2023 New Mexico Statutes › Chapter 39 - Judgments, Costs, Appeals › Article 3 - Appeals › Section 39-3-2 - Civil appeals from district court.

Within thirty days from the entry of any final judgment or decision, any interlocutory order or decision which practically disposes of the merits of the action, or any final order after entry of judgment which affects substantial rights, in any civil action in the district court, any party aggrieved may appeal therefrom to the supreme court or to the court of appeals, as appellate jurisdiction may be vested by law in these courts.
History:
Laws 1917, ch. 43, § 1; C.S. 1929, § 105-2501; 1953 Comp., § 21-10-2; Laws 1966, ch. 28, § 35.
ANNOTATIONS
Cross references.
— For supreme court jurisdiction,
see
N.M. Const., art. VI, § 2; 39-3-3, 39-3-4 NMSA 1978.
For court of appeals jurisdiction,
see
N.M. Const., art. VI, § 29; 39-5-8 NMSA 1978.
For Uniform Certification of Questions of Law Act,
see
Chapter 39, Article 7 NMSA 1978.
For when appeals taken,
see
Rules 12-201 and 12-203 NMRA.
For how appeals taken,
see
Rule 12-202 NMRA.
For procedure on certiorari to review decision of court of appeals,
see
Rule 12-502 NMRA.
For procedure on certification from court of appeals,
see
Rule 12-606 NMRA.
Provisions not applicable to election contests.
— Laws 1917, ch. 43, § 1 (this section), § 2 (39-3-15 NMSA 1978), and § 4 (39-3-5 NMSA 1978) did not apply to review of election contest cases.
Hannett v. Mowrer
, 1927-NMSC-018, 32 N.M. 231, 255 P. 636.
Creation of right of appeal is matter of substantive law
and not within the rule-making power of the supreme court.
State v. Arnold
, 1947-NMSC-043, 51 N.M. 311, 183 P.2d 845.
Timely filing of the notice of appeal is jurisdictional.
Rivera v. King
, 1988-NMCA-093, 108 N.M. 5, 765 P.2d 1187, cert. denied, 107 N.M. 785, 765 P2d 758.
Late filing of appeal.
— Because timely filing of an appeal is a mandatory precondition rather than an absolute jurisdictional requirement, a trial court may, under unusual circumstances, use its discretion and entertain an appeal even though it is not timely filed. The decision to dismiss an appeal is extreme and must be determined on a case-by-case basis.
Trujillo v. Serrano
, 1994-NMSC-024, 117 N.M. 273, 871 P.2d 369.
Court error may excuse late appeal.
— One unusual circumstance which would warrant permitting an untimely appeal is if the delay is a result of judicial error. To deny a party the constitutional right to an appeal because of a mistake on the part of the court runs against the most basic precepts of justice and fairness.
Trujillo v. Serrano
, 1994-NMSC-024, 117 N.M. 273, 871 P.2d 369.
Within rule-making power to reduce appeal time.
— It was within the rule-making power of the supreme court to reduce the time for taking an appeal from six to three months once the legislature had authorized appeal, since the regulation of the manner and time for taking appeal were procedural matters.
State v. Arnold
, 1947-NMSC-043, 51 N.M. 311, 183 P.2d 845.
Determination to be final before supreme court review.
— The supreme court cannot exercise appellate jurisdiction by appeal or writ of error to review any determination in an inferior tribunal, unless such determination be the final judgment of a court as prescribed by law.
Staab v. Atl. & Pac. R.R. Co.
, 1886-NMSC-015, 3 N.M. (Gild.) 606, 9 P. 381 (decided under former law).
Test of whether judgment is final,
so as to permit the taking of an immediate appeal, lies in the effect the judgment has upon the rights of some or all of the parties.
Bralley v. City of Albuquerque
, 1985-NMCA-043, 102 N.M. 715, 699 P.2d 646.
Judgment lacking decretal language not final.
— Court "order" that made numerous findings of fact and rulings of law, including a finding that mother was entitled to child support payments and costs from father, but which failed to specifically order that judgment be entered for mother, and did not contain the signatures or initials of the parties' attorneys, was not a final, appealable order because of its lack of decretal language.
Khalsa v. Levinson
, 1998-NMCA-110, 125 N.M. 680, 964 P.2d 844.
"Order" is not final where all parties and the court consider it a non-final order.
Hernandez v. Home Educ. Livelihood Program, Inc.
, 1982-NMCA-079, 98 N.M. 125, 645 P.2d 1381, cert. denied, 98 N.M. 336, 648 P.2d 794.
Report of grand jury.
— Since no parties are involved, and no facts are found nor issues of law decided, the report of a grand jury is not a judgment. Therefore, that report does not constitute a final, appealable order.
McKenzie v. Fifth Judicial Dist. Court
, 1988-NMCA-085, 107 N.M. 778, 765 P.2d 194, cert. denied, 107 N.M. 785, 765 P2d 758.
Order deemed "final".
— An order of dismissal "without prejudice" for failure to exhaust administrative remedies was a final order necessitating a timely appeal in order to preserve appellate review.
Bralley v. City of Albuquerque
, 1985-NMCA-043, 102 N.M. 715, 699 P.2d 646.
An order dismissing a party's entire complaint, without authorizing or specifying a definite time for leave to file an amended complaint, is a final order for purposes of appeal.
Bralley v. City of Albuquerque
, 1985-NMCA-043, 102 N.M. 715, 699 P.2d 646.
A ruling of a land use authority granting an application for a special use permit, subject to certain specified conditions, and the district court's affirmance of it were final orders for the purpose of allowing an aggrieved party to seek appellate review.
West Gun Club Neighborhood Ass'n v. Extraterritorial Land Use Auth.
, 2001-NMCA-013, 130 N.M. 195, 22 P.3d 220, cert. denied, 130 N.M. 558, 28 P.3d 1099.
Orders under Uniform Arbitration Act.
— Reading this section and 44-7-19(B) NMSA 1978 together because they are in pari materia, the plain meaning of the language indicates that the legislature intended that orders made under the Uniform Arbitration Act of 1971 be no more or less appealable than any other orders in civil actions.
Collier v. Pennington
, 2003-NMCA-064, 133 N.M. 728, 69 P.3d 238.
Order compelling arbitration
was a final order from which defendants were obligated to appeal within 30 days.
Lyman v. Kern
, 2000-NMCA-013, 128 N.M. 582, 995 P.2d 504, cert. denied, 128 N.M. 688, 997 P.2d 820.
Appellants' claim that nonattorney police court judge was not constitutionally qualified
to hear their criminal cases was properly taken directly from the district court to the supreme court; the court of appeals did not have jurisdiction thereof.
Tsiosdia v. Rainaldi
, 1976-NMSC-011, 89 N.M. 70, 547 P.2d 553.
Order opening up judgment in workmen's compensation case is not final order,
but merely interlocutory and not appealable.
Davis v. Meadors-Cherry Co.
, 1957-NMSC-093, 63 N.M. 285, 317 P.2d 901.
Order opening up judgment is not order vacating judgment.
— The order reopening the judgment in workmen's compensation case was not, in effect, an order vacating the judgment.
Davis v. Meadors-Cherry Co.
, 1957-NMSC-093, 63 N.M. 285, 317 P.2d 901.
Order setting aside default judgment not final.
— A district court order setting aside a default judgment in subsequent writ of garnishment stemming from a tort action merely vacated the judgment, leaving the case pending for further determination, and thus was not appealable.
Hall v. Hall
, 1993-NMCA-038, 115 N.M. 384, 851 P.2d 506.
Remand of zoning decision not final.
— A district court's remand of a zoning matter to the city council is not a final, appealable order; before a party would have the right to challenge that order on appeal to the Court of Appeals, it would have to await the council decision on remand, obtain review of the council decision in district court, and then appeal the district court judgment.
High Ridge Hinkle Joint Venture v. City of Albuquerque
, 1994-NMCA-139, 119 N.M. 29, 888 P.2d 475, cert. denied, 119 N.M. 20, 888 P.2d 466 (1994),
aff'd
, 1997-NMCA-046, 123 N.M. 394, 940 P.2d 1189,
rev'd on other grounds
, 1998-NMSC-050, 126 N.M. 413, 970 P.2d 599.
Order remanding to administrative agency final.
— An order by the district court finding a state statute unconstitutional and remanding the case to an administrative agency was final and appealable since, if the agency proceeded under the remanded order, the constitutional question would become moot and would be effectively unreviewable.
Bustamante v. De Baca
, 1995-NMCA-036, 119 N.M. 739, 895 P.2d 261.
Court letter classifying marital property not final, appealable order.
— Trial court's letter informing the parties that the husband's certified public accountant business would be characterized as a community asset was not a final order from which the husband could appeal.
Mitchell v. Mitchell
, 1986-NMCA-028, 104 N.M. 205, 719 P.2d 432, cert. denied, 104 N.M. 84, 717 P.2d 60.
Denial of motion for protective order held not appealable.
— Doctors' appeal from order denying motion for protective order, which sought to have court order a stay in taking of deposition of patient seeking to perpetuate testimony until such time as court first determined competency of patient as witness, was not an appealable final judgment and was not appealable as interlocutory order where order did not comply with 39-3-4 NMSA 1978.
In re Bartow
, 1984-NMCA-074, 101 N.M. 532, 685 P.2d 387.
Denial of immunity claim not immediately appealable.
— Since 41-4-4A NMSA 1978 of the Tort Claims Act provides a defense to liability, and not absolute immunity from suit, a denial of a claim of immunity under that section does not meet the requirements for immediate appellate review under the collateral order exception to the traditional requirement of finality.
Allen v. Board of Educ.
, 1987-NMCA-152, 106 N.M. 673, 748 P.2d 516.
Review of governmental immunity determination.
— As a general matter, the limited exception to the rule of finality known as the collateral order doctrine applies to district court determinations regarding governmental immunity under 37-1-23A NMSA 1978, and such determinations are subject to review by writ of error.
Handmaker v. Henney
, 1999-NMSC-043, 128 N.M. 328, 992 P.2d 879.
When property judgment in divorce proceeding not final for appellate review.
— A final property judgment in a petition for dissolution of marriage is not final so as to allow appellate review where the court has failed to determine the parties' rights to custody, support and visitation of minor children, as requested by the pleadings, and has failed to determine that there is no just reason for delay before its decision is final enough to allow appellate review.
Thornton v. Gamble
, 1984-NMCA-093, 101 N.M. 764, 688 P.2d 1268.
Open damages award not appealable.
— District court's ruling of liability pursuant to the Declaratory Judgment Act, 44-6-1 to -15 NMSA 1978, was not a final, appealable judgment since it left open for future resolution the amount of a damages award including attorney's fees.
Principal Mut. Life Ins. Co. v. Straus
, 1993-NMSC-058, 116 N.M. 412, 863 P.2d 447.
Issuance of subpoenas duces tecum to a non-party was a collateral order reviewable by writ of error.
— Where plaintiff sued defendants for employment discrimination; plaintiff's spouse, who was not a party to the action, maintained a private law practice; plaintiff alleged that upon filing the complaint, defendants retaliated against plaintiff by asserting irregularities with regard to the gross receipts tax records and returns of the spouse's private law practice; the district court issued subpoenas duces tecum to the spouse and to defendant taxation and revenue department for the spouse's gross receipts tax records and returns; the spouse moved to quash the subpoenas on the grounds that the gross receipts tax information was confidential and privileged; the district court denied the motion; the order denying the motion to quash practically disposed of all issues raised by the spouse; the issue of the spouse's rights and privilege concerning the confidentiality of the gross receipt tax information had nothing to do with the merits of plaintiff's action; and the district court's order was not a final order disposing of the merits of the underlying case and was effectively unreviewable on appeal from a final judgment because the spouse was not a party to the action, the district court's order authorizing the subpoenas was reviewable by writ of error under the collateral order doctrine.
Breen v. N.M. Taxation & Revenue Dep't
, 2012-NMCA-101, 287 P.3d 379.
Nonparty attorney's standing to appeal a district court's order striking the attorney's entry of appearance.
— Where a court-appointed guardian for an incapacitated person, without the permission of the district court or approval of the conservator for the incapacitated person, hired an attorney to represent the incapacitated person, and where the district court struck the attorney's entry of appearance, holding that the guardian did not have the authority to hire an attorney for the incapacitated person, the nonparty attorney had the right to appeal on his own behalf because he participated in certain court proceedings as an attorney hired to represent the incapacitated person initiated by the court-appointed guardian's request that the district court determine whether the guardianship continued to be necessary, and the district court's order striking the attorney's entry of appearance and barring him from further contact with the incapacitated person directly and sufficiently aggrieved the attorney such that this section affords him the right to appeal that order, even though he did not participate as a party below.
Richards v. McEachern
, 2020-NMCA-023.
Arbitrator's right to appeal district court order vacating arbitration award.
— Where husband and wife dissolved their marriage by stipulated judgment, and where, following a dispute over the implementation of the stipulated judgment, husband and wife entered into a settlement agreement that required the parties to submit all disputes or claims to final and binding arbitration, and where the district court vacated the arbitrator's arbitration award and disqualified the arbitrator from serving as arbitrator, finding that the arbitrator demonstrated evident partiality, the arbitrator had the right to appeal the district court's order because the arbitrator was a party under the settlement agreement and the district court's order directly and sufficiently aggrieved the arbitrator such that he had a right to appeal the order.
Rogers v. Red Boots Invs
., 2020-NMCA-028, cert. denied.
Law reviews.
— For article, "Jurisdiction as May Be Provided by Law: Some Issues at Appellate Jurisdiction in New Mexico," see 36 N.M.L. Rev. 215 (2006).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 5 Am. Jur. 2d Appellate Review § 285 et seq.
Power of trial court indirectly to extend time for appeal, 89 A.L.R. 941, 149 A.L.R. 740.
Lower court's consideration, on the merits, of unseasonable application for new trial, rehearing, or other reexamination, as affecting time in which to apply for appellate review, 148 A.L.R. 795.
Failure, due to fraud, duress, or misrepresentation by adverse party, to file notice of appeal within prescribed time, 149 A.L.R. 1261.
Exclusion or inclusion of terminal Sunday or holiday in computing time for taking or perfecting appellate review, 61 A.L.R.2d 482.
Running of interest on judgment where both parties appeal, 11 A.L.R.4th 1099.
4 C.J.S. Appeal & Error § 264 et seq.