William K. Warren Foundation v. Barnes

• Decision Date: 13 July 1960
• Docket Number: No. 6634,6634
• Citation: 1960 NMSC 69,354 P.2d 126,67 N.M. 187
• Parties: WILLIAM K. WARREN FOUNDATION, a charitable trust, James E. Logan, Winston Miller, Francis J. Cuneo, Katherine C. Schmidt, L. W. Ward and G. T. Buskirk, Defendants- Appellees, v. H. F. BARNES and Oates Golden, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 126

354 P.2d 126

67 N.M. 187

WILLIAM K. WARREN FOUNDATION, a charitable trust, James E Logan, Winston Miller, Francis J. Cuneo, Katherine C. Schmidt, L. W. Ward and G. T Buskirk Defendants- Appellees, v. H. F. BARNES and Oates Golden, Defendants-Appellants.

No. 6634.

Supreme Court of New Mexico.

July 13, 1960.

Rehearing Denied Aug. 17, 1960.

Atwood & Malone, E. Kirk Newman, Roswell, for appellants.

Hervey, Dow & Hinkle, Paul W. Eaton, Jr., Roswell, for appellees.

CARMODY, Justice.

This case commenced in the lower court on a complaint for interpleader, seeking an adjudication as to the effect of a joint oil and gas lease executed by different owners of separate tracts of land, i. e., whether or not the royalty was pooled. Certain defendants are the appellants and others are the appellees, the plaintiff having no interest other than as a stakeholder. However, before we can consider any of the alleged errors urged by the appellants, we must first determine whether or not this court has jurisdiction.

The final judgment was entered on May 2, 1959, and motion for appeal filed on May 29, 1959, but the order granting appeal was not filed until June 8, 1959, being thirty-seven days from the rendition of the judgment.

Our supreme court rule, insofar as it concerns this appeal, is rule 5(1), as amended (Sec. 21-2-1(5)(1), N.M.S.A.1953), as follows:

'1. Within thirty (30) days from the entry of any final judgment in any civil action any party aggrieved may appeal therefrom to the Supreme Court.

The above rule was adopted as an amendment to the original rule and made effective on January 1, 1955. It was again amended as of July 1, 1959, but the amendment had to do with extending the time for appeal under circumstances not pertinent to this case.

We have held many times that the allowance of an appeal is a jurisdictional matter. See, Chavez v. Village of Cimarron, 1958, 65 N.M. 141, 333 P.2d 882, together with the cases cited therein; and Public Service Co. of New Mexico v. First Judicial Dist. Court, 1959, 65 N.M. 185, 334 P.2d 713.

We have also held that the order allowing an appeal is the basis of the entire proceeding and that without such an order we have no jurisdiction. Cook v. Mills Ranch-Resort Co., 1926, 31 N.M. 514, 247 P. 826. Thus, the mere filing of the motion for appeal within time, as was done in this case by appellants, avails them nothing--it is the order itself that is material. The burden is on appellants to have the order signed and filed, and the lapse of time between the filing of the motion and the entry of the order allowing appeal would appear to negate any assertion that they proceeded 'without delay.' This should serve to distinguish the rather doubtful authority of Jaritas Live Stock Co. v. Spriggs, 1937, 42 N.M. 14, 74 P.2d 722, which appears to be our...