{
  "id": 2824573,
  "name": "Bernie MARQUEZ, Plaintiff-Appellant, v. TOME LAND AND IMPROVEMENT COMPANY, INC., a (N.S.L.) corporation, Defendant-Appellee",
  "name_abbreviation": "Marquez v. Tome Land & Improvement Co.",
  "decision_date": "1974-06-05",
  "docket_number": "No. 1392",
  "first_page": "317",
  "last_page": "319",
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      "cite": "86 N.M. 317"
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    {
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      "cite": "523 P.2d 815"
    }
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  "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."
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    {
      "cite": "57 N.M. 336",
      "category": "reporters:state",
      "reporter": "N.M.",
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        8841837
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      "year": 1953,
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  "last_updated": "2023-07-14T22:44:27.328252+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "HENDLEY and LOPEZ, JJ., concur."
    ],
    "parties": [
      "Bernie MARQUEZ, Plaintiff-Appellant, v. TOME LAND AND IMPROVEMENT COMPANY, INC., a (N.S.L.) corporation, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "OPINION\nSUTIN, Judge.\nPlaintiff Bernie Marquez appeals from an order of the trial court entered August 14, 1973. The order denied the motions made by this plaintiff because a complaint filed by him and two other plaintiffs had been dismissed with prejudice by a previous court\u2019s order in January, 1970. The previous court\u2019s order was entered January 8, 1970.\nOn November 18, 1968, Perfecto Barela, Jose L. Vallejos, administrator, and Bernie Marquez filed a complaint in Valencia County against defendant in separate causes of action. Defendant answered.\nOn August 26, 1969, a settlement hearing was held before the Honorable D. A. Macpherson, Jr., District Judge of District Two. The defendant questioned Barela and Vallejos, under oath, to affirm a stipulation of settlement between these plaintiffs and defendant.\nOn January 8, 1971, Judge Macpherson entered an order:\n(1) \u201cThat the settlement stipulation between the parties ought to be and is hereby approved.\u201d The parties were Barela, Vallejos and defendant.\n(2) Thereafter, the words of the order changed from \u201cparties\u201d to \u201cplaintiffs\u201d and ordered compliance with the settlement.\n(3) The order concluded:\nThat, on account of, and in consideration of said settlement stipulation among the parties hereto, hereby approved by this court, Plaintiffs complaint is hereby dismissed with prejudice.\nThis order was approved by the attorneys for plaintiffs and defendant. No appeal was taken from this judgment.\nOn March 14, 1973, two years after Judge Macpherson\u2019s order, plaintiff moved the court for summary judgment, judgment by default and to set the case for trial at the earliest convenience of the court.\nOn March 29, 1973, plaintiff served notice that the cause had been set for hearing on April 10, 1973, on plaintiff\u2019s motions before the Honorable Filo M. Sedillo, District Judge of Valencia County because Valencia County had then become a district separate from District Two.\nDuring argument on the motions, Judge Macpherson\u2019s order of dismissal on January 8, 1971, supra, was raised. Defendant contended the whole case had been dismissed. Plaintiff offered for the record, the transcript of the settlement proceedings but the trial court denied consideration of it. The court believed that if Judge Macpherson made a mistake, he signed the order and it could not be changed; that plaintiff had a duty to file a motion to set the order aside or have it modified.\nOn July 23, 1973, plaintiff gave notice of a hearing on August 14, 1973, \u201con form of order.\u201d We find no record of any proceedings on that date except entry of the order.\nThe trial court entered its order \u201cthat said motions are denied because they are not properly before the Court, the complaint on file herein having been dismissed with prejudice by the Court\u2019s order of January, 1970.\u201d\nJudge Macpherson\u2019s order was final. \u201cA motion to alter or amend the judgment shall be served not later than ten [10] days after entry of the judgment.\u201d Section 21-1-1(59) (e), N.M.S.A.1953 (Repl. Vol. 4). No such motion was filed.\nOn motion, and upon such terms as are just, the trial court could have relieved plaintiff Marquez from a final order for mistake, inadvertence, surprise, or excusable neglect, provided the motion was made not more than one year after the order was entered. The court could have relieved plaintiff Marquez for \u201cany other reason justifying relief from the operation of the judgment\u201d, provided the motion was filed within a reasonable time. Section\n21-1-1(60) (b), N.M.S.A.1953 (Repl. Vol. 4). Plaintiff filed no such motions.\nRule 60(b), supra, provides further:\nThis rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding * * *.\nPlaintiff relies on Rule 54(b) [\u00a7 21 \u2014 1\u2014 1(54) (b), N.M.S.A.1953 (Repl. Vol. 4)]. This rule involves judgment upon multiple claims or involving multiple parties. This rule is not applicable because the Macpherson final order did not affect \u201cone [1] or more but fewer than all of the claims .\u201d nor did it adjudicate \u201call issues as to one [1] or more, but fewer than all parties.\u201d It dismissed plaintiffs\u2019 complaint with prejudice. This covered all the claims of all the parties. We cannot look beyond the order to the record. Hollingsworth v. Hicks, 57 N.M. 336, 258 P.2d 724 (1953).\nOther contentions of plaintiff Marquez are without merit.\nAffirmed.\nIt is so ordered.\nHENDLEY and LOPEZ, JJ., concur.",
        "type": "majority",
        "author": "SUTIN, Judge."
      }
    ],
    "attorneys": [
      "Donald C. Turp\u00e9n, Turp\u00e9n, Hunt & Booth, Albuquerque, for plaintiff-appellant.",
      "Robert D. Montgomery, Ahern & Montgomery, Albuquerque, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "523 P.2d 815\nBernie MARQUEZ, Plaintiff-Appellant, v. TOME LAND AND IMPROVEMENT COMPANY, INC., a (N.S.L.) corporation, Defendant-Appellee.\nNo. 1392.\nCourt of Appeals of New Mexico.\nJune 5, 1974.\nDonald C. Turp\u00e9n, Turp\u00e9n, Hunt & Booth, Albuquerque, for plaintiff-appellant.\nRobert D. Montgomery, Ahern & Montgomery, Albuquerque, for defendant-appellee."
  },
  "file_name": "0317-01",
  "first_page_order": 347,
  "last_page_order": 349
}