{ "id": 2766639, "name": "Ruby Mae HUGHES, Individually, and Alien Hughes, Individually and d/b/a Hughes Butcher Shop, Plaintiffs-Appellants, v. JOE G. MALOOF AND COMPANY, a corporation, and Louis M. Montoya, Defendants-Appellees", "name_abbreviation": "Hughes v. Joe G. Maloof & Co.", "decision_date": "1973-01-05", "docket_number": "No. 965", "first_page": "516", "last_page": "519", "citations": [ { "type": "official", "cite": "84 N.M. 516" }, { "type": "parallel", "cite": "505 P.2d 859" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "46 N.M. 159", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563076 ], "weight": 2, "year": 1942, "opinion_index": 0, "case_paths": [ "/nm/46/0159-01" ] }, { "cite": "161 F.Supp. 248", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 345474 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/f-supp/161/0248-01" ] }, { "cite": "165 F.Supp. 287", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 360540 ], "opinion_index": 0, "case_paths": [ "/f-supp/165/0287-01" ] }, { "cite": "180 F.2d 874", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1251243 ], "year": 1950, "opinion_index": 0, "case_paths": [ "/f2d/180/0874-01" ] }, { "cite": "291 F.2d 721", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1994419 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/f2d/291/0721-01" ] }, { "cite": "260 S.W.2d 889", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10185307 ], "opinion_index": 0, "case_paths": [ "/sw2d/260/0889-01" ] }, { "cite": "249 N.W. 656", "category": "reporters:state_regional", "reporter": "N.W.", "year": 1933, "opinion_index": 0 }, { "cite": "216 Iowa 752", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2330308 ], "year": 1933, "opinion_index": 0, "case_paths": [ "/iowa/216/0752-01" ] }, { "cite": "34 A.L.R. 980", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1924, "opinion_index": 0 }, { "cite": "222 P. 912", "category": "reporters:state_regional", "reporter": "P.", "year": 1924, "opinion_index": 0 }, { "cite": "29 N.M. 324", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841751 ], "year": 1924, "opinion_index": 0, "case_paths": [ "/nm/29/0324-01" ] }, { "cite": "79 N.M. 671", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2739283 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/79/0671-01" ] }, { "cite": "53 N.M. 44", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580782 ], "weight": 2, "year": 1948, "opinion_index": 0, "case_paths": [ "/nm/53/0044-01" ] }, { "cite": "75 N.M. 741", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5377318 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/75/0741-01" ] }, { "cite": "77 N.M. 801", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2803316 ], "weight": 2, "year": 1967, "opinion_index": 1, "case_paths": [ "/nm/77/0801-01" ] }, { "cite": "73 N.M. 365", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5320882 ], "weight": 2, "year": 1964, "opinion_index": 1, "case_paths": [ "/nm/73/0365-01" ] }, { "cite": "77 N.M. 303", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2808719 ], "weight": 2, "year": 1967, "opinion_index": 1, "case_paths": [ "/nm/77/0303-01" ] }, { "cite": "46 N.M. 159", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563076 ], "weight": 2, "year": 1942, "opinion_index": 1, "case_paths": [ "/nm/46/0159-01" ] } ], "analysis": { "cardinality": 481, "char_count": 8064, "ocr_confidence": 0.675, "pagerank": { "raw": 9.539310687039109e-08, "percentile": 0.5248294398630963 }, "sha256": "6500a9032a16e948053387805addfa77b92af5e72e041c210162959a2f34aa5f", "simhash": "1:a34fb8b27884edff", "word_count": 1347 }, "last_updated": "2023-07-14T17:55:55.751115+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ, J., concurs." ], "parties": [ "Ruby Mae HUGHES, Individually, and Alien Hughes, Individually and d/b/a Hughes Butcher Shop, Plaintiffs-Appellants, v. JOE G. MALOOF AND COMPANY, a corporation, and Louis M. Montoya, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nThe appeal raises a question of venue.\nAn automobile accident, involving three vehicles, occurred in Bernalillo County. The Montanos, the original plaintiffs, named all the parties to this appeal as defendants. The Hughes then cross-claimed against Maloof (Montoya and Joe G. Maloof and Company). The Montanos resided in Sandoval County and filed their suit in Sandoval County District Court. It is conceded that venue in Sandoval County was proper when the suit was commenced. Section 21-5-1, N.M.S.A.1953 (Repl.VoL 4); see Torres v. Gamble, 75 N.M. 741, 410 P.2d 959 (1966).\nThe suit came on for trial on December 9, 1971. Before the jury was empanelled the attorney for Maloof informed the trial court that a settlement had been reached with the Montanos. Thereupon, the attorney for the Hughes moved that the Montanos\u2019 suit against the Hughes be dismissed. This was done. On December 13, 1971, on motion of the Montanos, an order was entered dismissing their claims against all parties in this appeal. For the purposes of this appeal, we will assume Montanos\u2019 claims against all defendants were dismissed prior to beginning of trial on December 9th.\nOnce the trial court ordered the Montanos\u2019 suit against the Hughes dismissed, the Hughes moved \u201c * * * for a change of venue to Bernalillo County * * This motion came at a time when the parties to the cross-claim were present and ready for trial. The trial court denied the venue motion. The case was tried; the jury verdict was for Maloof. The Hughes appeal, contending venue should have been changed to Bernalillo County where the accident occurred and where, allegedly, all parties to the cross-claim reside.\nThe Hughes assert there was no basis for a change of venue prior to dismissal of the Montanos\u2019 suit; that the venue motion was made immediately after this dismissal. Thus, they contend the motion was made at the earliest possible time and the question of venue was not waived. See Heron v. Gaylor, 53 N.M. 44, 201 P.2d 366 (1948); Askew v. Fort Sumner Irrigation District, 79 N.M. 671, 448 P.2d 183 (Ct.App.1968). For the purposes of this appeal, we assume the motion was timely and there had been no waiver.\nThe venue claim is based on the wording of \u00a7 21-5-1 (A), supra, which deals with where transitory actions \u201cshall be brought.\u201d\nThis language refers to the counties in which civil actions \u201cshall be commenced.\u201d See the opening paragraph of \u00a7 21-5-1, supra. A civil action is commenced by filing a complaint. Section 21-1-1(3), N.M.S.A. 1953 (Repl.Vol. 4). The lawsuit involved in this case was commenced when the Montanos filed their complaint and not when the Hughes filed their cross-claim. Section 21-5-1, supra, does not expressly apply to cross-claims.\nThe Hughes contend that \u00a7 21-5-1, supra, became applicable because upon the dismissal of the Montanos\u2019 claim \u201ca new lawsuit was fashioned.\u201d We disagree. Section 21-1-1(13) (g), N.M.S.A.1953 (Repl.Vol. 4) states: \u201cA pleading may state as a cross-claim any claim by one [1] party against a coparty arising out of the transaction or occurrence that is the subject matter * * * of the original action * * The rule contemplates an origi-\nnal action. Since the cross-claim must arise out of the transaction or occurrence that is the subject matter of the original action, the original complaint and the cross-claim constitute but one suit. Young et al. v. Vail et al., 29 N.M. 324, 222 P. 912, 34 A.L.R. 980 (1924). Cross-claims involve coparties. Even though the original claim of the Montanos had been dismissed, neither the pleadings nor parties had changed in connection with the cross-claim. The cross-claim that remained was part of the original suit; it was not a new lawsuit. See Ryan v. Amodeo, 216 Iowa 752, 249 N.W. 656 (1933); J. A. Walsh & Co. v. R. B. Butler, Inc., 260 S.W.2d 889 (Tex.Civ.App.1953).\nSince the cross-claim did not become a new lawsuit upon the dismissal of the Montanos\u2019 claim, the provisions of \u00a7 21 \u2014 5\u2014 1, supra, did not become applicable, and that statute did not authorize a change of venue at that stage in the proceedings.\nFurther, there was no right to a change of venue upon dismissal of the Montanos\u2019 claim under the concept of continuing jurisdiction. The cross-claim is ancillary to the original claim, to which it is related. When the original claim is dismissed, a federal court does not lose jurisdiction over a cross-claim even though there is no independent jurisdictional basis for the cross-claim. R. M. Smythe & Co. v. Chase National Bank of City of N. Y., 291 F.2d 721 (2nd Cir. 1961); Coastal Air Lines v. Dockery, 180 F.2d 874 (8th Cir. 1950); Mayer v. Chase National Bank of City of New York, 165 F.Supp. 287 (S.D.N.Y.1958); compare Young et al. v. Vail et al., supra. The reason is that the cross-claim rule \u201c * * * should be given a liberal construction to vest full and complete jurisdiction in the Court to determine the entire controversy and not merely a part of it * \" United States v. Thomas Steel Corporation, 161 F.Supp. 248 (N.D. Ohio 1958); see 3 Moore\u2019s Federal Practice jl 13.36 (1968).\nWe are aware that the above cases deal with jurisdiction and that venue is a question separate from jurisdiction. Peisker v. Chavez, 46 N.M. 159, 123 P.2d 726 (1942). However, the rationale of the above cases is that a court, having a case properly before it, should determine the entire controversy and not just a part of it. Compare Young et al. v. Vail et al., supra. That rationale is applicable to the venue question. We hold that if venue is proper in the original action, it continues to be proper for valid cross-claims filed in connection with the original action even though the original claim has been dismissed.\nOur decision is this: (a) \u00a7 21-5-1, supra, does not provide for the venue of cross-claims and (b) if venue is proper in the original suit, it continues to be proper for cross-claims which are a part of the original suit even though the original claim is dismissed.\nThe judgment on the verdict is affirmed. It is so ordered.\nHERNANDEZ, J., concurs.", "type": "majority", "author": "WOOD, Chief Judge." }, { "text": "SUTIN, Judge\n(specially concurring).\nThe record shows that this case came on for trial the morning of December 9, 1971, in Sandoval County, between Hughes and Maloof. While motions were being discussed, Hughes stated:\n* * * I do believe Your Honor though that the cause of action of the Montano\u2019s against the Hughes\u2019 should be dismissed with prejudice at this time in view of the fact that we are here before the Court ready to go to trial, all counsel has been alerted to the trial and formal notice given and neither the Montano\u2019s or their attorney are present in the Courtroom and we are here ready for trial on their case and we would move that that action be dismissed, Montano v. Hughes. [Emphasis added]\n* * * * * * THE COURT: It is so ordered then\nThe Montano\u2019s and their attorney were not present. Thereupon, Hughes orally moved the court for a change of venue to Bernalillo County.\nTHE COURT: I think this Court already has jurisdiction of the matter and I\u2019m going to deny your motion.\nThe case proceeded to jury trial without objection.\nBy proceeding to trial without objection, Hughes waived any claimed error on the issue of venue. Peisker v. Chavez, 46 N.M. 159, 123 P.2d 726 (1942); Davey v. Davey, 77 N.M. 303, 422 P.2d 38 (1967); Bernstein v. Bernstein, 73 N.M. 365, 388 P.2d 187 (1964).\nWhere the venue statute is jurisdictional on its face, \u00a7 21-5-1 (G), N.M.S.A.1953 (Repl.Vol. 4), venue cannot be waived. Allen v. McClellan, 77 N.M. 801, 427 P.2d 677 (1967). Otherwise, it can.", "type": "concurrence", "author": "SUTIN, Judge" } ], "attorneys": [ "John V. Coan, George A. Morrison, Thompson & Morrison, Albuquerque, for plaintiffs-appellants.", "Kenneth L. Harrigan, Charles J. Noya, Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, for defendants-appellees." ], "corrections": "", "head_matter": "505 P.2d 859\nRuby Mae HUGHES, Individually, and Alien Hughes, Individually and d/b/a Hughes Butcher Shop, Plaintiffs-Appellants, v. JOE G. MALOOF AND COMPANY, a corporation, and Louis M. Montoya, Defendants-Appellees.\nNo. 965.\nCourt of Appeals of New Mexico.\nJan. 5, 1973.\nJohn V. Coan, George A. Morrison, Thompson & Morrison, Albuquerque, for plaintiffs-appellants.\nKenneth L. Harrigan, Charles J. Noya, Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, for defendants-appellees." }, "file_name": "0516-01", "first_page_order": 672, "last_page_order": 675 }