{
  "id": 1556037,
  "name": "ARMIJO v. PETTIT et al.",
  "name_abbreviation": "Armijo v. Pettit",
  "decision_date": "1930-02-17",
  "docket_number": "No. 3345",
  "first_page": "559",
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  "last_updated": "2023-07-14T20:51:24.898591+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "BICKLEY, C. J, and PARKER, J, concur.",
      "CATRON and SIMMS, JJ, did not participate."
    ],
    "parties": [
      "ARMIJO v. PETTIT et al."
    ],
    "opinions": [
      {
        "text": "OPINION OF THE COURT\nWATSON, J.\nA statement of the essential facts has been heretofore made. Armijo v. Pettit, 34 N. M. 43, 277 P. 21, where we denied a motion to dismiss the appeal. Since then the original appellant has died, and the appeal has been revived in the name of Nicolas T. Armijo, her executor.\nOn the merits, appellant discusses two questions:\n\u201c1. Was the question of a deficiency judgment in personam previously adjudicated against the plaintiff, and\n\u201c2. Did the court err in refusing to grant the plaintiff\u2019s third motion?\u201d\nShe contends that the adverse ruling on her first motion is not res ad judicata, because the appeal, though without supersedeas, deprived the court of jurisdiction to entertain the motion. She admits that, if the court had jurisdiction, she is here confronted with a final judgment, which will prevent success of her appeal.\nThe original \u201cfinal decree\u201d adjudged an indebtedness against the defendants, and each of them, adjudged a lien upon personal property therefor, a foreclosure of the lien, a sale by a special master, and application by him of the proceeds to the payment of the indebtedness, and concluded that\n\u201c* * * \u2020]-^ Court does hereby retain jurisdiction * * * for the purpose of hearing the report of said Master and to award any deficiency judgment in personam as against the defendants which may be necessary in the premises.\u201d\nAppellant admits that, until superseded, this judgment could be enforced, even after the taking of the appeal, up to the point of entering deficiency judgment. She denies, however, that, after the appeal, and pending receipt of mandate from this court, the lower court has jurisdiction to enter a \u201cnew judgment\u201d for the deficiency.\nThe original \u201cfinal decree\u201d remained in full force and effect, though appealed from, and appellant was at liberty, at her peril, to proceed to enforce it. Mayo v. George, 31 N. M. 593, 248 P. 885; Clark v. Rosenwald, 31 N. M. 443, 247 P. 306.\nAs we see it, appellant\u2019s motion did not ask for a new judgment, or for any modification of the judgment appealed from. It was merely a step in proper subsequent proceedings to enforce the judgment already rendered. The personal indebtedness of the defendants had already been adjudged. The amount for which execution should issue was alone left to be determined, and that by mere computation. We cannot see how the motion for entry of deficiency judgment can be considered as a new judgment, or as a modification of the original \u201cfinal decree,\u201d any more than a motion to confirm the master\u2019s report of sale should be so considered. An order of confirmation is a \u201cfinal order affecting a substantial right made after the entry of final judgment.\u201d App. Proc. Rule II, \u00a7 2, Cooper v. Brownfield, 33 N. M. 464, 269 P. 329. So, also, an order in proceedings supplementary to execution. Code 1915, \u00a7 2214; Davidson v. Conley, 34 N. M. 421, 284 P. 1020. So we must classify an order determining, after foreclosure sale, the amount of deficiency to be entered as a personal judgment.\nFloersheim v. Board of Commissioners, 28 N. M. 330, 212 P. 451, relied upon by appellant, presented a different question, and has no bearing here.\nIt seems, therefore, that the adverse ruling on the first motion, right or wrong, precluded the third motion from which this appeal is taken.\nThe judgment must be affirmed, and the cause remanded.\nIt is so ordered.\nBICKLEY, C. J, and PARKER, J, concur.\nCATRON and SIMMS, JJ, did not participate.",
        "type": "majority",
        "author": "WATSON, J."
      }
    ],
    "attorneys": [
      "Simms & Botts, of Albuquerque, for appellant.",
      "H. B. Jamison and Hanna & Wilson, all of Albuquerque, for appellees."
    ],
    "corrections": "",
    "head_matter": "[No. 3345.\nFeb. 17, 1930.]\nARMIJO v. PETTIT et al.\n[286 Pac. 827.]\nSimms & Botts, of Albuquerque, for appellant.\nH. B. Jamison and Hanna & Wilson, all of Albuquerque, for appellees."
  },
  "file_name": "0559-01",
  "first_page_order": 579,
  "last_page_order": 582
}