause may at his election take an appeal or sue out a writ of error to the supreme court of the territory at any time within one (1) year from the date of the entry of the same. Appeals or writs of error may also be taken from final judgments or decrees in actions for partition that determine the rights and interests of the respective parties and direct partition to be made.”

In many jurisdictions where appellate courts have been called upon to pass upon general statutes, such as ours, providing that the appeal or proceedings in error shall be instituted within a certain time from the rendition or entry of the judgment or decree, it has been held that, where the motion for a new trial or rehearing is seasonably made, the time is to be computed from the date of the denial of the motion, and not from the date of the rendition or entry of the judgment or decree, where the motion was necessary to the consideration in the appellate court of the question involved. Thompson on Trials, § 2730; 2 R. C. L. 107; Pearce v. Strickler, 9 N. M. 46, 49 Pac. 727; Conradt v. Lepper, 13 Wyo. 99, 78 Pac. 1, 3 Ann. Cas. 627 (see cases collected in note following last citation).

This rule may be said to have the sanction of the larger number of American appellate courts, though the rule is severely criticized as one growing out of judicial legislation and is not followed by all American jurisdictions. Those departing from this rule, and holding that the time is to be computed from the actual rendition or entry of judgment or decree without regard to the fact that a motion for new trial or rehearing is pending, as evidenced by, at least, a partial list of the cases so holding, are California, Colorado, Michigan, Oregon, Ohio, Oklahoma, and Texas. See Bornheimer v. Baldwin, 42 Cal. 27; Brooks v. San Francisco, etc., 110 Cal. 173, 42 Pac. 570; Henry v. Merguire, 111 Cal. 1, 43 Pac. 387; Houser, etc., v. Hargrove, 129 Cal. 90, 61 Pac. 660; Puckhaber v. Henry, 147 Cal. 424, 81 Pac. 1105; Freas v. Townsend, 1 Colo. 86; Slatterly v. Robinson, 7 Colo. App. 22, 42 Pac. 179; Burchinell v. Bennett, 10 Colo. App. 150, 50 Pac. 206; Hill v. Hill, 114 Mich. 599, 72 N. W. 597; Selig v. Akron, etc., 10 O. C. D. 535, 19 Ohio Cir. Ct. R. 633; Brown v. Coal Co., 48 Ohio St. 542, 28 N. E. 669; Dowty v. Pepple, 58 Ohio St. 395, 50 N. E. 923; Cooper v. Yoakun, 91 Tex. 391, 43 S. W. 871; Doorley v. Buford, etc., 5 Okl. 594, 49 Pac. 936; Manes v. Hoss, 28 Okl. 489, 114 Pac. 698; Lee et al. v. Summers, 36 Okl. 784, 130 Pac. 268; McCartney v. Shipherd, 60 Or. 133, 117 Pac. 814, Ann. Cas. 1913D, 1257; Gearin et al. v. Portland, etc., 62 Or. 162, 124 Pac. 258; Hahn v. Astoria Nat. Bank et al., 63 Or. 1, 114 Pac. 1134, 125 Pac. 284; Miller v. Miller, 65 Or. 551, 131 Pac. 308, 133 Pac. 86.

We understand the reason generally urged in support of the first rule, herein referred to, to be that the character of finality does not attach to the judgment or decree until the motion for a new trial has been disposed of. The chief objection to the rule is, and this has given rise to the second rule, that the statute of limitation usually provides that the proceedings looking to a review of the cause must be instituted within a fixed time after the rendition or entry of the judgment or decree, and to modify the terms of the statute by judicial opinion, without statutory authority for such ruling, to the effect that the time limited is extended until a motion for...