N.M. R. App. P. 12-101
N.M. R. App. P. 12-101
Committee commentary. - The citation format in Paragraph B of this rule complies with the Appendix to Rule 23-112 NMRA, which includes examples of correct forms of citation to be used in all papers and pleadings filed in New Mexico state courts.
[Adopted by Supreme Court Order No. 16-8300-011, effective for all cases pending or filed on or after December 31, 2016.]
.ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-011, effective December 31, 2016, broadened the scope of the rules to include all procedure in the Supreme Court and Court of Appeals, amended rule citations to comply with Rule 23-112 NMRA, and added the committee commentary; in Paragraph (A), after "procedure", deleted "in appeals to the supreme court and the court of appeals, in applications to the supreme court for extraordinary writs, in proceedings for the removal of public officials, in actions removed from the State Corporation Commission [public regulation commission] and in matters certified to the supreme court form the court of appeals or a federal court" and added "in the Supreme Court and the Court of Appeals"; and in Paragraph (B), changed "NMRA, 12-__" to "Rule 12 -___ NMRA", and changed "NMRA, 12-101" to "Rule 12-101 NMRA".
For references to state corporation commission being construed as references to the public regulation commission, see Laws 1998, ch. 108, § 80. For appeals under the Children's Code, see Section 32A-1-17 NMSA 1978. For federal rules, see Fed. R. App. P. Rules 1 and 48. I. GENERAL CONSIDERATION. Unquestioned power rests in supreme court to promulgate rules of pleading, practice and procedure. State v. Arnold, 1947-NMSC-043, 51 N.M. 311, 183 P.2d 845. Supreme court will construe its rules liberally so that causes on appeal may be determined on merits. Montgomery v. Cook, 1966-NMSC-073, 76 N.M. 199, 413 P.2d 477. In order that causes coming on for appeal may be reviewed on merits, former Supreme Court Rules were to be construed liberally. Fairchild v. United Serv. Corp., 1948 -NMSC-048, 52 N.M. 289, 197 P.2d 875. Court must look to exact wording of amendment to apply amended rule. Miller v. Doe, 1962-NMSC-113, 70 N.M. 432, 374 P.2d 305. II. CAUSES AND ACTIONS APPEALABLE. Supreme court cannot create right of appeal. - The creation of the right of appeal is a matter of substantive law, and is not within the rulemaking power of the supreme court. State v. Arnold, 1947-NMSC-043, 51 N.M. 311, 183 P.2d 845. The appellate rules do not confer the right to appeal since the right of appeal is a matter of substantive law outside of the supreme court's rule making authority. Sanchez v. Bradbury & Stamm Constr., 1989-NMCA-076, 109 N.M. 47, 781 P.2d 319. Generally, appeal only from formal written order or judgment. - In the absence of an express provision 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. Morris, 1961-NMSC-120, 69 N.M. 89, 364 P.2d 348. Oral ruling by trial judge is not a final judgment. - It is merely evidence of what the court has decided to do, as the judge can change such a ruling at any time before the entry of a final judgment. State v. Morris, 1961-NMSC-120, 69 N.M. 89, 364 P.2d 348. III. APPEALS SUBJECT TO RULES. "Otherwise provided by law". - Under former Rule 1, N.M.R. App. P. (Civ.) (see now this rule), Rule 27, N.M.R. App. P. (Civ.), (see now Rule 12-403 NMRA) was not applicable in situations otherwise provided for by law, and appeals from decisions of former tax commissioner were otherwise covered by 7-1-25B NMSA 1978, which provides that transcript costs in such proceedings should be borne by appellant taxpayer. New Mexico Bureau of Revenue v. Western Elec. Co., 1976 -NMSC-049, 89 N.M. 468, 553 P.2d 1275. IV. CRIMINAL PROCEEDINGS. Children's court matters not criminal proceedings. - The applicability of the former Rules of Appellate Procedure for Criminal, Children's Court, Domestic Relations Matters and Worker's Compensation Cases to appeals from judgments of the children's court where the child was alleged to be delinquent or in need of supervision did not change the fact that children's court matters are not criminal proceedings. Health & Social Servs. Dep't v. Doe, 1978-NMCA-045, 91 N.M. 675, 579 P.2d 801. District court loses jurisdiction to modify sentence in criminal cases upon appeal to the supreme court. State v. White, 1962-NMSC-139, 71 N.M. 342, 378 P.2d 379. Defendant's death while his appeal was pending did not require abatement of the criminal proceedings to their inception; rather, the court could permit the appeal to move forward and appoint defense counsel of record as defendant's substitute for the remainder of the proceeding. State v. Salazar, 1997-NMSC-044, 123 N.M. 778, 945 P.2d 996 overruling State v. Doak, 1976-NMCA-091, 89 N.M. 532, 554 P.2d 993. Where defendant was indicted by two separate grand juries; the two indictments were joined for trial; defendant was convicted of violating an order of protection; the district court declared a mistrial on the remaining charges because the jury was unable to reach a verdict; defendant appealed the conviction of violating an order of protection; and during the pendency of defendant's appeal, defendant was retried and convicted on the mistrial charges, defendant's appeal was limited to only the conviction of violating an order of protection and the district court retained jurisdiction to retry the unresolved charges. State v. Gutierrez, 2011-NMCA-088, 150 N.M. 505, 263 P.3d 282, cert. denied, 2011-NMCERT-008, 268 P.3d 513. Effect of defective appeal. - Where defendant appealed order of mistrial and mandate dismissing the appeal was filed after defendant's trial, the appeal did not deprive the trial court of jurisdiction because defendant's appeal of an order declaring mistrial was not an appeal of a final order, defendant did not file a proper application for interlocutory appeal, and the Court of Appeals did not grant an interlocutory appeal. State v. Lobato, 2006-NMCA-051, 139 N.M. 431, 134 P.3d 122, cert. denied, 2006-NMCERT-004. Law reviews. - For annual survey of civil procedure in New Mexico, see 18 N.M.L. Rev. 287 (1988). For survey of 1990-91 appellate procedure, see 22 N.M.L. Rev. 623 (1992). Am. Jur. 2d, A.L.R. and C.J.S. references. - 4 Am. Jur. 2d Appellate Review § 223 et seq.; 20 Am. Jur. 2d Courts §§ 1, 78 et seq. Erroneous decision as law of the case on subsequent appellate review, 87 A.L.R.2d 271. Right to institute or maintain appeal where client refuses to do so, 91 A.L.R.2d 618. When criminal case becomes moot so as to preclude review of or attack on conviction or sentence, 9 A.L.R.3d 462. Construction of contingent fee contract as regards compensation for services after judgment or on appeal, 13 A.L.R.3d 673. Appealability of order staying, or refusing to stay, action because of pendency of another action, 18 A.L.R.3d 400. Abatement effects of accused's death before appellate review of federal criminal conviction, 80 A.L.R. Fed. 446. 4 C.J.S. Appeal and Error § 1 et seq.; 21 C.J.S. Courts §§ 124 to 134.