{ "id": 2777906, "name": "The STATE of New Mexico, on the relation of Jose M. GALLEGOS, Petitioner, v. The Honorable D. A. MACPHERSON, Jr., Judge of Division IV of the District Court of the Second Judicial District of the State of New Mexico, Respondent", "name_abbreviation": "State ex rel. Gallegos v. Macpherson", "decision_date": "1957-08-22", "docket_number": "No. 6247", "first_page": "133", "last_page": "134", "citations": [ { "type": "official", "cite": "63 N.M. 133" }, { "type": "parallel", "cite": "314 P.2d 891" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "47 N.M. 356", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1562255 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/47/0356-01" ] }, { "cite": "46 N.M. 330", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563041 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/46/0330-01" ] }, { "cite": "58 N.M. 296", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587560 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/58/0296-01" ] }, { "cite": "56 N.M. 667", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584735 ], "weight": 2, "pin_cites": [ { "page": "666" } ], "opinion_index": 0, "case_paths": [ "/nm/56/0667-01" ] } ], "analysis": { "cardinality": 248, "char_count": 3087, "ocr_confidence": 0.707, "pagerank": { "raw": 8.138363859351185e-08, "percentile": 0.47122554249301796 }, "sha256": "ff504fa7fc9a82bfea58b7797bab13ffe5c1445c3e4d08411b911513f2e96830", "simhash": "1:1a7620b5c4a97775", "word_count": 530 }, "last_updated": "2023-07-14T17:04:51.657225+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LUJAN, C. J., and SADLER, COMPTON and KIKER, JJ., concur." ], "parties": [ "The STATE of New Mexico, on the relation of Jose M. GALLEGOS, Petitioner, v. The Honorable D. A. MACPHERSON, Jr., Judge of Division IV of the District Court of the Second Judicial District of the State of New Mexico, Respondent." ], "opinions": [ { "text": "McGHEE, Justice.\nThis is an original proceeding for writ of mandamus on the relation of Jose M. Gallegos against the Honorable D. A. Macpherson, Jr., a District Judge of the Second Judicial District.\nPetitioner filed his claim for workmen\u2019s compensation against the City of Albuquerque on August 12, 1955. On June 5, 1956, the jury\u2019s verdict found the issues in favor of the Petitioner and judgment in accordance therewith was filed on June 21, 1956. The Respondent, City of Albuquerque filed a motion for a new trial on June 28, 1956, which was subsequently argued, and on September 19, 1956, the court granted a new trial on the grounds that the verdict was excessive. \u2022 On petition an Alternative Writ of Mandamus was issued by this Court directing the order be vacated or that Respondent show cause at a stated time why he had not done so.\nRelator argues that mandamus should issue on the theory that under the Workmen\u2019s Compensation Act the trial judge does not have power to entertain a motion for or grant a new trial where the jury has resolved questions of fact.\nWe stated in Cienfuegos v. Pacheco, 56 N.M. 667, 248 P.2d 664, 666, that:\n\u201cIt has long been well established in New Mexico that the granting of a new trial rests within the discretion of the trial court and will be reviewed only for a clear abuse of that discretion.\u201d\nThere are circumstances in which the granting of a new trial is an abuse of discretion and reviewable by mandamus. See, State ex rel. Cardenas v. Swope, 58 N.M. 296, 270 P.2d 708, where change of venue was in question and refusal of mandamus would have necessitated an additional trial calling for reversal and then a subsequent trial. See, also, Hudson v. Herschbach Drilling Co., 46 N.M. 330, 128 P.2d 1044.\nThe instant case does not involve such circumstances. We pointed out in Elsea v. Broome Furniture Company, 47 N.M. 356, 143 P.2d 572, a workmen\u2019s compensation case, that a new trial is a matter within the court\u2019s discretion. ' Further, our decision here is controlled by Battersby v. Macpherson, Jr., No. 6212, in which the circumstances were almost identical with those of the instant case. There, the relator sought by writ of prohibition to restrain the district judge from granting a new trial in a workmen\u2019s compensation action on the same grounds, lack of jurisdiction under the act, as raised in this case. We sustained a motion to dismiss. Under these facts, where prohibition will not lie, mandamus will not lie.\nThe Alternative Writ was improvidently issued and it will be quashed.\nIt is so ordered.\nLUJAN, C. J., and SADLER, COMPTON and KIKER, JJ., concur.", "type": "majority", "author": "McGHEE, Justice." } ], "attorneys": [ "Lorenzo A. Chavez, Arturo G. Ortega, Melvin L. Robins, Albuquerque, for petitioner.", "Frank L. Horan, Malcolm W. deVesty, Paul F. Henderson, Jr., Albuquerque, for respondent." ], "corrections": "", "head_matter": "314 P.2d 891\nThe STATE of New Mexico, on the relation of Jose M. GALLEGOS, Petitioner, v. The Honorable D. A. MACPHERSON, Jr., Judge of Division IV of the District Court of the Second Judicial District of the State of New Mexico, Respondent.\nNo. 6247.\nSupreme Court of New Mexico.\nAug. 22, 1957.\nLorenzo A. Chavez, Arturo G. Ortega, Melvin L. Robins, Albuquerque, for petitioner.\nFrank L. Horan, Malcolm W. deVesty, Paul F. Henderson, Jr., Albuquerque, for respondent." }, "file_name": "0133-01", "first_page_order": 165, "last_page_order": 166 }