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MACLELLAN V. EYERMANN

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JOANN M. MACLELLAN, Individually
and as Guardian and Trustee of DAVID
TIMOTHY KING, DANIEL J. KING, and
JOHN R. KING,
Claimants-Appellants,
v.
VIRGINIA N. EYERMANN,
Personal Representative-Appellee,
IN THE MATTER OF THE ESTATE OF
PHILLIP TIMOTHY KING, Deceased.

No. 33,123

COURT OF APPEALS OF NEW MEXICO

February 3, 2014


APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY, J.C. Robinson, District Judge

COUNSEL

Scott Hulse P.C., Casey S. Stevenson, El Paso, TX, for Appellants

M. Yvonne Gonzalez, Silver City, NM, for Appellee

JUDGES

MICHAEL E. VIGIL, Judge. WE CONCUR: LINDA M. VANZI, Judge, M. MONICA ZAMORA, Judge

AUTHOR: MICHAEL E. VIGIL

MEMORANDUM OPINION

VIGIL, Judge.

{1}       Appellant, JoAnn M. MacLellan, Individually and as Guardian and Trustee of David Timothy King, Daniel J. King, and John R. King, seeks to appeal from the district court’s amended order, dated July 31, 2013, denying her request to vacate the district court’s order, dated July 2, 2013, denying her claims. [DS 2, RP 397, 357] We issued a notice proposing to summarily remand to allow the district court to consider an outstanding motion for relief from judgment filed by MacLellan in the district court on August 1, 2013. MacLellan did not file a response to our proposed disposition, but the Personal Representative of the Estate of Phillip Timothy King, Virginia N. Eyermann, filed a timely memorandum in opposition.

{2}       We continue to believe that MacLellan’s post-judgment motion should be construed as a motion under NMSA 1978, Section 39-1-1 (1953), and that in the interests of judicial economy, this case should be remanded to the district court so that it can rule on this motion. Accordingly, we remand this case to the district court.

{3}       IT IS SO ORDERED.

MICHAEL E. VIGIL, Judge

WE CONCUR:

LINDA M. VANZI, Judge

M. MONICA ZAMORA, Judge

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