Wells Fargo Bank v. Dax

Decision Date06 December 1979
Docket NumberNo. 4116,4116
Citation93 N.M. 737,1979 NMCA 157,605 P.2d 245
PartiesWELLS FARGO BANK, Plaintiff-Appellee, v. Earl DAX and Henry Jewell, Defendants-Appellant.
CourtCourt of Appeals of New Mexico

WOOD, Chief Judge.

The complaint and counterclaim involve an automobile lease and Jewell's alleged conversion of the automobile. The appeal does not involve the merits of these claims. The case was tried on October 3, 1978. The appeal presents issues concerning notice of trial. We discuss (1) a purported local rule concerning notice; (2) waiver of notice; and (3) adequacy of notice.

Judgment was entered against both defendants on December 27, 1978. Jewell moved for a new trial on January 5, 1979. An order denying the motion for a new trial was filed March 30, 1979. Jewell appeals from the order denying him a new trial. The motion for new trial claimed that Jewell was not given written notice of the trial, was unable to call witnesses, and was denied the opportunity to present evidence at the trial held October 3, 1978.

Purported Local Rule Concerning Notice

The record shows written notice of trial was twice given to counsel. Both of these trial settings were vacated. This case was tried on the basis of oral notice.

Jewell contends that Rule 16 of the Rules of the Second Judicial District require that written notice be given of a trial setting. Relying on decisions from other jurisdictions, Jewell asserts that compliance with a rule, providing for written notice, is mandatory. See City and County of San Francisco v. Carraro, Cal.App., 28 Cal.Rptr. 680 (1963).

Because this purported local rule is not before us, we do not quote the purported rule on which Jewell relies.

Rule of Civ.Proc. 40 states:

The district courts shall provide by rule for the placing of actions upon the trial calendar (1) without request of the parties, or (2) upon request of a party and notice to the other parties, or (3) in such other manner as the courts deem expedient.

Rule of Civ.Proc. 83 states:

Each district court by action of the judge of such court or of a majority of the judges thereof, may from time to time make and amend rules governing its practice not inconsistent with these rules. Copies of rules and amendments so made by any district court, shall, upon their promulgation be furnished to the supreme court of the state. In all cases not provided for by rule, the district courts may regulate their practice in any manner not inconsistent with these rules.

Rule of Civ.Proc. 83 requires that local rules be "furnished" the Supreme Court. Rule of Civ.Proc. 83 does not say whether the local rule is invalid if the Supreme Court is not furnished a copy. Nor do we decide this question. See Maestas v. Christmas, 63 N.M. 447, 321 P.2d 631 (1958); Hartford Accident and Indemnity Co. v. Beevers, 84 N.M. 159, 500 P.2d 444 (Ct.App.1972); Tate v. New Mexico State Board of Education, 81 N.M. 323, 466 P.2d 889 (Ct.App.1970).

The local rule relied on by Jewell does not appear in the record before us. The briefs refer to the local rule, but the briefs do not establish the record. See Porter v. Robert Porter & Sons, Inc., 68 N.M. 97, 359 P.2d 134 (1961); State v. Vallejos, 86 N.M. 39, 519 P.2d 135 (Ct.App.1974). The local rule, not being in the record before, is not before us for review unless it is before us on some other basis. Galvan v. City of Albuquerque, 85 N.M. 42, 508 P.2d 1339 (Ct.App.1973).

This Court has held that we will judicially notice the records of the Supreme Court. State v. Vigil, 85 N.M. 328, 512 P.2d 88 (Ct.App.1973). The Supreme Court will judicially notice local court rules properly promulgated and filed with the Supreme Court. Spingola v. Spingola, 91 N.M. 737, 580 P.2d 958 (1978).

The Supreme Court clerk's office has informed us that the only rules of the Second Judicial District filed with the Supreme Court were those rules filed on September 6 and December 10, 1974. Rule 16 of the September 6, 1974 filing deals with pre-trial motions and is not applicable to the notice issue. Rule 24 of the September 6, 1974 filing deals with "Settings and Notice." Rule 24(a) deals with settings on the court's initiative; it does not require written notice from the court. Rule 24(b) deals with settings upon request by counsel and contains language somewhat comparable to the local rule relied on by Jewell. Since this Rule 24(b) pertains solely to settings requested by counsel, and since the record does not show that counsel requested the disputed trial setting in this case, Rule 24(b) is not applicable. Rule 16 of the December 10, 1974 filing also deals with pre-trial motions and is not applicable to the notice issue in this case. Rule 18(c)(6) and (7) of the December 10, 1974 filing is similar to the local rule relied on by Jewell; these provisions, however, deal with settings requested by counsel, they make no mention of settings initiated by the trial court. We find nothing in the rules filed December 10, 1974 which deals with settings initiated by the trial court.

The Rule 16 on which Jewell relies cannot be considered because it is not in the appellate record, and not having been filed with the Supreme Court, may not be judicially noticed. Second Judicial District Rules filed with the Supreme Court do not require written notice of a trial setting initiated by the trial court.

Jewell's claim that a local rule required written notice of the trial setting has not been established. Accordingly, we do not reach the question of whether the local rule relied on by Jewell conflicts with Rule of Civ.Proc. 40.

Waiver of Notice

The record shows that Mr. Fairfield, a lawyer in the firm of defendant's counsel, received a telephone call from the judge's secretary on October 3, 1978. Fairfield took the call because he was the only attorney in the office at the time. This call was at about 2:15 p. m. and informed Fairfield that a hearing on the merits was to have begun at 2:00 p. m. of the same day. Fairfield "immediately" went to the courtroom. The record indicates that the trial court informed Fairfield that plaintiff's attorney was "just proceeding to get a default entered." Fairfield said: "If it is going to come down to a default, I guess I'd better do something." Fairfield informed the court that he had "absolutely no knowledge of this case" and that the firm's file did not show any notice of the trial setting. Fairfield asked: "Am I to assume we're going to try this case this afternoon, Your Honor?" The court replied: "If we're going to trial, it's today." After a recess of approximately 30 minutes, Fairfield announced that defendant was as "ready as he is going to be," and the case was tried. Fairfield cross-examined the two witnesses for plaintiff, made objections, and introduced a portion of Jewell's deposition into evidence.

In denying the motion for a new trial, the trial court ruled that defendants "were given adequate notice of the trial . . . ." We discuss the adequacy of notice subsequently in this opinion. Plaintiff contends that the failure of Fairfield to ask for a continuance, and his participation in the trial, was a waiver of any issue concerning notice. We disagree.

Fair v. Morrow, 40 N.M. 11, 52 P.2d 612 (1935), on which plaintiff relies, is not applicable. That case involved notice to the defendant litigants, not notice to counsel for the litigants. Fair v. Morrow, supra, does not discuss the question of notice to counsel who participated in the trial, and does not indicate there was an issue concerning notice to counsel.

The failure of Fairfield to move for a continuance does not show a waiver of the notice issue. The record indicates that Fairfield was faced with going to trial or having a default judgment entered against Jewell; "If we're going to trial, it's today." A motion for continuance, in this situation, would have been a useless act. Compare Porter v. Mesilla Valley Cotton Products Co., 42 N.M. 217, 76 P.2d 937 (1938).

"Waiver" is the intentional relinquishment or abandonment of a known right. Cooper v. Albuquerque City Commission, 85 N.M. 786, 518 P.2d 275 (1974). Fairfield informed the trial court that his firm's file showed no notice of a trial setting and proceeded with the trial when faced with a default against Jewell. The record provides no basis for holding that Fairfield waived the notice issue.

Adequacy of Notice

Due process requires a reasonable notice of the trial setting so that the person bound by the results of the trial would have the opportunity to have his day in court. State v. Allman, 78 N.M. 1, 427 P.2d 886 (1967); see In re Downs, 82 N.M. 319, 481 P.2d 107 (1971); Westland Development Co. v. Saavedra, 80 N.M. 615, 459 P.2d 141 (1969); In re Nelson, 78 N.M. 739, 437 P.2d 1008 (1968).

The trial court found that defendants were given adequate notice of trial; this finding necessarily involves notice to the attorneys because there is nothing indicating Jewell had any notice that trial would be held on October 3, 1978. If "adequate notice" was given, due process was met.

It is undisputed that Fairfield received notice at 2:15 p. m. on the date of trial; this was fifteen minutes after the time the trial was scheduled to begin. This was not adequate notice. What other notice was given?

When Fairfield appeared in response to the telephone call, he raised the question of notice. The following occurred:

MR. VENER: Mrs. Meyer (sic) outside says she called your office on August 18th and gave you notice.

MR. FAIRFIELD: I don't dispute that. I don't know. I think that Mr. McCallister did have a conversation.

The remarks of plaintiff's attorney concerning notice did not establish that notice was given by the judge's secretary. Compare State v....

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