Shortle v. Mccloskey, 4022.
| Decision Date | 01 October 1934 |
| Docket Number | No. 4022.,4022. |
| Citation | 37 P.2d 800,38 N.M. 548 |
| Parties | SHORTLE et al.v.McCLOSKEY et al. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Bernalillo County; Milton J. Helmick, Judge.
Suit by Alice M. Shortle and another against Jesse St. Claire McCloskey and others. From a final decree, including a foreclosure on real estate, and from an order confirming the sale, defendants appeal. On motion to dismiss the appeal.
Appeal from order confirming the sale dismissed; in other respects motion denied.
Appeal from order confirming foreclosure sale not taken within 20 days after entry thereof though within 20 days after order overruling motion to set aside and vacate such order, must be dismissed.
T. W. Gibson, of Albuquerque, for appellants.
John F. Simms, of Albuquerque, for appellees.
On the 21st day of October, 1933, the plaintiffs obtained a final decree by default, including a foreclosure on real estate with the appointment of a receiver and special master. On March 5, 1934, the receiver and special master filed his report of sale and account, and on the same day, March 5, 1934, the sale was confirmed and the account approved. On March 30, 1934, appellants in one application prayed an appeal from the final judgment and from the order confirming the sale, and on the same day in one order the district court granted the appeal from the final judgment and from the order confirming the sale.
Appellees present a motion to dismiss this appeal upon the following grounds:
(1) Because the appellants have without authority of law attempted to review by one appeal, prayed for and granted by the district court on March 30, 1934, a final judgment and decree entered on the 21st day of October, 1933, and an order of confirmation of sale made thereafter, to wit, on March 5, 1934.
(2) Because as to the appeal from the order of confirmation made and entered on the 5th day of March, 1934, this court has no jurisdiction to entertain the same because the appeal was prayed for and granted more than 20 days after the entry of said order of confirmation.
[1] In support of the first point, movant urges that the appeal is duplicitous. Counsel quotes 3 C. J., page 335, note 58, as follows: “As a general rule, two separate judgments, decrees, or orders cannot be brought up for appellate review by one writ of error or one appeal.”
The text goes on to say that this is especially true where the parties necessary and proper to a review of one of the judgments would not be proper to a review of the other. The text proceeds: “*** For the purpose of an appeal, an order confirming a sale in a foreclosure suit and an order for a judgment for deficiency, may be considered as one, although in fact entered separately; and other exceptions or apparent exceptions to the general rule have been recognized.”
However that may be, we think the first point of the motion not well taken because of section 3 of rule XIV, which provides that: “No motion to dismiss an appeal or writ of error *** where such motion is based upon other than jurisdictional grounds, will be granted except upon a showing, satisfactory to the court, of prejudice to the moving party, or that the ends of justice require the granting thereof.” Counsel for appellee has shown no prejudice by reason of the duplicity.
We think the second ground of the motion is well taken.
[2] The order confirming the sale is a final order affecting a substantial right made after the entry of final judgment. See rule II, section 2, Rules of Appellate Procedure; Armijo v. Pettit, 34 N. M. 559, 286 P. 827; Cooper v. Brownfield, 33 N. M. 464, 269 P. 329. We...
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...Bank, 161 Ark. 426, 256 S.W. 384; Clarke et al. v. Federal Land Bank of St. Louis, 197 Ark. 1094, 126 S.W.2d 601; Shortle et al. v. McCloskey et al., 38 N.M. 548, 37 P.2d 800; McCredie et al. v. Dubuque Fire & Marine Ins. Co., 49 Okl. 496 153 P. 846; Casey v. Smith et al., 36 S.D. 36, 153 N......
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Skarda's Will, In re
...security for the debt itself. In re Estate of Tarlton, 84 N.M. 95, 500 P.2d 180 (1972); In re Kenney's Estate, supra; Shortle v. McCloskey, 38 N.M. 548, 37 P.2d 800 (1934). The trial court found, however, that the debts incurred by decedent prior to his death were paid as a cost of administ......
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Hurst v. Hurst
...confirming the sale was a final order from which an appeal lies. A.R.S. § 12-2101, subsecs. C and E, as amended; Shortle v. McCloskey, 38 N.M. 348, 37 P.2d 800, 801 (1934); see Redman v. White, 85 Ariz. 82, 84, 331 P.2d 1096 (1959). 4 Other cases holding that an order confirming a judicial ......
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State v. White, Docket No. 28,588 (N.M. App. 5/10/2010)
...power"). It is axiomatic that a party may not do indirectly that which the law does not permit directly. Cf. Shortle v. McCloskey, 38 N.M. 548, 550, 37 P.2d 800, 801 (1934) (holding that permitting appellants to appeal the lower court's refusal to vacate the order as opposed to appealing th......