STATE EX REL. REYNOLDS V. MCLEAN, 1964-NMSC-092,
74 N.M. 178, 392 P.2d 12 (S. Ct. 1964)
STATE of New Mexico ex rel. S. E.
REYNOLDS, State Engineer,
and Pecos Valley Artesian Conservancy District,
Plaintiffs-Appellees,
vs.
Joe P. McLEAN, Defendant-Appellant
SUPREME COURT OF NEW MEXICO
1964-NMSC-092, 74 N.M. 178, 392 P.2d 12
Suit for adjudication of water rights.
From an adverse decision of the District Court, Chaves County, E. T. Hensley,
Jr., D.J., the defendant appealed. The Supreme Court, Moise, J., held that
neither decision that report of special master relating to water rights would
be confirmed nor order denying requested findings in conflict with those made
was final or interlocutory order or judgment from which appeal could be taken,
in view of fact that no order was ever entered carrying into effect decision of
court.
H. C. Buchly, Roswell, for appellant.
Earl E. Hartley, Atty. Gen., Santa Fe,
Charles D. Harris, Special Asst. Atty. Gen., Roswell, for appellee.
Moise, Justice. Carmody and Chavez, JJ.,
concur.
{1} Appellant herein seeks a
review of proceedings affecting him in the suit for adjudication of water
rights in the Roswell Artesian Basin originally filed in 1956. Appellant and
his interests were brought in by orders 33 and 35 joining additional parties.
{2} After trial before the
Special Master, a report was duly filed by the Special Master. Appellant filed
his objections to the report. A hearing was had before the district judge, and
at its conclusion the court announced that the report would be confirmed. Both
appellant and appellee filed requested findings of fact and conclusions of law.
On January 16, 1963, the court filed its "Decision" and, on the same
day, an "Order" refusing and denying all requested findings and
conclusions in conflict with those made by it was entered. This was followed by
a motion for an appeal "from the order filed in the above entitled cause
on the 16th day of January, 1963," and an order allowing the appeal
therefrom. No other order or judgment affecting appellant or his rights appears
to have been entered.
{3} In this posture of the
case, is there a final appealable order or judgment so as to give us
jurisdiction?
{4} Section §21-2-1(5) (1),
N.M.S.A.1953, provides for appeals from final judgments. §21-2-1(5) (2),
N.M.S.A.1953, permits appeals from certain interlocutory judgments, orders, or
decisions. In the instant case we have neither a final judgment nor an
appealable interlocutory judgment, order or decision.
{5} In State ex rel. Reynolds
v. Sharp,
66 N.M. 192,
344 P.2d 943, we held that the order there entered
determining the amount, purpose, periods, place of use, and specific tract of
land to which it was appurtenant, was a final order and accordingly appealable.
The instant appeal arises out of the same proceeding, and if an order had been
entered, under the authority of that case it would have been appealable.
{6} The difficulty arises
because no order was ever entered carrying into effect the decision of the
court. In Zellers v. Huff,
57 N.M. 609,
261 P.2d 643, the defendants had been
adjudged guilty of contempt but no sentence had been imposed. We there said:
"In criminal cases, as well as civil, the judgment is
final for the purpose of appeal when it terminates the litigation on the merits
and leaves nothing to be done but to enforce by execution what has been
determined. (Citing cases). A sentence must be imposed to complete the
steps of the prosecution. Until sentence is imposed there is no finality of the
judgment. The sentence is the judgment. (Citing cases).
"In the instant case the adjudication of contempt of
court is plain and unequivocal, but since there was no judgment or sentence
pronounced, it was still pending and further judgment was necessary.
Consequently, it was not ripe for review as a right in any form."
{7} The last occasion we had
to consider this question arose in State v. Morris,
69 N.M. 89,
364 P.2d 348.
The following is quoted therefrom:
"In the absence of an express statute or rule, no appeal
will lie from anything other than a formal written order or judgment signed by
the judge and filed in the case or entered upon the records of the court and
signed by the judge thereof. State v. Thorne, 39 Wash.2d 63, 234 P.2d 528;
State v. McClain, 186 Tenn. 401, 210 S.W.2d 680.
An oral ruling by the trial judge is not a final judgment. It
is merely evidence of what the court had decided to do but he can change such
ruling at any time before the entry of a final judgment. State v. McClain,
supra."
{8} The situation is the same
whether the ruling is oral or stated in a "decision" and whether the
case is criminal or civil. §21-2-1(5) (3), N.M.S.A.1953.
{9} This attempted appeal is
premature and must be dismissed.