Supreme Court of New Mexico
Decision Information
Adams v. Tatsch - cited by 132 documents
Flores v. Duran - cited by 42 documents
State v. Arnold - cited by 174 documents
William K. Warren Found. v. Barnes - cited by 56 documents
Decision Content
EVANS V. BARBER SUPER MKTS., INC., 1961-NMSC-092, 69 N.M. 13, 363 P.2d 625 (S. Ct. 1961)
Jack N. EVANS and Grace D. Evans,
Plaintiffs-Appellants,
vs.
BARBER SUPER MARKETS, INC., and The Green Giant Company,
Defendants-Appellees
No. 6877
SUPREME COURT OF NEW MEXICO
1961-NMSC-092, 69 N.M. 13, 363 P.2d 625
July 12, 1961
Action wherein a motion to dismiss for failure to state a claim upon which relief could be granted was filed. The District Court, San Juan County, Clyde C. McCulloh, D.J., granted the motion and an appeal was taken. The Supreme Court, Compton, C.J., held that in absence of an order granting an appeal following the motion for an appeal, the appeal could not be entertained.
COUNSEL
Koogler & Smith, Aztec, for appellants.
Tansey & Rosebrough, Farmington, for appellees.
JUDGES
Compton, Chief Justice. Chavez and Moise, JJ., concur. Carmody and Noble, JJ., not participating.
OPINION
{*14} {1} Unfortunately this appeal cannot be disposed of on the merits due to appellants' failure to comply with the provisions of Sec. 21-2-1(5) (1), 1953 Comp., being our Appellate Rule (5) (1), which reads:
"Within thirty days from the entry of any final judgment in any civil action any party aggrieved may appeal therefrom to the Supreme Court * * *."
{2} Pursuant to a motion filed by the defendant, Barber Super Markets, Inc., the complaint was dismissed for failure to state a claim upon which relief could be granted. The order of dismissal was entered August 29, 1960. The appellants moved for an appeal; however, the transcript fails to disclose an order granting an appeal.
{3} While this jurisdictional question is not raised by the parties, the failure to do so is inconsequential. This court will notice the state of the record to determine whether it has jurisdiction and may from its own discovery question that fact. State v. Arnold, 51 N.M. 311, 183 P.2d 845; Flores v. Duran, 68 N.M. 42, 357 P.2d 1091.
{4} The order granting an appeal is the basis of our jurisdiction; jurisdiction cannot be conferred by waiver or consent of the parties. William K. Warren Foundation v. Barnes, 67 N.M. 187, 354 P.2d 126. Also, see Adams v. Tatsch, N.M., 362 P.2d 984.
{5} The appeal must be dismissed, and it is so ordered.