Varney v. Taylor

CourtSupreme Court of New Mexico
Citation448 P.2d 164,1968 NMSC 189,79 N.M. 652
Docket NumberNo. 8475,8475
PartiesJ. R. VARNEY, Administrator of the Estate of Jackie Raymond Varney, Deceased, Plaintiff-Appellee and Cross-Appellant, v. Dennis Leo TAYLOR and Arrow Gas Service Company, Defendants-Appellants and Cross-Appellees.
Decision Date02 December 1968

Page 164

448 P.2d 164
79 N.M. 652
J. R. VARNEY, Administrator of the Estate of Jackie Raymond
Varney, Deceased, Plaintiff-Appellee and
Dennis Leo TAYLOR and Arrow Gas Service Company,
Defendants-Appellants and Cross-Appellees.
No. 8475.
Supreme Court of New Mexico.
Dec. 2, 1968.

[79 NM 653]

Page 165

James L. Brown, Cooney & Briones, Farmington, for appellee and cross-appellant.

Tansey, Rosebrough & Roberts, Richard L. Gerding, Farmington, Botts, Botts & Mauney, Albuquerque, for appellant and cross-appellee Arrow Gas.

White & Musgrove, Farmington, for appellant and cross-appellee Taylor.


NOBLE, Justice.

This is the third appeal of this case. We are not concerned in the present appeal with issues decided on the first appeal. (Varney v. Taylor, 71 N.M. 444, 379 P.2d 84). Thus, except when reference is expressly made to the first appeal, all references to the prior appeal or to the decision therein relate to the second appeal, 77 N.M. 28, 419 P.2d 234. We remanded the case with 'directions to vacate the judgment and to enter a new judgment in appellee's (plaintiff below) favor for such amount as the court shall determine to be the present worth of decedent's life, computed in a manner consistent with this opinion.'

Pursuant to the mandate, amended findings and conclusions were made and a new judgment entered, from which this appeal was taken. Two principal points are relied upon for reversal: (1) That this court had no jurisdiction of the second appeal and, consequently, no jurisdiction of the present appeal; and (2) that the judgment of March 3, 1967 did not conform to the mandate of this court.

Subsequent to the entry of the judgment following the decision of this court, the defendants appear to have discovered for the first time that this case was originally filed in the district court on August 28, 1960; however, the defendants filed a notice of appeal from the judgment of February 24, 1964 without applying for and obtaining an order granting the appeal as required by Supreme Court Rule 5(5) (§ 21--2--1(5)(5), N.M.S.A.1953) applicable to cases filed in the district court prior to March 15, 1961. Upon discovering that they followed the wrong procedure for appeal, the defendants moved the district court to vacate the judgment entered pursuant to our mandate on the second appeal and to reinstate the judgment of February 24, 1964, asserting that this court was without jurisdiction to consider that appeal. They now contend that because of the defective appellate procedure in the prior appeal, this court now lacks jurisdiction to consider the present appeal since it was not timely filed after the February 24, 1964 judgment.

It is true that we have consistently held that the timely entry of an order allowing an appeal pursuant to Supreme Court Rule 5(5) prior to the effective date of the 1961 amendment is jurisdictional. Scott v. Newsom, 74 N.M. 399, 394 P.2d 253; Reed v. Fish Engineering Corp., 74 N.M. 45, 390 P.2d 283. See also Evans v. [79 NM 654]

Page 166

Barber Super Markets, Inc., 69 N.M. 13, 363 P.2d 625; William K. Warren Foundation v. Barnes, 67 N.M. 187, 354 P.2d 126. However, we are equally committed to the 'right or wrong' rule under which a decision upon a former appeal is binding upon the appellate court on a second appeal. Sanchez v. Torres, 38 N.M. 556, 37 P.2d 805; McBee v. O'Connell, 19 N.M. 565, 145 P. 123; Crary v. Field, 10 N.M. 257, 61 P. 118. We have also held that the law of the case doctrine applies not only to questions which are expressly or by necessary implication raised and ruled upon in the prior appeal, but also to questions which might have been but were not raised or presented. Jencks v. Goforth, 57 N.M. 627, 261 P.2d 655; Sanchez v. Torres, supra. While this court has not heretofore had occasion to determine the precise question, it appears that the courts of other jurisdictions applying the 'right or wrong' rule uniformly hold that an appellate court will not, upon a later appeal, examine the correctness of rulings in questions of its jurisdiction decided upon a former appeal, nor does an error on questions of its jurisdiction render the doctrine of the law of the case inapplicable. See Annot., 87 A.L.R.2d 271, at § 18(c), p. 338. For example, the California District Court of Appeals directly answered the defendant's argument in this case when it said, in Bailey v. Fosca Oil Co., Ltd., 216 Cal.App.2d 813, 31 Cal.Rptr. 380, respecting the law of the case rule:

'This is so, even though it is contended that absence of jurisdiction renders the decision on the prior appeal a nullity and ineffective as a determination of any question.'

The rule of Clary v. Hoagland, 6 Cal. 685, that '(t)he first point decided by any Court, although it may not be in terms, is, that the Court has jurisdiction, otherwise it would not proceed to determine the rights of the parties,' was expressly reaffirmed in Gore v. Bingaman, 20 Cal.2d 118, 124 P.2d 17, and in Bailey v. Fosca Oil Co., Ltd., supra. See also Evans v. Barber Super Markets, Inc., supra; Endresse v. Van Vleet, 118 Mont. 533, 169 P.2d 719; Estate v. Stoian, 138 Mont. 384, 357 P.2d 41; and McNee v. Hart, 117 Okl. 220, 246 P. 373. However, what amounts in effect to an adjudication of the issue on a prior appeal, right or wrong, has become the law of the case, and is binding alike upon us and the litigants in all subsequent proceedings in the case. Grand Central Mining Co. v. Mammoth Mining Co., 36 Utah 364, 104 P. 573. See also Washington Bridge Co. v. Stewart, 44 U.S. (3 How.) 413, 11 L.Ed. 658; Lincoln Joint Stock Land Bank v. Brown, 224 Iowa 1256, 278 N.W. 294.

We think the holding of those courts applying the law of the case on a second appeal to questions of the appellate court's jurisdiction in a prior appeal, whether or not expressly ruled upon, is based upon sound reasoning, and requires our adherence. Having passed on the merits of the controversy in the prior appeal, there is nothing now before us except the proceedings subsequent to the mandate. Washington Bridge Co. v. Stewart, supra.

We now turn to defendants' contentions that upon remand it was error for the trial court to fail (1) to consider the fact of pecuniary injury to the surviving parties entitled to judgment, (2) to deduct decedent's personal living expenses, and (3) to grant a new trial.

Defendants argue that the court, on remand, failed to follow our opinion and the mandate in that it did not limit recovery to the pecuniary injuries to the surviving parties entitled to judgment, in this case decedent's father and mother. As we understand their argument, it is essentially that the award must be limited to the amount the father and mother of decedent might reasonably have expected to receive as pecuniary benefits from the continued life of their son, an amount which would have been considerably less than was awarded on remand. That argument,[79 NM 655]

Page 167

however, was disposed of by the former opinion in saying:

'* * * recovery belongs to the relative for whose benefit the suit is brought, and the right of recovery extends to those distributees named in the statute, or to those entitled under the laws of descent and distribution, in the same manner and to the same extent as is given to the wife and children of the decedent.'

Our holding in that respect became the law of this case, and is binding upon us and the litigants upon a subsequent appeal.

It is now contended that in view of our holding that net income is the proper basis for measuring anticipated earnings of a decedent, his estimated personal living expenses must be deducted to arrive at a realistic measure of damages which would reflect the pecuniary loss sustained by his wrongful death. An examination of the record before us makes it apparent that the case was not originally tried upon this theory. This view is further reflected by the fact that neither defendant requested a finding of fact concerning decedent's living expenses. The defendants, while urging that a new trial should be granted to permit proof of such expenses, agree that the proof in the record falls far short of that necessary to permit the court to make findings thereon. However, it is the settled law of this jurisdiction that upon remand the district court has only such jurisdiction as the opinion and mandate of this court confer. Gruschus v. C. R. Davis Contracting Co., 77 N.M. 614, 426 P.2d 589; Wilson v. Employment Sec. Comm'n, 76 N.M. 652, 417 P.2d 455; Sproles v. McDonald, 74 N.M. 243, 392 P.2d 584; Chronister v. State Farm Mut. Auto. Ins. Co., 72 N.M. 159, 381 P.2d 673; State ex rel. Del Curto v....

To continue reading

Request your trial
29 cases
  • Stang v. Hertz Corp., 312
    • United States
    • New Mexico Court of Appeals of New Mexico
    • November 26, 1969
    ...absence of pecuniary injury to the statutory beneficiaries. The question was presented, but not answered, in Varney III (Varney v. Taylor, 79 N.M. 652, 448 P.2d 164 (1968)). The opinion 'Defendants argue that the court, on remand, failed to follow our opinion and the mandate in that it did ......
  • Sangre de Cristo Development Corp., Inc. v. City of Santa Fe, 9441
    • United States
    • New Mexico Supreme Court of New Mexico
    • November 22, 1972
    ...this appears to be the total effect of deciding a case in which jurisdiction is lacking but overlooked on appeal. Varney v. Taylor, 79 N.M. 652, 448 P.2d 164 (1968). This Court, by mere inference or presumption, cannot logically be considered to have overruled the long line of cases, [84 NM......
  • Gerety v. Demers, 11847
    • United States
    • New Mexico Supreme Court of New Mexico
    • December 13, 1978 resolved will not be determined in a different manner on a subsequent appeal. Id. at 560, 494 P.2d at 973. In Varney v. Taylor, 79 N.M. 652, 448 P.2d 164 (1968), as here, the case had been up for the third time on appeal to this Court. The court reiterated our rule that we are committed ......
  • State ex rel. King v. Uu Bar Ranch L.P., 30,722.
    • United States
    • New Mexico Supreme Court of New Mexico
    • March 5, 2009
    ...973 (1972) ("The doctrine of law of the case has long been recognized in New Mexico, since before statehood. . . ."); Varney v. Taylor, 79 N.M. 652, 654, 448 P.2d 164, 166 (1968) (same). The law of the case generally applies to questions of law, not "purely fact" questions. Gruschus v. C.R.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT