{ "id": 2797774, "name": "Heyward SCOTT and Teresa D. Scott, Pialntiffs-Appellees, v. Robert N. NEWSOM, Ralph Pool, d/b/a Albuquerque Auto Sales, and Albuquerque Auto Sales, Inc., a New Mexico Corporation, Defendants-Appellants; ALBUQUERQUE AUTO SALES, INC., Intervenor-Appellant, v. Heyward SCOTT and Teresa D. Scott, New Party Defendants-Appellees", "name_abbreviation": "Scott v. Newsom", "decision_date": "1964-07-20", "docket_number": "No. 7415", "first_page": "399", "last_page": "406", "citations": [ { "type": "official", "cite": "74 N.M. 399" }, { "type": "parallel", "cite": "394 P.2d 253" } ], "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": "72 N.M. 163", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2855241 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/72/0163-01" ] }, { "cite": "54 N.M. 296", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582008 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/54/0296-01" ] }, { "cite": "31 F.Supp. 32", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4191295 ], "opinion_index": 0, "case_paths": [ "/f-supp/31/0032-01" ] }, { "cite": "323 U.S. 574", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1229661 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/323/0574-01" ] }, { "cite": "5 F.R.D. 230", "category": "reporters:specialty", "reporter": "F.R.D.", "case_ids": [ 3756877 ], "year": 1945, "opinion_index": 0, "case_paths": [ "/frd/5/0230-01" ] }, { "cite": "200 P. 422", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "27 N.M. 282", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841978 ], "opinion_index": 0, "case_paths": [ "/nm/27/0282-01" ] }, { "cite": "234 P. 1012", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "30 N.M. 424", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8842049 ], "opinion_index": 0, "case_paths": [ "/nm/30/0424-01" ] }, { "cite": "31 N.M. 427", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1551460 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/31/0427-01" ] }, { "cite": "39 N.M. 454", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573416 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/39/0454-01" ] }, { "cite": "111 F.Supp. 150", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 303259 ], "opinion_index": 0, "case_paths": [ "/f-supp/111/0150-01" ] }, { "cite": "14 F.R.D. 507", "category": "reporters:specialty", "reporter": "F.R.D.", "case_ids": [ 3771475 ], "opinion_index": 0, "case_paths": [ "/frd/14/0507-01" ] }, { "cite": "190 F.Supp. 880", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 1426846 ], "opinion_index": 0, "case_paths": [ "/f-supp/190/0880-01" ] }, { "cite": "67 N.M. 283", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2715317 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/67/0283-01" ] }, { "cite": "74 N.M. 45", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2799620 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/74/0045-01" ] }, { "cite": "70 N.M. 432", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2851505 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/70/0432-01" ] }, { "cite": "365 P.2d 910", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2790720 ], "opinion_index": 0, "case_paths": [ "/nm/69/0259-02" ] }, { "cite": "69 N.M. 259", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2791096, 2790720 ], "opinion_index": 0, "case_paths": [ "/nm/69/0259-01", "/nm/69/0259-02" ] }, { "cite": "68 N.M. 446", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2719808 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/68/0446-01" ] }, { "cite": "67 N.M. 187", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2714678 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/67/0187-01" ] }, { "cite": "65 N.M. 185", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2845339 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/65/0185-01" ] }, { "cite": "65 N.M. 141", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2848280 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/65/0141-01" ] } ], "analysis": { "cardinality": 740, "char_count": 15716, "ocr_confidence": 0.68, "pagerank": { "raw": 2.2694457919087568e-07, "percentile": 0.7835935608601119 }, "sha256": "a43d2452af5bccb3437c3433acdb327bca307e69d6b7365d02c4ab405b195bbe", "simhash": "1:2f63ee66af2ca58e", "word_count": 2593 }, "last_updated": "2023-07-14T17:26:44.283414+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CARMODY and NOBLE, JJ., concur." ], "parties": [ "Heyward SCOTT and Teresa D. Scott, Pialntiffs-Appellees, v. Robert N. NEWSOM, Ralph Pool, d/b/a Albuquerque Auto Sales, and Albuquerque Auto Sales, Inc., a New Mexico Corporation, Defendants-Appellants. ALBUQUERQUE AUTO SALES, INC., Intervenor-Appellant, v. Heyward SCOTT and Teresa D. Scott, New Party Defendants-Appellees." ], "opinions": [ { "text": "CHAVEZ, Justice.\nOn June 3, 1959, plaintiff Heyward Scott filed a complaint in two counts against \u201cRalph Poole, d/b/a Albuquerque Auto Sales.\u201d The first count was for breach of warranty in that the defendant warranted that said automobile was free from defects in material and workmanship, whereas said vehicle turned out to be defective. The second count alleged that the defendant fraudulently represented that the automobile purchased was a road-tested car. On July 31, 1959, Albuquerque Auto Sales, Inc. filed a petition to intervene which was allowed and, on the same date, intervenor filed a complaint against Heyward Scott and Teresa D. Scott for deficiency on a note resulting from repossession of the automobile which was the subject matter of plaintiff Heyward Scott\u2019s complaint.\nOn July 31, 1959, Ralph Pool answered plaintiff\u2019s complaint, alleging that he was not a proper party defendant for the reason that the automobile in question was sold to plaintiff and his wife by Albuquerque Auto-Sales, Inc., a New Mexico corporation, and prayed that the cause he dismissed as to him.\nUpon motion of intervenor, an order was entered on July 31, 1959, making Teresa D. Scott a new party defendant and allowing the filing of intervenor\u2019s claim. On September 11, 1959, Albuquerque Auto Sales, Inc. filed an answer to the counterclaim of new party defendant Teresa D. Scott. The counterclaim thus answered was filed on January 19, 1961.\nOn November 28, 1960, Albuquerque Auto Sales, Inc. filed a supplemental complaint realleging all matters set out in the original complaint and alleging the sale of the automobile, the cost of reconditioning said automobile, the cost of publication, and praying judgment in the sum of $1,430.39.\nOn January 19, 1961, new party defendant Teresa D. Scott filed an answer and counterclaim to the complaint of intervenor Albuquerque Auto Sales, Inc. On January 19, 1961, plaintiff Heyward Scott also filed a reply to defendant\u2019s counterclaim.\nTrial was held on January 19, 1961, but no decision was rendered.\nOn April 19, 1961, plaintiffs\u2019 attorney was permitted to withdraw as attorney and on July 24, 1961, Judge Paul Tackett recused himself from hearing the cause.\nOn July 24, 1961, Heyward Scott filed a petition requesting a jury trial and asked that the original complaint be amended to-read \u201cfraud\u201d instead of \u201cdamages.\u201d\nOn September 18, 1961, Judge Paul F. Larrazolo recused himself from this cause.\nOn April 12, 1962, J. Victor Pongetti entered his appearance as attorney for plaintiff and new party defendant and, in his motion for leave to amend complaint, alleged that the automobile in question was purchased by plaintiff and his wife, Teresa D. Scott, and that said wife should be included as a party plaintiff; and that the sellers of the automobile, Albuquerque Auto Sales, Inc., and Robert N. Newsom as salesman, should be added as defendants in the first amended complaint. Plaintiffs, on April 12, 1962, also filed a first amended complaint containing four causes of action as follows: (1) For breach of warranty in that defendants warranted that the automobile was free from defects in material and workmanship, whereas it turned out to be defective; (2) fraudulent representation that the car was a road-tested car and praying for rescission of the contract and for damages; (3) fraudulent representations and breach of warranty in that defendants represented and warranted that said automobile was new and unused; and (4) action for damages, resulting from the false and fraudulent representations.\nOn July 12, 1962, defendants and intervenor filed an answer to the first amended complaint.\nOn November 13, 1962, trial was had before the .Hon. Robert W. Reidy, district judge. At the beginning of the trial, counsel for defendants requested that -the third defense set up in the answer to the first amended complaint be disposed of. ' Plaintiffs\u2019 attorney then stated that they would \u201cWaive the rescission of the contract.\u201d Thereafter the trial proceeded'.\u2019'\nOn November 19, 1962, plaintiffs, filed a motion to reconsider the ruling of the trial court requiring plaintiffs to elect their remedy between breach of .contract and rescission. Thereafter,, the trial. court advised counsel for the parties that he had reconsidered his ruling and was going to base his decision upon rescission. Judgment was entered on March 29, 1963, for plaintiffs and against defendants, Robert N. Newsom and Albuquerque Auto Sales, Inc., in the sum of $847.00 plus costs, and the \u201csupplemental complaint by intervenor\u201d was dismissed.\nMotion to reconsider the ruling of the court and, in the alternative, for a new trial was denied. The parties filed requested findings of fact and conclusions of law and the trial court filed its findings of fact and conclusions of law. On April 3, 1963, notice of appeal was filed by Ralph Pool\u2019s Albuquerque Auto Sales, Inc. and Robert N. Newsom.\nIn -the light of the record, we must first decide whether this court has jurisdiction to consider this appeal.\nThe notice of appeal filed on April 3, 1963, appears to be in conformity with Supreme Court Rule 5(5) (\u00a7 21-2-1(5), N.M. S.A., 1963 Supp.), which provides that:\n\u201cAppeals,' as .provided by law, shall be taken .by filing a notice of appeal with \u25a0 the district court in which the judgment or order, appealed from is rendered.- * * * \u201d\nThe above rule prescribed a different method for the taking'of an appeal from the district courts, and applied to cases filed in the district courts on and after March 15, 1961. Formerly appeals as provided by law were:\n\u201c * * * allowed upon written application to and the order of the district court in which the judgment is rendered.\u201d\nAppellants filed their \u201cNotice of Appeal\u201d on April 3, 1963. The record fails to show that written application was made to the district court for an order allowing the appeal and no order allowing the appeal appears in the record. It is clearly established, under the appellate practice prior to the amendment, that the timely entry of an order allowing the appeal is jurisdictional. Chavez v. Village of Cimarron, 65 N.M. 141, 333 P.2d 882; Public Service Company of New Mexico v. First Judicial District Court, 65 N.M. 185, 334 P.2d 713; William K. Warren Foundation v. Barnes, 67 N.M. 187, 354 P.2d 126; Adams v. Tatsch, 68 N.M. 446, 362 P.2d 984; Driver-Miller Corporation v. Liberty, 69 N.M. 259, 365 P.2d 910. See also, Miller v. Doe, 70 N.M. 432, 374 P.2d 305.\nIn Reed v. Fish Engineering Corporation, 74 N.M. 45, 390 P.2d 283, we noted that the appeal was effected by motion, order of the court allowing the appeal, and notice. We stated that:\n\u201c * * * As to all cases filed on and after March 15, 1961, Supreme Court Rule 5(5) (\u00a721-2-1(5) (5), N.M. S.A. 1953) provides that appeals \u2018shall be taken by filing a notice of appeal\u2019 which notice \u2018shall specify the parties taking the appeal and shall designate the judgment, order or part thereof appealed from.\u2019 * * * \u201d\nIn Reed, the case was filed after March 15, 1961, and the above quoted rule applied. We held that:\n\u201c * * * the motion for appeal and order allowing the same were ineffective to accomplish an appeal of the case. However, the notice filed and served within 30 days, while stating that an order had been entered allowing the appeal, nevertheless specified that '\u2022plaintiff was the one taking the appeal, and that the judgment entered in the cause against the plaintiff was the judgment being appealed. There being but one plaintiff and one judgment, we find a sufficient compliance with the rule.\nAppellants contend that the essential elements of jurisdiction of the district court did not occur as to Albuquerque Auto Sales, Inc. and Robert N. Newsom until April 12, 1962, when the amended complaint was filed. Having reviewed the record, we hold that, as to Albuquerque Auto Sales, Inc., this contention is without merit. The record discloses that, as to the intervenor Albuquerque Auto Sales, Inc., the claim for relief was pending long prior to March 15, 1961. Compare, Callaway v. Ryan, 67 N.M. 283, 354 P.2d 999.\nIt is contended by appellants that this appeal comes under the rule as amended March 15, 1961, because the amended complaint also names Robert N. Newsom, the salesman working for Albuquerque Auto Sales, Inc., as an additional party defendant, and that a complaint bringing in new parties constitutes the bringing of a new action.\nIn support of this contention, appellants cite Robbins v. Esso Shipping Company (D.C.S.D.N.Y.1960), 190 F.Supp. 880; Messelt v. Security Storage Co. (D.C.D. Del.1953), 14 F.R.D. 507; Kerner v. Rackmill (D.C.M.D.Pa.1953), 111 F.Supp. 150. These cases stand for the proposition that an amendment bringing in new parties, as contrasted with one correcting a misnomer of a party already before, the .court, does not relate back in time to the filing of the original complaint, but is akin to the institution of a new action against the new parties.\nIn Lea County State Bank v. McCaskey Register Co., 39 N.M. 454, 49 P.2d 577, regarding the question of appeal from a justice of the peace court to the district court, we said:\n\u201cThe word \u2018appeal\u2019 when accurately used in law matters means the removal of a cause from the inferior to a superior court. * * * \u201d\nIn Burch et al. v. Ortiz, 31 N.M. 427, 246 P. 908, on the question of interpretation of \u00a7 34-422, et seq., 1929 Comp, (now \u00a7 16-4 \u2014 19, N.M.S.A., 1953 Comp.), a statute authorizing an optional appeal from probate court, we held that \u201cappeal\u201d was used in the sense of the removal of the whole cause from the inferior to a superior court. State ex rel. Burg v. City of Albuquerque, 30 N.M. 424, 234 P. 1012.\nIn State v. Lazarovich, 27 N.M. 282, 200 P. 422, we defined \u201ccause\u201d as:\n\u201c * * * a suit, litigation, or action of any kind, civil or criminal, contested before a court of justice. * * * \u201d\nWe hold that the word \u201cappeal\u201d as used in Supreme Court Rule 5(5), supra, means the removal of the suit, litigation, or action, from the inferior to a superior court.\nIt therefore follows that since it is the cause, suit, litigation, or action that is removed to this court upon appeal, the parties being incidental, that Robert N. Newsom will take the appeal as he finds it and, if the appeal or cause is untimely filed, it should be dismissed as to both parties.\nIn this connection, appellants contend that appellees\u2019 amended complaint filed April 12, 1962, superseded the original complaint and that the original complaint is considered abandoned. In the amended complaint, appellees realleged counts one and two of the original complaint. The third cause of action alleged that Robert N. Newsom, as salesman for Albuquerque Auto Sales, Inc., offered the automobile in question for sale and that both Robert N. Newsom and Albuquerque Auto Sales, Inc. represented and warranted that said automobile was new and had not been previously used; that appellees discovered that said automobile had been used prior to the sale to them; and that they immediately offered to return said automobile and demanded the return of the money paid for said car. The fourth cause of action is for damages resulting from the false and fraudulent representations.\nTo the amended complaint, appellants repleaded all defenses set up in their answer to the first and second causes of action contained in the original complaint. Appellants denied the allegations contained in the third and fourth causes of action.\nAs we view the allegations of the various pleadings and the amended complaint, all of the claims or defenses presented arose out of the conduct, occurrences or transactions set forth, or attempted to be set forth, in the original complaint involving the purchase and sale of the automobile in question on November 1, 1958.\nRule 15(c) (\u00a7 21-1-1(15) (c), N.M.S.A., 1953 Comp.) provides:\n\u201cWhenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.\u201d\nBarron and Holtzoff, Federal Practice and Procedure, Vol. 1A, \u00a7 448, p. 757, states the rule as follows:\n\u201cThe general rule of \u2018relation back\u2019 is that a pleading may not be amended to allege a new or different claim or defense unless it arose out of, or is based upon or related to,. the claim, transaction or occurrence originally set forth or attempted to be set forth. * * *\u00bb\nFundamentally, the general wrong suffered and the general conduct causing the wrong are the controlling considerations. Bowles v. Tankar Gas (D.C.D.Minn.1946), 5 F.R.D. 230; Tiller v. Atlantic Coast Line Railroad Co. (1945), 323 U.S. 574 65 S.Ct. 421, 89 L.Ed. 465.\nThe specified conduct of the defendant, upon which the plaintiff relies to enforce his claim, is to be examined rather than the theory of law upon which the action is brought. Moore\u2019s Federal Practice, Vol. 3, \u00a7 15.15, pp. 850-856; White v. Holland Furnace Co. (D.C.S.D.Ohio 1939), 31 F.Supp. 32.\nIn connection with Rule 15(c), Barron and Holtzoff, supra, at pp. 767-768, makes this statement:\n\u201cUnfortunately many of the decisions on these questions persist in speaking in terms of \u2018cause of action\u2019 instead of \u2018claim for relief\u2019. The rules nowhere make use of the term \u2018clause [sic] of action\u2019. The reasons are obvious. The term itself is \u2018so elusive of definition and the results achieved by the courts so varied, often at the expense of justice, that it can hardly, be mere chance that the new rules attempted to establish a new test.\u2019\n\u201c \u2018In the stretching, hauling and pulling to which the phrase has been subjected it * * * lacks unity of signification.\u2019\n\u201cThe rules require only that a \u2018claim for relief\u2019, not \u2018a cause of action\u2019, be pleaded, i. e. the transaction or occurrence, the wrong for which relief is claimed, the aggregate of operative facts, better describe the flexible scope, the operative area of the court\u2019s determination of rights and liabilities between the parties.- These are -the things which must be brought to the defendant's notice by the complaint. Every party to that transaction or -occurrence and every defense, counterclaim or cross-claim may be brought in and examined by the court having jurisdiction of the action.\u201d\nWe find nothing in Newbold v. Florance, 54 N.M. 296, 222 P.2d 1085, cited by appellants, which is contrary to the principles above discussed.-\u2022 This--contention of appellants is without merit.\nWe should also state that we have considered the argument and brief filed by amicus curiae and find that the contentions made therein are directly contrary to our holding in Miller v. Doe, supra. Our decision in Miller is controlling and is sufficient answer to the argument presented by amicus curiae. We have repeatedly held that compliance with the applicable rules in perfecting an appeal is a jurisdictional requirement. Home Fire and Marine Insurance Company v. Pan American Petroleum Corporation, 72 N.M. 163, 381 P.2d 675.\nWe hold as to both appellants, Albuquerque Auto Sales, Inc. and Robert N. Newsom, that this court lacks jurisdiction to consider their appeal and the appeal should be dismissed.\nIt is so ordered.\nCARMODY and NOBLE, JJ., concur.", "type": "majority", "author": "CHAVEZ, Justice." } ], "attorneys": [ "Key & May, Albuquerque, for appellants.", "Adams & Pongetti, Albuquerque, for appellees." ], "corrections": "", "head_matter": "394 P.2d 253\nHeyward SCOTT and Teresa D. Scott, Pialntiffs-Appellees, v. Robert N. NEWSOM, Ralph Pool, d/b/a Albuquerque Auto Sales, and Albuquerque Auto Sales, Inc., a New Mexico Corporation, Defendants-Appellants. ALBUQUERQUE AUTO SALES, INC., Intervenor-Appellant, v. Heyward SCOTT and Teresa D. Scott, New Party Defendants-Appellees.\nNo. 7415.\nSupreme Court of New Mexico.\nJuly 20, 1964.\nKey & May, Albuquerque, for appellants.\nAdams & Pongetti, Albuquerque, for appellees." }, "file_name": "0399-01", "first_page_order": 451, "last_page_order": 458 }