GALLUP TRADING CO. V. MICHAELS, 1974-NMSC-048,
86 N.M. 304, 523 P.2d 548 (S. Ct. 1974)
GALLUP TRADING COMPANY,
Plaintiff-Appellee,
vs.
Eddie MICHAELS, Defendant; Don OWEN, aka Donald Owen,
Defendant-Cross-Claimant-Appellant, v. Arthur W.
ROGERS, Cross-Defendant-Appellee.
SUPREME COURT OF NEW MEXICO
1974-NMSC-048, 86 N.M. 304, 523 P.2d 548
Joan K. L. Roberts, Santa Fe, for
defendant-cross-claimant-appellant.
No appearance for appellees.
MONTOYA, J., wrote the opinion. STEPHENSON
and MONTOYA, JJ.
{1} This is an appeal from
the denial of a motion to abate execution. The record discloses that on July
14, 1971, plaintiff-appellee Gallup Indian Trading Company (Gallup), filed suit
in the District Court of McKinley County against defendants Donald Owen and
Eddie Michaels, jointly and severally, on a promissory note dated January 1,
1967. Service was obtained on Owen (appellant) but not upon Michaels. On
November 5, 1971, appellant filed a cross-claim against one Arthur W. Rogers
(Rogers) alleging that Rogers, by separate contract dated January 9, 1969,
agreed to assume all liability incurred by appellant in the name of Pa-Wahn-Tah
Trading Post. Gallup filed a motion for summary judgment against the defendants
Owen and Michaels and, on July 20, 1972, summary judgment was entered against
appellant Owen with his consent and this was recited in the judgment.
Thereafter, two separate executions were issued against appellant, the first on
September 14, 1972, and the second on February 7, 1973. On July 20, 1973, an
entire year after the entry of the judgment against him, appellant filed his
motion to abate execution on the ground that the summary judgment was not
"final" for purposes of execution, because it was not
"final" under the provisions of Rule 54(b), Rules of Civil Procedure
(§ 21-1-1(54)(b), N.M.S.A. 1953). After a hearing, the motion was denied. This
appeal is based on the same contentions as were made at the hearing on the
motion to abate execution. The only appearance before this court is by Owen,
the appellant herein, and the cause was submitted on appellant's brief only.
{2} Rule 54(b), supra, which
was in effect at the time this case was filed, provided as follows:
"(b) Judgment upon multiple claims or involving multiple
parties. When more than one [1] claim for relief is presented in an action,
whether as a claim, counterclaim, cross-claim, or third-party claim, or when
multiple parties are involved, the court may enter a final judgment as to one
or more but fewer than all of the claims or parties only upon an express
determination that there is no just reason for delay. In the absence of such
determination, any order or other form of decision, however designated, {*305} which adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the parties shall not
terminate the action as to any of the claims or parties, and the order or other
form of decision is subject to revision at any time before the entry of
judgment adjudicating all the claims and the rights and liabilities of all the
parties. [As amended by Court Order effective December 31, 1949. Amended April
22, 1969. Effective October 1, 1969.]"
{3} The purpose of this rule
is stated in Vol. 10, Wright & Miller, Federal Practice and Procedure,
Civil, § 2654 at 34 (1973):
"The requirement in Rule 54(b) that the court make an
express determination that there was no just reason for delaying the review of
a judgment on fewer than all of the claims or involving fewer than all of the
parties in an action eliminates any doubt whether an immediate appeal may be
sought. Conversely, it is important for a party to determine whether an order
is a 'final decision' under 54(b) since the time for appeal begins to run from
the entry of an order than meets the requirements of the rule. A litigant who
erroneously decides that an order was not final and waits until the disposition
of the entire case before seeking an appeal may lose his right to have that
order reviewed. * * *"
{4} In the usual adversary
action involving multiple parties or multiple claims, Rule 54(b), supra, serves
a useful function in providing much needed certainty in determining when a
final and appealable judgment has been entered. In this case, however, the
appellant consented to the summary judgment and we consider that act to be
dispositive of this appeal. It is the general rule that:
"* * *. A judgment by consent is in effect an admission
by the parties that the decree is a just determination of their rights on the
real facts of the case had they been found. It is ordinarily absolutely
conclusive between the parties, and cannot be appealed from or reviewed on a
writ of error. * * *"
Shaw v. Spelke, 110 Conn. 208, 215, 147 A. 675, 677 (1929).
See also State v. Huebner, 230 Ind. 461, 104 N.E.2d 385 (1952); 4 Am. Jur.2d
Appeal and Error, §§ 116, 243.
{5} In the instant case, when
appellant consented to the entry of summary judgment against him, we conclude
that he thereby acquiesced in the judgment and lost his right to appeal. It
follows and we hold that, since the purpose of Rule 54(b), supra, is to give
notice to a party that a judgment or order is "final" so as to allow
immediate appeal, its provisions never became applicable. Since appellant had
no right to appeal, he had no need to utilize Rule 54(b), supra, and
consequently, appellant will not now be heard to complain that the requirements
of the rule were not satisfied.
{6} In view of the foregoing
disposition, we need not consider appellant's contentions.
{7} The order denying the
motion to abate execution is affirmed.
STEPHENSON and MONTOYA, JJ.