{ "id": 2855529, "name": "W. S. STARNES, Plaintiff-Appellant, v. Ruby E. STARNES and Yavonne Starnes, Defendants-Appellees", "name_abbreviation": "Starnes v. Starnes", "decision_date": "1963-04-22", "docket_number": "No. 7123", "first_page": "142", "last_page": "145", "citations": [ { "type": "official", "cite": "72 N.M. 142" }, { "type": "parallel", "cite": "381 P.2d 423" } ], "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": "67 N.M. 219", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2715243 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/67/0219-01" ] }, { "cite": "35 N.M. 205", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557949 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/35/0205-01" ] }, { "cite": "365 P.2d 931", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2786777 ], "opinion_index": 0, "case_paths": [ "/nm/69/0291-01" ] }, { "cite": "69 N.M. 291", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2786777, 2789909 ], "opinion_index": 0, "case_paths": [ "/nm/69/0291-01", "/nm/69/0291-02" ] } ], "analysis": { "cardinality": 403, "char_count": 6744, "ocr_confidence": 0.684, "pagerank": { "raw": 1.45002230089953e-07, "percentile": 0.6548545880474113 }, "sha256": "6965e9940ba238c3430cb89300b680fc1017a67a67bddfd1b4aa2390f82c7871", "simhash": "1:137c192651ca7d7b", "word_count": 1133 }, "last_updated": "2023-07-14T21:27:49.886466+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CHAVEZ and NOBLE, JJ., concur." ], "parties": [ "W. S. STARNES, Plaintiff-Appellant, v. Ruby E. STARNES and Yavonne Starnes, Defendants-Appellees." ], "opinions": [ { "text": "MOISE, Justice.\nAfter default judgment had been entered in this cause on August 10, 1961, the defendants moved on September 19, 1961, that the judgment be vacated so as to permit the defendants to answer. On October 17, 1961, the date set for hearing on the motion to vacate, the trial judge refused to hear the witnesses which plaintiff had present to testify, and indicated that he would grant the motion and vacate the judgment.\nPlaintiff, on October 18, 1961, obtained from this court an alternative writ prohibiting the judge from proceeding further with the case and ordering him to show cause on November 6, 1961, why the order should not be made permanent. After hearing on that date, the writ was made permanent. State ex rel. Starnes v. Second Judicial District Court, 69 N.M. 291, 365 P.2d 931. The original order stated that this was done because it appeared that the trial court \u201cproposed to vacate and set aside said judgment of August 10, 1961, without good cause shown. * * *\u201d\nThereafter, counsel for defendants gave notice of a hearing on the motion to vacate the judgment to be held on November 13, 1961, at which time all parties would be given an opportunity to present evidence and arguments. A hearing was held on November 27, 1961, at which counsel for plaintiff was present but refused to participate. It was the position of plaintiff that the writ having been made permanent, the court was without jurisdiction to consider the motion to vacate the judgment.\nDefendants took the position, and the court agreed, that the only action prohibited by the permanent writ was the setting aside of the judgment without record showing of good cause. Thereupon, witnesses were produced by the defendants. They were sworn and testified. After hearing defendants\u2019 witnesses, the court announced that the default judgment would be set aside. Accordingly, on November 28, 1961, an order was entered reciting the proceedings, finding \u201cthat the default judgment heretofore entered in this cause should be set aside,\u201d ordering the judgment \u201cset aside and held for naught,\u201d and stating that the transcript of judgment filed with the county-clerk was \u201cretracted and held for naught.\u201d\nPlaintiff has perfected this appeal from the order of November 28, 1961. Defendants have moved in this court to dismiss the appeal on the ground that the order appealed from is not a \u201cfinal judgment in any civil action\u201d and accordingly, not appealable under Supreme Court Rule 5(1) (\u00a7 21-2-1(5) (1), N.M.S.A.1953). This motion was denied by this court with leave to renew it when the case was submitted on its merits. The motion is now before us for disposition.\n\u2022' Supreme Court Rule 5(1) (\u00a7 21-2-1(5) \u2022(.1), N;M.S.A.1953) provides that \u201cWithin \u2022thirty-[30] days from the entry of any final 'judgment in any civil action any party aggrieved may appeal therefrom to the Supreme Court * * Supreme Court Rule 5(2) (\u00a721-2-1(5) (2), N.M.S.A.1953) ,is relied on by plaintiff and provides that \u201c * * * Appeals shall also be * * * entertained by the Supreme Court, from all final orders affecting a substantial right .made after the entry of final judgment.\u201d\nThe exact question here presented was - considered by this court. in Singleton v. Sanabrea, 35 N.M. 205, 292 P. 6, and decided contrary to the position of defendants. \u2018 The controlling portion of the rule has -remained-unchanged since the date of that decision, and this Court has consistently considered appeals from orders entered vacating judgments previously entered so as to permit new pleadings or trials. These cases are reviewed and discussed in Scott v. J. C. Penney Co., 67 N.M. 219, 354 P.2d 147. No convincing reason for departing from our holdings in those cases has been advanced, and accordingly we adhere to them, and the motion to dismiss is overruled.\nThe merits of the controversy can likewise be disposed of without too much discussion. Whereas the language of our alternative writ and the order making the same permanent may leave something to be desired so far as clarity and certainty are concerned, there is no question in our minds, and there should have been none in the mind of plaintiff\u2019s counsel, that the writ was issued to prevent damage to plaintiff through the court acting in excess of its 'jurisdiction in vacating a default judgment without a showing - of compliance with \u00a7 21-1-1(55) (c), N.M.S.A.1953 or \u00a7 21-1-1 (60) (b), N.M.S.A.1953. By his petition for a writ, it is clear that plaintiff was complaining that the trial court had refused to consider the proof which plaintiff tendered to establish that the default judgment should not be vacated. Now, because of the broad and general terms of the writ, .plaintiff would abandon his original position and upon the trial court granting a full hearing, would have us hold that the trial court could under no circumstances consider the motion to vacate and grant relief to defendants. Certainly, there could have been no intention by this court to suspend the operation of \u00a7 21-1-1(55) (c), N.M.S.A. 1953, nor of \u00a7 21-1-1(60) (b), N.M.S.A. 1953. Plaintiff had no right to ask us to do so, and he did not so represent his position. He should not now be heard to complain when the court is proceeding to do the things previously urged by plaintiff. Plaintiff\u2019s complaint on the appeal is without merit.\nPlaintiff reserved a point on this appeal to the effect that the order vacating judgment was entered without \u201cgood cause shown.\u201d However, he does not point out in his argument why this is true. The court heard evidence that the defendants were not served with process, being absent from their usual place of abode, and that they had no knowledge of the suit until long after judgment was entered. Plaintiff asserts that defendants\u2019 testimony should not be believed. No findings were made by the court except the general one that the judgment should be set aside. Under the circumstances, we cannot say that there has been an abuse of discretion. We do not propose to become the triers of the facts.\n' It appears to us that plaintiff got what he 'wanted \u2014 a hearing on the question of whether the judgment should be vacated, and then refused to participate or accept the outcome. He is not in a position to complain here.\nFor the reasons stated, the order appealed from is affirmed and the cause is remanded with instructions to proceed with cause to its final disposition.\nIt is so ordered.\nCHAVEZ and NOBLE, JJ., concur.", "type": "majority", "author": "MOISE, Justice." } ], "attorneys": [ "Harry O. Morris, Albuquerque, for appellant.", "R. F. Deacon Arledge, Albuquerque, for appellees." ], "corrections": "", "head_matter": "381 P.2d 423\nW. S. STARNES, Plaintiff-Appellant, v. Ruby E. STARNES and Yavonne Starnes, Defendants-Appellees.\nNo. 7123.\nSupreme Court of New Mexico.\nApril 22, 1963.\nRehearing Denied May 27, 1963.\nHarry O. Morris, Albuquerque, for appellant.\nR. F. Deacon Arledge, Albuquerque, for appellees." }, "file_name": "0142-01", "first_page_order": 174, "last_page_order": 177 }