William K. Warren Foundation v. Barnes, 6634
| Docket Nº | No. 6634 |
| Citation | 1960 NMSC 69, 354 P.2d 126, 67 N.M. 187 |
| Case Date | July 13, 1960 |
| Court | Supreme Court of New Mexico |
Page 126
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.
Rehearing Denied Aug. 17, 1960.
[67 NM 187] Atwood & Malone, E. Kirk Newman, Roswell, for appellants.
[67 NM 188] 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.
Page 127
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...
To continue reading
Request your trial
-
Varney v. Taylor, No. 8475
...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......
-
State v. Nehemiah Child G., NO. A-1-CA-35528
...jurisdictional question is not raised by the parties is of no consequence."); William K. Warren Found. v. Barnes , 1960-NMSC-069, ¶¶ 7-8, 67 N.M. 187, 354 P.2d 126 (noting that jurisdiction cannot be conferred by the parties through waiver or consent). {15} Having concluded that Section 39-......
-
State ex rel Overton v. New Mexico State Tax Commission, No. 8793
...the question of jurisdiction compels an answer. State v. Morris, 69 N.M. 89, 364 P.2d 348 (1961); William K. Warren Foundation v. Barnes, 67 N.M. 187, 354 P.2d 126 (1960); Taos County Board of Education v. Sedillo, 44 N.M. 300, 101 P.2d 1027 In Sedillo, supra, we pointed out that there must......
-
Home Fire & Marine Ins. Co. v. Pan Am. Petroleum Corp., No. 7193
...provided by the rules is jurisdictional, Chavez v. Village of Cimarron, 65 N.M. 141, 333 P.2d 882; William K. Warren Foundation v. Barnes, 67 N.M. 187, 354 P.2d [72 N.M. 167] 126, the right to add parties must be contingent on an appeal having been perfected. Accordingly, we proceed to a co......
-
Varney v. Taylor, 8475
...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......
-
State v. Nehemiah Child G., NO. A-1-CA-35528
...jurisdictional question is not raised by the parties is of no consequence."); William K. Warren Found. v. Barnes , 1960-NMSC-069, ¶¶ 7-8, 67 N.M. 187, 354 P.2d 126 (noting that jurisdiction cannot be conferred by the parties through waiver or consent). {15} Having concluded that Section 39-......
-
State ex rel Overton v. New Mexico State Tax Commission, 8793
...the question of jurisdiction compels an answer. State v. Morris, 69 N.M. 89, 364 P.2d 348 (1961); William K. Warren Foundation v. Barnes, 67 N.M. 187, 354 P.2d 126 (1960); Taos County Board of Education v. Sedillo, 44 N.M. 300, 101 P.2d 1027 In Sedillo, supra, we pointed out that there must......
-
Home Fire & Marine Ins. Co. v. Pan Am. Petroleum Corp., 7193
...provided by the rules is jurisdictional, Chavez v. Village of Cimarron, 65 N.M. 141, 333 P.2d 882; William K. Warren Foundation v. Barnes, 67 N.M. 187, 354 P.2d [72 N.M. 167] 126, the right to add parties must be contingent on an appeal having been perfected. Accordingly, we proceed to a co......