{ "id": 5335492, "name": "SOUTHERN UNION GAS COMPANY, a corporation, Plaintiff-Appellee, v. William H. TAYLOR and Jutta Taylor, Defendants-Appellants", "name_abbreviation": "Southern Union Gas Co. v. Taylor", "decision_date": "1971-06-07", "docket_number": "No. 9212", "first_page": "670", "last_page": "672", "citations": [ { "type": "official", "cite": "82 N.M. 670" }, { "type": "parallel", "cite": "486 P.2d 606" } ], "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": "74 N.M. 271", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2805629 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/74/0271-01" ] }, { "cite": "75 N.M. 550", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5378166 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/nm/75/0550-01" ] }, { "cite": "79 N.M. 281", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2742645 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0281-01" ] }, { "cite": "77 N.M. 121", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2803228 ], "weight": 3, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0121-01" ] }, { "cite": "21 P. 343", "category": "reporters:state_regional", "reporter": "P.", "year": 1889, "opinion_index": 0 }, { "cite": "5 N.M. 289", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 3624697 ], "year": 1889, "opinion_index": 0, "case_paths": [ "/nm/5/0289-01" ] }, { "cite": "137 P. 597", "category": "reporters:state_regional", "reporter": "P.", "year": 1913, "opinion_index": 0 }, { "cite": "18 N.M. 314", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4692908 ], "year": 1913, "opinion_index": 0, "case_paths": [ "/nm/18/0314-01" ] }, { "cite": "48 N.M. 1", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1560809 ], "weight": 2, "year": 1943, "opinion_index": 0, "case_paths": [ "/nm/48/0001-01" ] }, { "cite": "181 P. 428", "category": "reporters:state_regional", "reporter": "P.", "year": 1919, "opinion_index": 0 }, { "cite": "25 N.M. 260", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4734716 ], "year": 1919, "opinion_index": 0, "case_paths": [ "/nm/25/0260-01" ] } ], "analysis": { "cardinality": 494, "char_count": 7706, "ocr_confidence": 0.683, "pagerank": { "raw": 2.339196353343632e-07, "percentile": 0.7919776403952509 }, "sha256": "b914f50f8fe113197e2bbb5693175aa2bb01a1e2337966ceb1c52e58098d9150", "simhash": "1:3bdf9d6340ed5973", "word_count": 1300 }, "last_updated": "2023-07-14T17:16:32.756560+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "COMPTON, C. J., and TACKETT, J., concur." ], "parties": [ "SOUTHERN UNION GAS COMPANY, a corporation, Plaintiff-Appellee, v. William H. TAYLOR and Jutta Taylor, Defendants-Appellants." ], "opinions": [ { "text": "OPINION\nOMAN, Justice.\nThis suit was brought in the Magistrate Court of Bernalillo County to recover the final four installments due on a \u201cRetail Installment Contract\u201d under which plaintiff sold and installed a used circulating heater in defendants\u2019 home. Defendants counterclaimed. The magistrate found the issue in favor of defendants and entered judgment against plaintiff on its claim and for defendants on their counterclaim. Plaintiff appealed to the district court. Appeals from the magistrate court to the district court are determined by trial dc novo in the district court. Sections 36-15-3 (A) (C), 36-15-4 and 36-21-42(g), N.M.S.A. 1953 (Repl.Vol. 6, 1964, Supp.1969).\nThe district court entered summary judgment for plaintiff, and defendant, William H. Taylor, has appealed to this court. We affirm.\nAppellant asserts three separate points upon which he relies for reversal. By his first point he claims \u201cTHE TRIAL COURT ERRED IN OVERTURNING JUDGMENT OF LOWER COURT WITHOUT REVIEW.\u201d There is no merit to this contention. There is nothing to show the trial court failed to consider the matters he was required to consider by District Court Rule 56(c) [\u00a7 21-1-1(56) (c), N.M.S.A.1953 (Repl.Vol. 4, 1970)]. If appellant is trying to urge that findings made by the magistrate court, which were incorporated in the judgment of that court, raised issues of fact which precluded the district court from properly entering a summary judgment, he is in error. No claim is made that the district court was precluded from or in any way limited in proceeding under the Rules of Civil Procedure for the District Courts, and particularly under Rule 56 [\u00a7 21-1-1(56), N.M.S.A.1953 (Repl.Vol. 4, 1970)]. Although appellant has made no reference thereto, \u00a7 36-15-3(A), supra, does provide:\n\u201cAppeals from the magistrate court shall be determined by trial de novo in the district court, and all laws, rules and regulations governing the magistrate court shall govern the trial in the district court.\u201d\nA similar statutory provision concerning appeals from a justice court to the district court was considered in Pointer v. Lewis, 25 N.M. 260, 181 P. 428 (1919), wherein it was held the district court in a trial de novo may render its independent judgment even in cases involving the discretion of the justice court, and, when a case is tried anew on appeal in the district court, judgment may be rendered by the district court as if the case had originated in that court. See also Reece v. Montano, 48 N.M. 1, 144 P.2d 461 (1943); State v. Coats, 18 N.M. 314, 137 P. 597 (1913).\nAs above shown, our statutes expressly provide appeals from a magistrate court to the district court shall be determined by trial de novo. We consider this to mean \u201canew,\u201d as did this court in Pointer v. Lewis, supra. See also, Lewis v. Baca, 5 N.M. 289, 21 P. 343 (1889). This view is in accord with Black\u2019s Law Dictionary at 1677 (4th Ed. 1951), wherein \u201ctrial de novo\u201d is defined as: \u201cA new trial or retrial had in an appellate court in which the whole case is gone into as if no trial whatever had been had in the court below.\u201d\nIf the district court were in any way bound by the findings of the magistrate court, it would not be a trial de novo, or a trial anew.\nUnder his second point, appellant claims. \u201cTPIE TRIAL COURT ERRED IN GRANTING * * * SUMMARY JUDGMENT AS A MATTER OF LAW ON THE GROUND OF LACHES.\u201d His. argument apparently is that the trial court must have relied upon the doctrine of laches, since the lapse of time here in question-was less than the statutory limitation period ; laches cannot be predicated solely upon a lapse of time; there was nothing but a lapse of time before the trial court to support laches; and, consequently, the trial' court erred in granting the summary judgment.\nThe pertinent facts, established by the record, and very largely by an affidavit in support of the motion for summary judgment, and which are in no way controverted, are as follows:\nAppellant paid 32 of the 36 monthly installments under the contract. The first notice by him to appellee of his claims that the heater was inadequate and improperly installed was given by his answer to appellee\u2019s complaint filed in the magistrate court seeking recovery of the remaining four installments, and this was three years and ten days after installation of the heater. If the heater or its installation failed in any respect to comply with the contract, it was. appellant\u2019s duty to reject the same within a reasonable time after the installation and after reasonable opportunity for inspection. Sections 50A-2-602 and 606, N.M.S.A.1953 (Repl.Vol. 8, pt. 1, 1962); Woods v. Van Wallis Trailer Sales Company, 77 N.M. 121, 419 P.2d 964 (1966).\nIt appears from the record that appellant claimed a failure of performance by the heater from the date of installation, and at some time he removed it from his home and stored it in his garage. In his reply brief he states he \u201cnever used the heater more than a few days,\u201d and that he took it down and stored it in a weatherproof outbuilding. In spite of this, he kept the equipment, continued making payments thereon for some 32 months, and gave appellee no notice of any claimed defect until suit was filed against him three years after the delivery and installation of the heater. In Woods v. Van Wallis Trailer Sales Company, supra, it was stated:\n\u201cAfter having a reasonable opportunity to inspect and with full knowledge of the trailer\u2019s defects, the making of partial payments, performing acts of dominion, as well as acts inconsistent with any intention to rescind, amount to an acceptance or ratification. * * * \u201d\nIn our opinion the conduct of appellant could properly be construed only as an acceptance, and the trial court was not concerned with the principle of laches.\nBy his third point, appellant claims prejudice on the part of the district court in presiding over the case. There is nothing in the record to support or even suggest prejudice on the part of the district judge, and appellant bases his arguments very largely upon matters not found in the record. Matters not disclosed by the record fall outside the scope of our appellate review and will not be considered. Supreme Court Rule 17(1) [\u00a7 21-2-1(17) (1), N.M.S.A.1953 (Repl.Vol. 4, 1970)]; Federal National Mortgage Ass\u2019n v. Rose Realty, Inc., 79 N.M. 281, 442 P.2d 593 (1968); General Services Corp. v. Board of Com\u2019rs., 75 N.M. 550, 408 P.2d 51 (1965); Richardson Ford Sales v. Cummins, 74 N.M. 271, 393 P.2d 11 (1964).\nAppellee requests that we award it a reasonable attorney\u2019s fee, or direct the trial court, in its discretion, to award such a fee. No question of an attorney\u2019s fee was presented to the trial court. Appellee urges the allowance of a fee to discourage and prevent frivolous litigation. It was appellee who first initiated the suit, lost in the magistrate court, and then appealed to the district court. It was properly within its rights in so doing, but, because appellant defended himself successfully in the magistrate court, lost in the district court and then appealed to this court, we are not inclined to award appellee an attorney\u2019s fee for the purpose of discouraging or preventing frivolous litigation.\nThe judgment should be affirmed.\nIt is so ordered.\nCOMPTON, C. J., and TACKETT, J., concur.", "type": "majority", "author": "OMAN, Justice." } ], "attorneys": [ "William H. Taylor, pro se.", "Botts, Botts & Mauney, Gerald R. Cole, Albuquerque, for appellee." ], "corrections": "", "head_matter": "486 P.2d 606\nSOUTHERN UNION GAS COMPANY, a corporation, Plaintiff-Appellee, v. William H. TAYLOR and Jutta Taylor, Defendants-Appellants.\nNo. 9212.\nSupreme Court of New Mexico.\nJune 7, 1971.\nRehearing Denied June 30, 1971.\nMotion for Leave to File Second Motion for Rehearing Denied July 12, 1971.\nWilliam H. Taylor, pro se.\nBotts, Botts & Mauney, Gerald R. Cole, Albuquerque, for appellee." }, "file_name": "0670-01", "first_page_order": 726, "last_page_order": 728 }