Scofield v. J. W. Jones Const. Co.

• Citation: 328 P.2d 389,1958 NMSC 91,64 N.M. 319
• Decision Date: 28 July 1958
• Docket Number: No. 6365,6365
• Parties: Harold E. SCOFIELD, Plaintiff-Appellee, v. J. W. JONES CONSTRUCTION COMPANY (N.S.L.), a corporation, Defendant-Appellant.
• Court: Supreme Court of New Mexico

Page 389

328 P.2d 389

64 N.M. 319

Harold E. SCOFIELD, Plaintiff-Appellee, v. J. W. JONES CONSTRUCTION COMPANY (N.S.L.), a corporation Defendant-Appellant.

No. 6365.

Supreme Court of New Mexico.

July 28, 1958.

Sherman & Hughes, Deming, for appellant.

Garland, Sanders & Martin, Las Cruces, for appellee.

McGHEE, Justice.

The plaintiff-appellee obtained a verdict for $30,000 on account of personal injuries and property damage as the result of an intersection collision between a car he was driving and a truck belonging to the defendant-appellant. Later a remittitur of $10,000 was filed after the trial court announced he would grant a new trial unless such action was taken by the appellee, leaving a net judgment in the sum of $20,000.

Numerous errors are assigned by the appellant in its efforts to secure a reversal, but we are met at the outset of our consideration by the claim of the appellee that we are without jurisdiction to entertain them for the reason the appeal was not taken within thirty days from the entry of the judgment as provided by Supreme Court Rule 5, Sec. 1, as amended, effective January 1, 1955. Sec. 21-2-1(5), 1953 N.M.S.A., as amended. The rule reads:

'Within thirty days from the entry of any final judgment in any civil action, any party aggrieved may appeal therefrom to the Supreme Court.'

The record discloses the following as to the various steps taken in the case, all in the year of 1957:

March 23 Jury verdict for plaintiff in the sum of $30,000.

April 1 Motion filed for judgment non obstante veredicto.

April 25 Judgment in accordance with verdict.

April 26 Order entered overruling motion for judgment non obstante veredicto.

May 3 Motion for new trial filed.

August 22 Motion for new trial granted unless plaintiff filed remittitur for $10,000.

August 27 Remittitur filed by plaintiff.

August 27 Order entered denying motion for a new trial.

August 30 Motion for appeal filed and order entered granting it.

It will be noticed that the motion for judgment non obstante veredicto was filed nine days after the return of the verdict, and denied twenty five days thereafter, but one day subsequent to the filing of the judgment, and that the motion for a new trial was filed eight days subsequent to the entry of the judgment. No action, however, was taken on the motion for a new trial until August 22 when it was determined a new trial would be granted unless a remittitur was filed, and the order denying the motion was entered on August 27, with the appeal being allowed three days later.

The crucial question is: Does the filing of a motion for a new trial and the time which elapses until and order is entered thereon toll the time for taking an appeal? If the time is thus tolled then the appeal was timely taken; if not then the appeal must be dismissed under our holding in Breithaupt v. State, 1953, 57 N.M. 46, 253 P.2d 585, that we are without jurisdiction to entertain an appeal which is not timely taken.

The question first arose in this court in Pearce v. Strickler, 1897, 9 N.M. 46, 49 P. 727, 728, where judgment on the verdict of a jury was entered on February 6, 1896, immediately following the return of the verdict, in accordance with then existing rules where a party had not given notice of intention to file a motion for a new trial. A motion for a new trial was seasonably filed, and on February 15, 1896, hearing on the motion was continued for thirty days, which carried the motion over from a special term into the regular March term. The motion was denied on March 27, 1896. It was stated the period of limitation ran from the day of final judgment to the time the writ of error was lodged in the court below. The court stated:

'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.'

This holding was followed in Sacramento Valley Irrigation Co. v. Lee, 1910, 15 N.M. 567, 113 P. 834; Dye v. Meece, 1911, 16 N.M. 191, 113 P. 839, and finally with apparent reluctance in Romero v. McIntosh, 1914, 19 N.M. 612, 145 P. 254.

In the latter case it was stated that where the motion for a new trial or rehearing was seasonably made the time was 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.

We then had King v. McElroy, 1933, 37 N.M. 238, 21 P.2d 80, 84, a non jury case, where it clearly appears the former holdings on the point were in fact overruled where the motion is denied and there is no material change in the judgment. The court was there dealing with what was then Sec. 105-801, Comp.St.1929, now Sec. 21-9-1, 1953 N.M.S.A. The losing party had moved the judgment be set aside and that another be entered in his favor which motion was not ruled upon for more than thirty days after it had been filed, and it was more than six months after the filing of the judgment before a writ of error was sued out here. The court then on motion of the losing party had entered an order striking a recitation in the judgment that an appeal had been asked for and allowed. This court said there had been no real change in the judgment, saying:

'We hold that the motion directed agianst the judgment entered September 25, 1931, which motion was filed September 10, 1931, even if becoming effective only upon the date of subsequent entry of the judgment, was on October 26, 1931, through failure of the court to rule thereon prior thereto, in legal effect denied, and the motion should thereafter have been treated as denied by the court, and all parties to the suit. We further hold that section 105-801, Comp.St.1929, and the proceedings thereunder respecting motions directed against the judgment and which result in a denial of the motion do not have the effect of suspending the operation of the judgment after the date of its entry, so far as the running of the six months from entry of final judgment limited for appeal or writ of error is concerned. In such case, the assault upon the judgment, final when entered being unsuccessful, the character of the judgment remains unaffected.'

But here the appellant secured in fact a substantial reduction in the amount of the judgment when the appellee filed a remittitur of $10,000 in order to avoid having a new trial granted, so we must say whether this fact tolled the time or started it running again for appeal purposes from the date of the order denying the motion for the new trial sought by appellant.

Since the cases set out above were filed this court adopted our Rules of Civil Procedure which were modeled on the Federal Rules of Civil Procedure, 28 U.S.C.A. Their rule 73(a) relating to the time for taking an appeal from a judgment is the same as ours except we did not adopt the provision that a judgment shall be suspended during the time the trial court is considering a motion attacking a judgment, so that under that rule the time for appeal begins to run from the date of the entry of the ruling on motions directed against the judgment.

We did not adopt the federal rules in toto, but only such as the Rules Committee and this Court thought advisable, and we are strongly persuaded by the argument that considerable weight should be given to our refusal to provide the time for appeals would be tolled during the time the motions were pending. King v. McElroy had been in the reports for many years when we adopted our present rules, and it must have been thought 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.

We believe it is implicit in the King case that a movant who obtains a substantial modification of the judgment against him, as appellant did in this case, is entitled to have the time for taking his appeal tolled during the pendency of the motion.

Section 21-9-1, 1953 N.M.S.A., covers non jury cases only, so the motion in this case was not denied by operation of law thirty days after it was filed.

We hold the appeal was in time and the case is properly here for review on its merits.

The first point relied upon for a reversal is the denial of a motion for change of venue made after the jurors had been sworn to try the case.

The appellant had been doing paving work for the Village of Lordsburg and it was claimed dissatisfaction with such work on the part of the inhabitants caused them to be prejudiced against the appellant. The Judge who heard the voir dire examination of the members of the jury panel denied the motion. The appellant did not ask the trial court to make findings of fact and conclusions of law on the record so there is nothing upon which to base an appellate review of the question. State v. Fernandez, 56 N.M. 689, 248 P.2d 679. Coupled with the motion for a change of venue was one for a mistrial but we know of nothing warranting the latter when the motion for a change of venue was not sustained.

Nor was the appellant's position helped by his motion for a new trial where he submitted an affidavit of one of the jurors as to what went on in the jury room in an effort to show prejudice against the appellant, and that the jurors considered matters not before them in the court room. It is no longer open to question in this state that a juror may not impeach his verdict by affidavit or testimony after verdict. McKinney v. Smith, 1958, 63 N.M. 477, 322 P.2d 110.

The next point made by the appellant is that the trial court erred in allowing an investigating officer to testify as to which vehicle first entered the intersection where the collision occurred. The record discloses the following objection, statements and ruling:

'* * * Mr. Garland: Q. Now,...