State v. ARNOLD

Decision Date06 August 1947
Docket NumberNo. 5020,5020
Citation183 P.2d 845,51 N.M. 311
PartiesSTATE v. ARNOLD.
CourtNew Mexico Supreme Court

[183 P.2d 845, 51 N.M. 312]

C. C. McCulloh, Atty. Gen., and Robert W. Ward, Asst. Atty. Gen., for appellant.

William T. O'Sullivan, of Albuquerque, for appellee.

COMPTON, Justice.

A jurisdictional question presents itself at the outset. This court will notice the state of the record to determine whether it has jurisdiction and may, from its own discovery, question that fact. Lack of jurisdiction at any stage of a proceeding is a controlling consideration to be resolved before going further. Davidson v. Enfield, 35 N.M. 580, 3 P.2d 979. An examination of the record discloses that the final judgment was entered September 3, 1946. The order granting an appeal was entered December 21, 1946. No timely application for an appeal was made or filed.

Rule 5, paragraph 1 of the Rules of the Supreme Court, section 19-201(5), relating to the taking of appeals is as follows: 'Within three months from the entry of any final judgment in any civil action, any party aggrieved may appeal therefrom to the Supreme Court.'

This rule modifies Sec. 105-2501, N.M.1929 Comp., which reads as follows: 'Within six months from the entry of any final judgment in any civil action, any party aggrieved may appeal therefrom to the supreme court of the state.'

Thus the question is presented (1) whether Rule 5, Section 1, effectually modifies Section 105-2501, 1929 Comp., and if so, (2) do we have jurisdiction to proceed to a determination of the matter on the merits in the face of the rule limiting the time.

It is contended by appellant that the statute in question is concerned solely with substantive rights and cannot be modified or limited by rule and that, consequently, the rule is void. Accordingly, the appellant urges this court to proceed to a determination of the issues involved. In 1933 the legislature enacted a statute concerning the rule making power known as Laws of 1933, Chapter 84, 1941 Comp., Sec. 19-301, reading as follows: 'The Supreme Courtof the state of New Mexico shall, by rules promulgated by it from time to time, regulate pleading, practice and procedure in judicial proceedings in all courts of New Mexico, for the purpose of simplifying the same and of promoting the speedy determination of litigation upon its merits. Such rules shall not abridge, enlarge or modify the substantive rights of any litigant. The Supreme Court shall cause such rules to be printed and distributed to all members of the bar of the state of New Mexico and to all applicants, and the same shall not become effective until thirty (30) days after they have been so printed, made ready for distribution and so distributed.'

The rule adopting all statutes relating to pleading, practice and procedure is Section 19-302, 1941 Comp., as follows: 'All statutes relating to pleading, practice and procedure, now existing, shall, from and after the passage of this act (§§ 19-301, 19-302) have force and effect only as rules of court and shall remain in effect unless and until modified or suspended by rules promulgated pursuant hereto.'

It would serve no good purpose for us to indulge in exhaustive discussion of the Supreme Court's rule making power. The subject is so well considered in the case of State v. Roy, 40 N.M. 397, 60 P.2d 646, 110 A.L.R. 1, that we see no occasion to add to what is there said. Suffice it to say that, whatever the source, this Court possesses unquestioned power to make rules touching pleading, practice and procedure. That this much is affirmed in State v. Roy, supra, none can question. The decisive consideration in the case before this court, then, is whether the rule adopted by it limiting the time for taking an appeal to three months, rather than six months as previously provided by statute, effects a substantive right or a matter of procedure merely.

This exact question has been before the Supreme Court of Colorado and decided by it adversely to the contention of appellant in the case at bar. The Colorado Actof 1913, Laws 1913, p. 447, granting to the Supreme Court the power to make 'rules of practice and procedure in...

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39 cases
  • Lovelace Medical Center v. Mendez
    • United States
    • New Mexico Supreme Court
    • January 7, 1991
    ...and the court of appeals is within the legislative power to prescribe. N.M. Const. art. VI, Secs. 2, 29. See also State v. Arnold, 51 N.M. 311, 314, 183 P.2d 845, 846 (1947): "The creating of a right of appeal is a matter of substantive law and outside the province of the court's rule makin......
  • State v. Ball
    • United States
    • New Mexico Supreme Court
    • April 24, 1986
    ...enlarge or modify the substantive rights of any litigant. (Emphasis added.) The right to appeal is a substantive right. State v. Arnold, 51 N.M. 311, 183 P.2d 845 (1947). Were we to apply Metro.Rule 71(b), instead of Article VI, Sec. 27 of our constitution, we would be abridging the substan......
  • Gray v. Armijo
    • United States
    • New Mexico Supreme Court
    • June 18, 1962
    ...law as follows: '* * * substantive law, speaking broadly, is that which creates duties, rights, and obligations * * *.' In State v. Arnold, 51 N.M. 311, 183 P.2d 845, we held that reducing the time for allowance of appeals from six to three months involved procedural and not a substantive c......
  • Cordova v. Cline
    • United States
    • New Mexico Supreme Court
    • May 22, 2017
    ...the authority to determine what "questions should be subject to judicial review by appeal"); State v. Arnold , 1947-NMSC-043, ¶ 11, 51 N.M. 311, 183 P.2d 845 ("The creating of a right of appeal is a matter of substantive law and outside the province of the court's rule making power."). The ......
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