MORA V. MARTINEZ, 1969-NMSC-030, 80 N.M.
88, 451 P.2d 992 (S. Ct. 1969)
FRANK A. MORA and LELA V. MORA, his
wife,
Plaintiffs-Appellees,
vs.
MARY TAPIA RAEL MARTINEZ, Defendant-Appellant
SUPREME COURT OF NEW MEXICO
1969-NMSC-030, 80 N.M. 88, 451 P.2d 992
APPEAL FROM THE DISTRICT COURT OF
BERNALILLO COUNTY, MACPHERSON, Judge
TRAUB, PARHAM & ZURIS, Albuquerque,
New Mexico, Attorneys for Appellees.
FARLOW & DUFFY, Albuquerque, New
Mexico, Attorneys for Appellant.
CARMODY, Justice, wrote the opinion.
M. E. Noble, C.J., Irwin S. Moise, J.
{1} The principal defendant
below appeals from the entry of a decree quieting title in the plaintiffs.
{2} The case has had a long
life prior to its submission to us. It was originally filed in the district
court in June of 1960. In October 1961, a pre-trial conference was held. In
July 1962, a first amended complaint was filed, followed in due time by answers
of the defendant-appellant and another party. The trial was held in January of
1963, although additional testimony was taken the following March. For reasons
{*89} not disclosed by the record, a year
elapsed before the defendant filed her requested findings of fact and
conclusions of law. Some two months later, in May of 1964, the plaintiffs filed
a lengthy substantially unnumbered instrument entitled "Requested Findings
of Fact and Conclusions of Law"; in essence, this particular instrument
related to the facts allegedly proven by the plaintiffs; it consists of some
nine typewritten pages, six of which were more like a summarization following
the trial rather than findings of fact and conclusions of law. In any event,
following the filing of this instrument, nothing further was done for almost
three years, viz., until February 7, 1967, at which time the trial court
finally, and four years after the trial, entered what is termed a final decree,
quieting the title in the plaintiffs. As though this were not enough, some ten
months later the trial court entered an order allowing an extension for the
filing of the transcript, and even this was done with the direction that the
extension should be filed nunc pro tunc as of the 7th of July, 1967, the day
when the time for filing of the transcript in this court would have expired.
{3} In view of our
disposition of the case, we will say nothing further with respect to the so-called
nunc pro tunc order, except to call to the attention of the trial judge in this
case that nunc pro tunc has reference to the making of an entry now,
of
something which was actually previously done, so as to have it effective as
of the earlier date. It is not to be used to supply some omitted action of the
court or counsel, but may be utilized to supply an omission in the record of
something really done but omitted through mistake or inadvertence. State v.
Hatley,
72 N.M. 377,
384 P.2d 252 (1963). See, generally, Bouvier's Law
Dictionary 2385 (3d rev., vol. III, 1914), and Black's Law Dictionary 1218
(DeLuxe 4th ed. 1951). In the instant case, the action taken was obviously not
in conformity with any recognized usage of the term "nunc pro tunc."
{4} In any event, the final
decree as entered by the trial court after the four-year delay since the trial
in no sense complies with our rule requiring findings of fact and conclusions
of law to be filed as a separate instrument. Rule 52(B)(a)(2), (3) and (7) (§ 21-1-1(52)(B)(a)(2),
(3) and (7), N.M.S.A. 1953). The decree makes no attempt to comply with the
rules; in addition to other faults which we need not mention, it states:
"The Requested Findings of Fact and Conclusions of Law
of plaintiffs are adopted as such findings and conclusions of this court."
{5} Our reason in detailing
the above is to explain why we feel it necessary to take the action we do
today. Although we find the earlier delay inexcusable, it is impossible for us,
with fairness, to dispose of the appeal until the trial court performs its
required duty of making proper findings of fact and conclusions of law. The
whole gist of the appeal involves facts. The defendant made perhaps what was
the only type of attack possible, and that was a general attack on the findings
which were inconsistent with the defendant's position. In so doing, quite
naturally she failed to comply with the rule adopted by us as to attack on
findings, but it is quite understandable in view of the record why this method
was taken. However, it is not for us to search the record in order to determine
whether the long meandering findings which the court attempted to adopt by
reference are supported by substantial evidence.
{6} In connection with the
almost total failure on the part of the trial court to comply with the
provisions of Rule 52(B) above-mentioned, we take note of the fact that,
although our Rule 52 differs from the federal rule, nevertheless the reasons
for both rules are the same, i.e., as an aid to the appellate court by placing
before it the basis of the decision of the trial court; to require care on the
part of the trial judge in his consideration and adjudication of the facts; and
for the purposes of res judicata
{*90} and
estoppel by judgment. See, 2B Barron & Holtzoff, Federal Practice and
Procedure, §§ 1121-1123; and 5 Moore's Federal Practice (2d ed.) § 52.06(1). We
agree with the federal cases which, without exception, require adequate
findings and insist on the exercise of an independent judgment on the part of
the trial judge in making his own findings of fact rather than adopting those
of one of the parties. See, among others, Edward Valves, Inc. v. Cameron Iron
Works, Inc., 289 F.2d 355 (5th Cir. 1961); and United States v. Forness, 125
F.2d 928, 942 (2d Cir. 1942); as well as Featherstone v. Barash, 345 F.2d 246,
249 (10th Cir. 1965), where the court aptly stated:
"Proper and adequate findings of fact are not only
mandatory, but highly practical and salutory in the administration of justice.
It has been pointed out that the trial court is a most important agency of the
judicial branch of the government precisely because on it rests the
responsibility of ascertaining the facts. The Supreme Court recently
underscored the responsibility of the court with respect to findings, and was
critical of any indiscriminate dependence upon counsel in formulating them.
(Citing United States v. El Paso Natural Gas Co., et al., 376 U.S. 651, 84 S.
Ct. 1044, 12 L. Ed. 2d 12 (1964).) Whatever difficulties there may be under various
circumstances in the application of the 'clearly erroneous' rule in support of
the trial court's findings, these difficulties are immeasurably compounded by
dubious findings. And when findings wholly fail to resolve in any meaningful
way the basic issues of fact in dispute, they become clearly insufficient to
permit the reviewing court to decide the case at all, except to remand it for
proper findings by the trial court."
The above expression, as well as other comments in
Featherstone, is little different from the attitude expressed by us in Moore v.
Moore, 68 N.M. 207, 360 P.2d 394 (1961), where we remanded for new findings a
case involving a far less flagrant violation of the rule than that with which
we are here concerned. Compare, Lusk v. First Nat. Bank of Carrizozo, 46 N.M.
445, 448, 130 P.2d 1032 (1942).
{7} It is our considered
judgment that the cause must be remanded to the trial court in order that
proper findings of fact and conclusions of law may be entered of record. It
must be emphasized that subsection 7 of Rule 52 (B), supra, provides that
findings or conclusions not embraced in the trial judge's decision, even though
appearing elsewhere, "will be disregarded." Of course, the rule then
allows for a remand for proper findings "where the interests of justice
require," and it is in accordance with this provision that we take the
action here announced.
{8} The cause will be
remanded to the trial court with express direction that proper findings of fact
and conclusions of law, together with a judgment based thereon, be entered. It
will be further directed that there be compliance with this directive within
thirty (30) days from the date of the mandate herein, and that within ten (10)
days thereafter a supplemental transcript be filed in this cause and that no
extension for the preparation or the filing thereof will be granted.
Thereafter, the said cause will again be submitted to this court; additional
briefs may be filed; appellant will be allowed fifteen (15) days so to do and
appellees ten (10) days, with leave to appellant to file a reply brief, if
necessary, within five (5) days. Oral argument will be granted upon request of
either of the parties. Costs for the preparation of the supplemental transcript
shall be borne by the District Court of the Second Judicial District in and for
Bernalillo County.
M. E. Noble, C.J., Irwin S. Moise, J.