N.M. R. App. P. 12-201
N.M. R. App. P. 12-201
Committee commentary. - Rule 12-201 NMRA addresses the time within which a notice of appeal from an appealable order or judgment must be filed. In 2013, the committee amended Paragraphs D and E to clarify, codify, and to a limited extent reform current practice. Prior amendments to the rules of civil procedure and appellate procedure have largely eliminated the automatic denial of post-trial or post-judgment motions that extend the time to appeal-so-called "tolling" motions. The 2013 amendments were prepared in conjunction with amendments to the rules of civil procedure that address motions for reconsideration specifically and provide for a uniform thirty (30)-day filing period for post-trial or post-judgment motions brought under a procedural rule or under NMSA 1978, Section 39-1-1. The amendments to Paragraph D, in addition to adding clarity, address the effect of a withdrawn tolling motion on the time to appeal. They also address the efficacy of a notice of appeal that is filed before all timely filed post-trial or post-judgment tolling motions have been disposed of. The amendments allow the district court to dispose of any timely filed post-trial or post-judgment motion even if a notice of appeal has been filed; the notice does not divest the district court of jurisdiction to rule on the motion.
Paragraph A determines the basic time within which to appeal, which may be affected by tolling motions (Paragraph D) or by a motion for an extension of time (Paragraph E).
Paragraph B addresses cross-appeals. The three (3)-day period set forth in Rule 12-308(B) NMRA for certain kinds of service applies to the time limits for filing a notice of cross-appeal under Subparagraph (B)(1) of this rule.
Paragraph D addresses the effect of post-trial or post-judgment motions on the time to appeal. In 2016, the committee amended Paragraph D of this rule to clarify the effect in a criminal case of a timely filed motion that has the potential to affect the finality of the underlying judgment or sentence. As in civil cases, these motions render a criminal judgment or sentence non-final and toll the time to appeal until each motion is expressly disposed of, automatically denied, or withdrawn. See, e.g., State v. Suskiewich, 2014-NMSC-040, ¶ 17, 339 P.3d 614 ("[A] motion to reconsider filed within the permissible appeal period suspends the finality of an appealable order or judgment and tolls the time to appeal until the district court has ruled on the motion."); State v. Romero, 2014-NMCA-063, ¶ 13, 327 P.3d 525 (holding that the defendants' pending motions for sentence reconsideration made the underlying district court proceedings non-final and the appeals premature).
Most cases will fall under Subparagraph (D)(1), which gives effect to the common tolling motions that, if timely filed, extend the appeal time until the motion is disposed of by the district court. In addition, Subparagraph (D)(1) treats as a tolling motion a motion under Rule 1-060(B) NMRA, Rule 5-614 NMRA, or Rule 5-801(A) NMRA, if the motion is filed within thirty (30) days following the entry of the judgment.
Although most automatic denial provisions have been eliminated from the rules, see, e.g., 2006 amendment to Rule 1-059(D) NMRA; 2009 amendment to Rule 5-614 NMRA, or have been rendered inoperative, see Rule 1-054.1 NMRA and committee commentary, some remain, e.g., Rule 7-611(B) NMRA; Rule 10-252(D) NMRA. Subparagraph (D)(2) deals with cases in which a post-trial or post-judgment motion still subject to automatic denial may be filed. The last sentence of Subparagraph (D)(2) ensures that, in the event of a combination of post-trial or post-judgment motions in which some motions may be subject to automatic denial and some not, the appeal time does not begin to run until all timely filed post-trial or post-judgment motions have been disposed of either by automatic denial, where applicable, or by express written order.
Subparagraph (D)(3) recognizes a party's right to withdraw a pending post-trial or post-judgment motion and proceed directly to appeal. See also committee commentary to Rules 1-050, 1-052, 1-059, and 1-060 NMRA. Any tolling effect provided by the motion continues until the motion is withdrawn. The rule is intended to avoid a situation in which a party who elects to withdraw a post-trial or post-judgment motion inadvertently misses the appeal time. Cf. Vanderwerf v. SmithKline Beecham Corp., 603 F.3d 842 (10th Cir. 2010) (because motion withdrawn months after filing is treated as if it had never been made, appeal time was not tolled). Withdrawal of a tolling motion is without significance to the appeal time if other tolling motions remain pending. The rule does not address the effect that withdrawal of a post-trial or post-judgment motion may have on appellate issue preservation.
Subparagraph (D)(4) addresses when a notice of appeal that has been filed before all timely post-trial or post-judgment motions have been disposed of becomes effective. A timely motion listed in Subparagraphs (D)(1) or (D)(2) makes a final judgment non-final until the motion is expressly disposed of, automatically denied, or withdrawn, and a notice of appeal filed before that time arrives is premature. Grygorwicz v. Trujillo, 2009-NMSC-009, ¶ 8, 145 N.M. 650, 203 P.3d 865; Dickens v. Laurel Healthcare, LLC, 2009-NMCA-122, 147 N.M. 303, 222 P.3d 675. The district court retains jurisdiction to dispose of any and all timely post-trial or post-judgment motions listed in Subparagraphs (D)(1) or (D)(2), subject to any automatic denial of the motion or to withdrawal of the motion by the filing party, even after a notice of appeal has been filed. As long as the motion is timely, even if it is filed after the filing of the notice of appeal, the district court has jurisdiction to rule on it. This portion of the rule supersedes State v. McClaugherty, 2008-NMSC-044, ¶¶ 21-24, 144 N.M. 483, 188 P.3d 1234, which held that a district court does not have jurisdiction to rule on a post-judgment motion that is filed in the district court and directed against a final judgment when a timely notice of appeal has already been filed, transferring jurisdiction to the Court of Appeals. The change is intended to ensure that all timely post-trial and post-judgment motions are addressed by the district court before the case is transferred to an appellate court for review.
Under Subparagraph (D)(4), a notice of appeal from an underlying judgment or order that is prematurely filed before the disposition of all post-trial or post-judgment motions will eventually become effective to appeal the underlying judgment or order. Cf. Paragraph A (addressing filing of notice after ruling is announced but before filing of judgment or order). In these circumstances, the notice of appeal also brings up for review the disposition of any post-trial or post-judgment motion that has not been withdrawn. It is not necessary to attach any order disposing of a post-trial or post-judgment motion to a notice of appeal that was filed before the motion was disposed of in order to include the disposition of the motion within the scope of the appeal.
Paragraph E permits a party to move in the district court for an extension of the time for filing a notice of appeal by up to thirty (30) days beyond the time prescribed by Paragraphs A and D. The motion may be made before or after the prescribed time has expired and is subject to different standards depending on when it is filed. It may be filed before or after the notice of appeal has been filed. The motion must be filed not later than thirty (30) days after the expiration of the time prescribed by Paragraphs A and D. The notice of appeal must be filed within the maximum time allowable under Paragraph E. Therefore, a party must file a notice of appeal within thirty (30) days after the time prescribed by Paragraphs A and D expires, even if the party's motion for extension of time remains pending and the party does not know whether the motion will be granted. The district court may grant an extension of time retroactively, but only within the limits allowed by Paragraph E.
Nothing in Paragraph F precludes any relief that might be available under Paragraph E of this rule.
[Amended by Supreme Court Order No. 13-8300-032, effective for all cases pending or filed on or after December 31, 2013; as amended by Supreme Court Order No. 16-8300-014, effective for all cases pending or filed on or after December 31, 2016; as amended by Supreme Court Order No. 18-8300-016, effective for all cases pending or filed on or after December 31, 2018.]
.ANNOTATIONS The 2018 amendment, approved by Supreme Court Order No. 18-8300-016, effective December 31, 2018, added clarifying language regarding the additional 3-day period set forth in Rule 12-308(B) NMRA, and revised the committee commentary; in Subparagraph A(2), after "The", added "additional", after "(3)-day", deleted "mailing" and after "NMRA", added "for certain kinds of service"; and in Subparagraph D(6), after "(3)-day" deleted "mailing". The 2016 amendment, approved by Supreme Court Order No. 16-8300-014, effective December 31, 2016, increased the time within which a party may file a cross-appeal, added to the list of motions that have the potential to affect the finality of the underlying judgment or sentence and that have the effect of tolling the time for appeal under the Rules of Appellate Procedure, and revised the committee commentary; in Paragraph A, added the new subparagraph designation "(1)" and redesignated former Subparagraphs (1) and (2) as Subparagraphs (a) and (b), respectively; after Subparagraph A(1)(b), added the subparagraph designation "(2)"; in Subparagraph A(2), after "set forth in", deleted "Subparagraphs" and added "Subparagraph", and after "(1)", deleted "and (2)"; after the first sentence of Subparagraph A(2), added the subparagraph designation "(3)"; in Subparagraph A(3), after "filed after", deleted "such" and added "that", after "on the day", deleted "thereof" and added "of the filing"; deleted the last sentence of Subparagraph A(3) relating to cross-appeals; in Paragraph B, added new Subparagraph B(1), after Subparagraph B(1), added the new subparagraph designation "(2)"; in Subparagraph D(1), after "timely files a motion", added "that has the potential to affect the finality of the underlying judgment or sentence," and deleted "under Section 39-1-1 NMSA 1978, Rule 1-050(B) NMRA, Rule 1-052(D) NMRA, or Rule 1-059 NMRA, or files a motion under Rule 1-060(B) NMRA that is filed not later than thirty (30) days after the filing of the judgment", added "Those motions may include, but are not necessarily limited to, the following" and added new Subparagraphs A(D)(1)(a) through (c); in Subparagraph A(D)(6), after "Rule 12-308", added "(B)"; in Paragraph F, after "notice of appeal was sent to the", deleted "appellate court" and added "court in which it is to be filed"; and in the committee commentary, added the third and fourth paragraphs. The 2013 amendment, approved by Supreme Court Order No. 13-8300-032, effective December 31, 2013, extended the time for filing a notice of appeal when post-judgment motions are filed; provided the time for appeal when a post-trial or post-judgment motion is withdrawn; provided for the disposition of post-trial and post-judgment motions when a notice of appeal is filed before the motion is filed; clarified the language regarding motions for extensions of time to file a notice of appeal; provided for a grace period when a notice of appeal is sent by mail or commercial carrier; in Paragraph D, in the title, after "Post-trial", added "or post-judgment"; in Subparagraph (1), after "If", deleted "a" and added "any", after "files a motion", deleted "pursuant to" and added "under", after "Rule 1-059 NMRA", added "or files a motion under Rule 1-060(B) NMRA that is filed no later than thirty (30) days after the filing of the judgment", after "computed from the", deleted "entry" and added "filing", and after "expressly disposing of the", added "last such remaining"; in Subparagraph (2), in the first sentence, after "If", deleted "a" and added "any", after "files a motion", deleted "pursuant to" and added "under", after "computed from either the", deleted "entry" and added "filing", after "automatic denial of the", added "last such remaining", and added the second sentence; added Subparagraphs (3) and (4); in Subparagraph (6), after "apply to", deleted "the" and added "any" and after "time limits", deleted "set for the in" and added "under"; in Paragraph E, deleted the former title "Other extensions of time for appeal" and added the current title; in Subparagraph (1), deleted the former language, which authorized the district court, before the expiration of the time to file a notice of appeal, to grant an extension of time to file a notice of appeal upon a showing of good cause and added the current language; deleted former Subparagraph (2), which authorized the district court, after the expiration of the time to file a notice of appeal, to grant an extension of time to file a notice of appeal upon a showing of excusable neglect, and added a new Subparagraph (2); deleted former Subparagraph (3), which provided that the district court retained jurisdiction to rule on a motion for extension of time regardless of whether the notice of appeal had been filed. and added a new Subparagraph (3); deleted former Subparagraph (4), which prohibited the district court from granting an extension of time sixty days after the time an appealable order had been entered, and added a new Subparagraph (4); deleted Subparagraph (5), which provided that the three-day mailing period did not apply, and added a new Subparagraph (5); deleted Subparagraph (6), which required the party who obtained an extension of time to serve notice on the other parties, and added a new Subparagraph (6); and added Paragraph F. The 2006 amendment, approved by Supreme Court Order No. 06-8300-036, effective February 1, 2007, amended Paragraph D to delete motions based on newly discovered evidence filed pursuant to Rule 5-614 NMRA and include in a separate new sentence the language relating to the time for filing a notice appeal when a motion is automatically denied pursuant to a rule or statute. The 2005 amendment, approved by Supreme Court Order No. 05-8300-018, effective October 11, 2005, amended Paragraphs D and E to change the internal reference to from Paragraph B(2) to Paragraph D of Rule 1-052 NMRA. The 1999 amendment, effective for cases filed on and after January 1, 2000, added Paragraph A(1), designated the former first undesignated paragraph as Paragraph A(2), substituted "in Subparagraphs (1) and (2) of this paragraph in the undesignated paragraph following Paragraph A(2); in Paragraph E(4), added the last sentence to conform this rule to Chavez v. U-Haul of New Mexico, Inc., 1997-NMSC-051, 124 N.M. 165, 947 P.2d 122. The second 1998 amendment, effective December 4, 1998, added the last sentence in Subparagraph E(4). The first 1998 amendment, effective for pleadings due on or after April 1, 1998, inserted "or statement of the issues" following "docketing statement" in Paragraph C. The 1991 amendment, effective for cases filed in the supreme court and court of appeals on and after September 1, 1991, in Paragraph A, twice inserted "is filed in the district court clerk's office" and deleted "filing of" preceding both occurrences of "judgment or order"; rewrote Paragraph D; and, in Paragraph E, substituted the present heading for "Extensions of time", and deleted former Subparagraph (5), relating to automatic denial of post-trial motion if not granted within 30 days, and redesignated the subsequent subparagraphs accordingly.
For absolute right of aggrieved party to one appeal, see N.M. Const., art. VI, § 2. For appeal of certain interlocutory orders or decisions which do not practically dispose of merits but involve controlling questions of law, see Section 39-3-4 NMSA 1978. For appeals in contempt and habeas corpus proceedings, see Section 39-3-15 NMSA 1978. For federal rule, see Fed. R. App. P. Rule 4. I. GENERAL CONSIDERATION. Notice of appeal treated as a petition for writ of certiorari. - Where petitioner filed a notice of appeal twelve days after the entry of the district court's order affirming the Motor Vehicle Division's revocation of petitioner's driver's license pursuant to the Implied Consent Act; thirty-four days after the entry of the district court's order, petitioner filed a docketing statement requesting, for the first time, a writ of certiorari to review the district court's decision; and the district court's order was conflicting regarding whether the court exercised appellate or original jurisdiction, the Court of Appeals, in its discretion, could elect to treat the notice of appeal as a petition for a writ of certiorari because the notice of appeal was filed within twenty days after the district court's final action. Glynn v. New Mexico Taxation & Revenue Dep't, 2011-NMCA-031, 149 N.M. 518, 252 P.3d 742, cert. denied, 2011-NMCERT-003, 150 N.M. 619, 264 P.3d 521. Timeliness of appeal. - Where the district court entered an order in July 2004 adopting a special master's report concerning the calculation of child support and left open issues concerning attorney fees and entered an order in March 2007 that the court declared to be a final order for purposes of appeal, except as to the attorney fee issue, regardless of whether the July 2004 order disposed of the substantive issues of the case so as to be a final appealable order, because the attorney fee issue remained open, the appellant had the choice of appealing the July 2004 order or within thirty days after the attorney fee issue was decided. Thompson v. Dehne, 2009-NMCA-120,147 N.M. 283, 220 P.3d 1132. Timely appeal of untimely motion to reconsider. - Where the district court entered an order regarding the disqualification of the court-ordered arbitrator, defendants' motion to reconsider the district court's order, although not filed before the expiration of the time for appeal as required by Rule 1-060 NMRA, it was within the district court's discretion to determine that the late motion was not simply an attempt to evade the time for appeal, and therefore the district court did not abuse its discretion in ruling on defendants' motion to reconsider under Rule 1-060(B) NMRA, and defendants' appeal from the district court's denial of the motion to reconsider was not untimely. L.D. Miller Construction, Inc. v. Kirschenbaum, 2017-NMCA-030. Appeals from district court. - Appeals from the district court arising out of objection to a state engineer permit to transfer water rights under 72-7-3 NMSA 1978 are governed by Rule 12-201 NMRA rather than this rule. Town of Silver City v. Scartaccini, 2006-NMCA-009, 138 N.M. 813, 126 P.3d 1177. Compliance with applicable rules in perfecting appeal is jurisdictional requirement. Scott v. Newsom, 1964-NMSC-173, 74 N.M. 399, 394 P.2d 253. Court proposes to consider nonjurisdictional deviation from rules in each case as it arises; so far as jurisdictional defects are concerned there can be no exercise of discretion. Johnson v. Johnson, 1964-NMSC-233, 74 N.M. 567, 396 P.2d 181. When no appeal as of right, statute governs. - Since the state has no constitutional appeal as of right from a suppression order, the time for filing such an appeal is governed by the ten-day limit set forth in Subsection B(2) of 39-3-3 NMSA 1978 and not the thirty-day limit provided for in Paragraph A of this rule. State v. Alvarez, 1991-NMCA-115, 113 N.M. 82, 823 P.2d 324. Appellate court has duty to determine whether it has jurisdiction of appeal; it will examine record and, if required, will sua sponte question its jurisdiction. Rice v. Gonzales, 1968-NMSC-125, 79 N.M. 377, 444 P.2d 288. Timely filing of notice of appeal. - The appellate court cannot accept jurisdiction merely because issues of general public interest and fundamental personal due process rights are at stake. The timely filing of a notice of appeal under Paragraph A is jurisdictional. State ex rel. Human Servs. Dep't v. Jasso, 1987-NMCA-124, 107 N.M. 75, 752 P.2d 790. Dismissal of appeal is not warranted where there is a presumption of ineffective assistance of counsel. - An attorney who files a timely notice of appeal, but causes the appeal to be dismissed due to his inaction denies the defendant his constitutional right to appeal; the appellate court is not divested of jurisdiction because there is a conclusive presumption of ineffective assistance of counsel. State v. Lope, 2015-NMCA-011, cert. denied, 2014-NMCERT-010. Where defense counsel filed a timely notice of appeal of a suppression order, but failed to perfect the appeal by failing to obtain and attach a final written order denying the defendant's motion to suppress, the court of appeals determined that it had jurisdiction to entertain the appeal based on the conclusive presumption of ineffective assistance of counsel. State v. Lope, 2015-NMCA-011, cert. denied, 2014-NMCERT-010. Where defense counsel does not file a notice of appeal within the time limit, there is a conclusive presumption of ineffective assistance of counsel. - Where defense counsel attempted to fax file a notice of appeal from the district court order denying defendant's motion to suppress, but filed the notice in the wrong court and the filing was untimely, there is a presumption of ineffective assistance of counsel and dismissal of the appeal is not warranted. State v. Martinez, 2015-NMCA-051, cert. granted, 2015-NMCERT-005. Judicial error is circumstance permitting untimely appeal. - Although the court will not ordinarily entertain an appeal in the absence of a timely notice, judicial error is an unusual circumstance creating an exception that warrants permitting an untimely appeal; the court will not decline to hear the appeal because of a technical defect that it helped create. Romero v. Pueblo of Sandia, 2003-NMCA-137, 134 N.M. 553, 81 P.3d 490. Jurisdiction of trial court after notice of appeal. - A pending appeal does not divest the trial court of jurisdiction to take further action when the action will not affect the judgment on appeal and when, instead, the further action enables the trial court to carry out or enforce the judgment. The notice of appeal in this case did not deprive the judge of jurisdiction to permit the party to file its supplemental proposed findings, which had been submitted to the judge well before filing of the notice. Barela v. ABF Freight Sys., 1993-NMCA-137, 116 N.M. 574, 865 P.2d 1218. An order denying intervention is fundamentally interlocutory, although it is deemed final for purposes of allowing it to be immediately appealed. Appeal of order denying intervention does not divest district court of jurisdiction over the merits of the case. Murken v. Solv-Ex Corp., 2006-NMCA-064, 139 N.M. 625, 136 P.3d 1035. II. PARTIES ENTITLED TO APPEAL. Substantial interest required. - Only party who has real and substantial interest in subject matter before court and who is aggrieved or prejudiced by decision of trial court may appeal. Galvan v. Miller, 1968-NMSC-139, 79 N.M. 540, 445 P.2d 961. Parties may appeal only if they have real and substantial interest in subject matter before court and are aggrieved or prejudiced by the decision. Home Fire & Marine Ins. Co. v. Pan Am. Petroleum Corp., 1963-NMSC-094, 72 N.M. 163, 381 P.2d 675. Joint tortfeasor. - Defendant in damage suit was aggrieved party within meaning of former rule, where judgment notwithstanding verdict was granted in favor of codefendant, in view of right of contribution between joint tortfeasors. Marr v. Nagel, 1954-NMSC-071, 58 N.M. 479, 272 P.2d 681. Continued applicability of Marr v. Nagel, 1954-NMSC-071, is limited due to changes in the law regarding comparative negligence and joint liability. St. Sauver v. New Mexico Peterbilt, Inc., 1984-NMCA-024, 101 N.M. 84, 678 P.2d 712. Defendant not "aggrieved" by dismissal of codefendant. - In a multi-party tort action in which the claim against one defendant is dismissed for lack of jurisdiction, a codefendant is not an aggrieved party where his aggrievement depends on the contingency that the trial court will hold that joint and several liability is applicable. St. Sauver v. New Mexico Peterbilt, Inc., 1984-NMCA-024, 101 N.M. 84, 678 P.2d 712. Insurance company. - Insurance company which had advanced money to insured and had taken loan receipt was "aggrieved party" entitled to appeal from decision of trial court in suit brought by insurance company and insured against third-party tortfeasor. Home Fire & Marine Ins. Co. v. Pan Am. Petroleum Corp., 1963-NMSC-094, 72 N.M. 163, 381 P.2d 675. Sureties on appeal bond. - Where judgment was rendered against sureties on appeal bond filed in justice of peace court (now replaced by magistrate court) on appeal to district court, such sureties had right to appeal to supreme court from final order of district court affecting their substantial rights after final judgment had been entered in district court. Miller v. Oskins, 1927-NMSC-101, 33 N.M. 109, 263 P. 764. III. APPEALABLE JUDGMENTS AND ORDERS. A. IN GENERAL. Pending post-judgment motion. - When a motion that challenges the district court's determination of the rights of the parties is pending in the district court, the judgment or order entered by the district court remains non-final. Dickens v. Laurel Healthcare, LLC, 2009-NMCA-122, 147 N.M. 303, 222 P.3d 675. Where plaintiff filed a Rule 1-059(E) motion to amend the district court's judgment; plaintiff did not file a reply to the responses to the motion; plaintiff did nothing to have the motion addressed by the district court; plaintiff did not claim on appeal that the district court erred by failing to rule on the motion; and the district court had not ruled on the motion before plaintiff filed the notice of appeal, the judgment entered by the district court was not final for purposes of appeal. Dickens v. Laurel Healthcare, LLC, 2009-NMCA-122, 147 N.M. 303, 222 P.3d 675. Appeals will lie only from formal written order or judgment signed by judge and filed in case, or entered upon record of court and signed by judge. Bouldin v. Bruce M. Bernard, Inc., 1967-NMSC-155, 78 N.M. 188, 429 P.2d 647; Curbello v. Vaughn, 1966-NMSC-179, 76 N.M. 687, 417 P.2d 881; Harrison v. ICX, Illinois-California Express, Inc., 1982-NMCA-089, 98 N.M. 247, 647 P.2d 880. Where record failed to disclose judgment, order or decision, final or interlocutory, appeal would be dismissed upon motion. Cornett v. Fulfer, 1919-NMSC-074, 26 N.M. 175, opinion on rehearing, 1920-NMSC-062, 26 N.M. 368, 189 P. 1108. Purpose of finality requirement. - Policy behind rules and statutes preventing appeals from anything but final judgments or orders which substantially dispose of merits is to discourage piecemeal litigation. Floyd v. Towndrow, 1944-NMSC-052, 48 N.M. 444, 152 P.2d 391; Burns v. Fleming, 1944-NMSC-006, 48 N.M. 40, 145 P.2d 861; Foster v. Addington, 1944-NMSC-029, 48 N.M. 212, 148 P.2d 373. Test of appealability. - The test of whether a judgment is final, so as to permit the taking of an immediate appeal, lies in the effect the judgment has upon the rights of some or all of the parties. Bralley v. City of Albuquerque, 1985-NMCA-043, 102 N.M. 715, 699 P.2d 646. Complete disposition of issues. - Judgment or order is not final unless all issues of law and of fact necessary to be determined were determined, and case completely disposed of so far as court has power to dispose of it. Clancy v. Gooding, 1982-NMCA-096, 98 N.M. 252, 647 P.2d 885. Judgment, order or decree, to be final for purposes of appeal or error, must dispose of cause, or distinct branch thereof, as to all parties, reserving no further questions or directions for future determination. Marr v. Nagel, 1954-NMSC-071, 58 N.M. 479, 272 P.2d 681. Petition in probate usually considered independent proceeding. - Each petition in a probate file should ordinarily be considered as initiating an independent proceeding, so that an order disposing of the matters raised in the petition should be considered a final, appealable order. When the subject matter of two petitions overlap, it would generally be appropriate to consider both petitions as belonging to the same proceeding. In re Estate of Newalla, 1992-NMCA-084, 114 N.M. 290, 837 P.2d 1373. Doctrine of practical finality applied. - Where a county commissioner, who was a first cousin of a landowner, refused to recuse and voted for the landowner's application for a zone change; the district court reversed the decision of the county commission relying on the kinship-based disqualification of Article VI, Section 18 of the New Mexico Constitution and remanded the case for hearing by the county commission without the disqualified commissioner's participation, the appeal from the order of the district court was allowed to proceed pursuant to the doctrine of practical finality because the question of the application of the kinship-based disqualification was of continuing importance to the board of county commissioners hearing the zone change on remand and to other such bodies statewide and appellate review of the issue of disqualification would spare the parties to the zone change time and expense. Los Chavez Cmty. Ass'n v. Valencia Cnty., 2012-NMCA-044, 277 P.3d 475. District court's order in zone change arose from the court's exercise of original jurisdiction. - Where a county commissioner, who was a first cousin of a landowner, refused to recuse and voted for the landowner's application for a zone change, and the district court reversed the decision of the county commission relying on the kinship-based disqualification of Article VI, Section 18 of the New Mexico Constitution and remanded the case for hearing by the county commission without the disqualified commissioner's participation, the district court's decision involved a constitutional question of due process and the appeal was a direct appeal as of right from the district court's exercise of its original jurisdiction rather than pursuant to a discretionary petition for writ of certiorari from the district court's exercise of its appellate jurisdiction. Los Chavez Cmty. Ass'n v. Valencia Cnty., 2012-NMCA-044, 277 P.3d 475. B. SPECIFIC JUDGMENTS AND ORDERS. Stipulated conditional directed verdict. - An appeal will lie from a stipulated conditional directed verdict when the following conditions are satisfied: (1) rulings are made by the district court, which the parties agree are dispositive; (2) a reservation of the right to challenge those rulings on appeal; (3) a stipulation to entry of judgment; and (4) approval of the stipulation by the district court. Kysar v. BP America Production Co., 2012-NMCA-036, 273 P.3d 867. Where the district court prohibited plaintiffs from mentioning, in plaintiffs' opening statement to the jury, appellate court opinions in prior litigation between the parties and granted defendant's motions in limine to exclude evidence in support of plaintiffs' claim; the parties stipulated that in light of the district court's decisions and evidentiary rulings that a reasonable jury would not have a legally sufficient evidentiary basis to find for plaintiffs on plaintiffs' claims and stipulated to the entry of a judgment in favor of defendants on all of plaintiff's claims; plaintiffs reserved the right to challenge on appeal the district court's decisions and rulings that prevented them from proving a prima facie case; and the stipulation was approved by the district court, plaintiffs had a right of appeal from the stipulated directed verdict. Kysar v. BP America Production Co., 2012-NMCA-036, 273 P.3d 867. Order granting emergency writ of prohibition. - Where the State filed a criminal complaint in magistrate court that did not contain a sworn statement of facts and subsequently filed an amended complaint after the statute of limitations had expired; the district court determined that the initial complaint was invalid, that the amended complaint was filed outside the statutes of limitations period, and that the magistrate court could not proceed with the case because it lacked jurisdiction; and the district court entered an order granting defendant's emergency petition for writ of prohibition and remanded the case to the magistrate court for entry of an order dismissing the case, the district court's order granting the writ of prohibition was a final, appealable order. State v. Valerio, 2012-NMCA-022, 273 P.3d 12, cert. denied, 2012-NMCERT-001. Refusal of district court to grant de novo hearing in appeal from magistrate court. - Where the magistrate court revoked defendant's probation, and on appeal, the district court determined that there had not been a full hearing in the magistrate court and that defendant was not entitled to a de novo hearing in district court, the district court's order remanding the case to magistrate court was a final order for purposes of appeal under the doctrine of practical finality because the order determined the question at issue on appeal which was whether defendant was entitled to a de novo hearing in district court. State v. Begay, 2010-NMCA-089, 148 N.M. 685, 241 P.3d 1125, overruled by State v. Radosevich, 2018-NMSC-028. Guardianship order was final. - Where the court entered a written order denying respondent's motion to set aside a guardianship; the order contained a list of findings reflecting most, but not all, of the court's oral decision; the order lacked decretal language; respondent was the parent of the ward; and the delay caused by remanding the case would substantially affect respondent's parental rights and prolong a case that was marked by substantial delay, the order was a final, appealable order. Burris-Awalt v. Knowles, 2010-NMCA-083, 148 N.M. 616, 241 P.3d 617. Effect of defendant's preemptive revelation of a prior conviction on appellate review. - The Court of Appeals may consider the admissibility of criminal convictions for impeachment purposes where the defendant, as a tactical matter, elects to preemptively introduce such evidence after having objected to its admissibility and obtaining a ruling from the district court. State v. Allen, 2014-NMCA-047, cert. denied, 2014-NMCERT-002. Where defendant was charged with criminal sexual contact with several minors; in the first prosecution, defendant entered a plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970); the district court accepted the plea, but declined to adjudicate guilt until resolution of the second case; in the second prosecution, the State filed a motion for adjudication of guilt in the first prosecution and indicated that the State would inquire whether defendant was a convicted felon if defendant testified in the second prosecution; defendant objected to the motion; the district court entered an adjudication of guilt against defendant in the first prosecution and ruled that the conviction would be available for impeachment purposes in the second prosecution; and when defendant testified in the second prosecution, defense counsel asked if defendant had been convicted of a felony and defendant admitted defendant's prior felony conviction, by preemptively revealing the prior conviction in the second prosecution, defendant did not waive defendant's right to appeal the district court's adjudication of guilt in the first prosecution as it applied to the second prosecution. State v. Allen, 2014-NMCA-047, cert. denied, 2014-NMCERT-002. Criminal sentence. - A plea agreement may not waiver the right to challenge on appeal whether a sentence was imposed without jurisdiction. State v. Tafoya, 2010-NMSC-019, 148 N.M. 391, 237 P.3d 693. Appeal of limitation of good time credit. - Where defendant pled guilty to first degree murder and entered into a plea agreement; in the plea agreement, defendant specifically waived defendant's right to appeal as long as the court's sentence was imposed according to the terms of the plea agreement; the plea agreement provided that the court had discretion in sentencing defendant anywhere from probation up to a life sentence which was defined as a thirty year sentence before possibility of parole and without any good time credit followed by 5 years parole; and defendant was sentenced as a serious youthful offender to thirty years imprisonment, with ten years suspended, and four days good time credit eligibility per month, defendant could appeal the limitation on good time credit on the grounds that the court did not have jurisdiction to limit the good time credit. State v. Tafoya, 2010-NMSC-019, 148 N.M. 391, 237 P.3d 693. Order referring issues to arbitration is a final, appealable order if it is the last deliberative action of the court with respect to the controversy before it. Where, however, the court leaves open the possibility that it would need to later rule on the substantive claims before it, the court did not dispose of the case or divest itself of the power to further rule on case issues and the order referring issues to arbitration was not a final, appealable order. Edward Family Ltd. Partnership v. Brown, 2006-NMCA-083, 140 N.M. 104, 140 P.3d 525, cert. denied, 2006-NMCERT-005. Conditional plea entered in magistrate court. - The preferred procedure for appeal to the Court of Appeals after a conditional plea is entered in magistrate court is for the district court to issue a final and appealable order dismissing the appeal or to issue an order granting the motion to suppress. State v. Celusniak, 2004-NMCA-070, 135 N.M. 728, 93 P.3d 10. Temporary injunction. - Test to determine if temporary injunction entered after full trial of issues was appealable was whether parties to suit contemplated further proceedings. Texas Pac. Oil Co. v. A.D. Jones Estate, Inc., 1967-NMSC-193, 78 N.M. 348, 431 P.2d 490. Order dismissing party's entire complaint, without authorizing or specifying a definite time for leave to file an amended complaint, is a final order for purposes of appeal. Bralley v. City of Albuquerque, 1985-NMCA-043, 102 N.M. 715, 699 P.2d 646. Order compelling arbitration was a final order from which defendants were obligated to appeal within 30 days. Lyman v. Kern, 2000-NMCA-013, 128 N.M. 582, 995 P.2d 504, cert. denied, 128 N.M. 688, 997 P.2d 820. Failure to enter order denying motion for new trial. - Where district court failed to enter an order denying defendant's motion for a new trial within thirty days, the motion was deemed automatically denied and defendant could challenge the denial of the motion on appeal even though a final, written order denying the motion had not been filed by the district court. State v. Huber, 2006-NMCA-087, 140 N.M. 147, 140 P.3d 1096, cert. denied, 2006-NMCERT-007. Workers' compensation judge's order allowing examination. - Where a workers' compensation judge stated in its order that the only pending issue before it was whether the worker could see a particular doctor, and the order allowed for such an examination, the order was final and appealable. Flores v. J.B. Henderson Constr., 2003-NMCA-116, 134 N.M. 364, 76 P.3d 1121. Dismissal "without prejudice" for failure to exhaust administrative remedies is a final order necessitating a timely appeal in order to preserve appellate review. Bralley v. City of Albuquerque, 1985-NMCA-043, 102 N.M. 715, 699 P.2d 646. Summary judgment is final order and final orders are appealable. Ortega v. Shube, 1979-NMCA-130, 93 N.M. 584, 603 P.2d 323, overruled on other grounds, Bracken v. Yates Petroleum Corp., 1988-NMSC-072, 107 N.M. 463, 760 P.2d 155. Summary judgment for third-party defendant. - Summary judgment in favor of third-party defendant became appealable final judgment upon entry of judgment in favor of plaintiff and against defendant - third-party plaintiff, because at that point all claims had been adjudicated. Mabrey v. Mobil Oil Corp., 1972-NMSC-023, 84 N.M. 272, 502 P.2d 297, cert. denied, 83 N.M. 740, 497 P.2d 742. Default judgment entered against defendants was final judgment, as was order denying defendants' motion to vacate same, and both were appealable. Gallegos v. Franklin, 1976-NMCA-019, 89 N.M. 118, 547 P.2d 1160, cert. denied, 89 N.M. 206, 549 P.2d 284. Order overruling motion to set aside default judgment was appealable. Wooley v. Wicker, 1965-NMSC-065, 75 N.M. 241, 403 P.2d 685. Setting aside of final judgment. - Order setting aside a final judgment 119 days after entry affected a substantial right and was appealable. Singleton v. Sanabrea, 1930-NMSC-092, 35 N.M. 205, 292 P. 6. Refusal to set aside judgment. - Order of district court overruling motion of sureties on appeal bond to recall execution and set aside judgment affirming that of justice of the peace court (now magistrate court) was a final order affecting the substantial right of the sureties, made after entry of a final judgment, and supreme court had jurisdiction to hear appeal therefrom. Miller v. Oskins, 1927-NMSC-101, 33 N.M. 109, 263 P. 764. See also Miller v. Oskins, 1929-NMSC-013, 33 N.M. 660, 275 P. 97. Vacation of entered judgments. - Orders vacating judgments previously entered so as to permit new pleadings or trial are final and may be appealed. Starnes v. Starnes, 1963-NMSC-081, 72 N.M. 142, 381 P.2d 423; Scott v. J.C. Penney Co., 1960-NMSC-068, 67 N.M. 219, 354 P.2d 147. Vacation of voidable judgment. - Judgment of a district court purporting to vacate a previous judgment of that court which, though voidable, was not void, was a final judgment. Weaver v. Weaver, 1911-NMSC-013, 16 N.M. 98, 113 P. 599. Dismissal of appeal to district court. - Judgment of district court dismissing an appeal from a justice of the peace (now magistrate) was a final judgment. Oskins v. Miller, 1927-NMSC-100, 33 N.M. 104, 263 P. 766. Dismissal of an appeal from a probate court by district court under former probate law was final judgment and appeal could be had therefrom. Grim v. Proctor, 1943-NMSC-039, 47 N.M. 307, 142 P.2d 544. Order in show cause hearing. - Order entered in show cause hearing after attorney and client city failed to obey certain order in main action, which order held attorney and city jointly and severally liable for certain attorney's fees, was final judgment appealable under Subdivision (a)(1) of former Rule 3, N.M.R. App. P. (Civ.) as to attorney, since proceeding against him was independent of main action; order against city would be held appealable on same basis as order against attorney. Miller v. City of Albuquerque, 1975-NMCA-099, 88 N.M. 324, 540 P.2d 254, cert. denied, 88 N.M. 318, 540 P.2d 248. Child neglect. - Proceeding relating to care and custody of neglected children is civil action, not special proceeding, and judgment therein is reviewable. Blanchard v. State ex rel. Wallace, 1924-NMSC-017, 29 N.M. 584, 224 P. 1047. Permissive appeal of children's court order. - Order of children's court, denying motion to dismiss petition which sought to extend custody over delinquent child for one year, was not appealable under Rule 5 of former Supreme Court Rules, but was appealable under 39-3-4 NMSA 1978. In re Doe, 1973-NMCA-141, 85 N.M. 691, 516 P.2d 201. Master's sale. - Decree for sale of mortgaged property ordering that specific sum of money be paid to plaintiffs, that master or trustee sell premises and that case remain pending in court awaiting master's report was final decree. Lohman v. Cox, 1899-NMSC-001, 9 N.M. 503, 56 P. 286, overruled on other grounds, Field v. Otero, 1930-NMSC-060, 35 N.M. 68, 290 P. 1015. Confirmation of foreclosure sale. - Order confirming a foreclosure sale is a final order affecting a substantial right, made after final judgment, and is appealable. Shortle v. McCloskey, 1934-NMSC-074, 38 N.M. 548, 37 P.2d 800. Entry of deficiency judgment after sale. - Order entering personal deficiency judgment after sale is a final order affecting a substantial right made after the entry of final judgment, and jurisdiction to make such order is not cut off by appeal. Armijo v. Pettit, 1930-NMSC-018, 34 N.M. 559, 286 P. 827. Overruling of motion to vacate sale. - Order which overruled a motion to vacate a commissioner's sale and confirmation thereof could be treated as an appealable order only on theory that it was a final order affecting a substantial right made after the entry of final judgment and application for allowance of appeal therefrom was made too late. Hess v. Wheeling-Lordsburg Copper Co., 1942-NMSC-016, 46 N.M. 195, 125 P.2d 344. Mandamus to compel payment of judgment. - Order making writ of mandamus to compel payment of money judgment permanent was final order made after entry of final judgment, affected substantial rights of appellant state highway commission [state transportation commission] and was appealable. State ex rel. State Hwy. Comm'n v. Quesenberry, 1963-NMSC-113, 72 N.M. 291, 383 P.2d 255; State ex rel. State Hwy. Comm'n v. Quesenberry, 1964-NMSC-043, 74 N.M. 30, 390 P.2d 273. Will contest. - Supreme court had jurisdiction of appeal from district court dismissing will contest, where by long usage and acquiescence, right had become firmly established. In re Morrow's Will, 1937-NMSC-008, 41 N.M. 117, 64 P.2d 1300. Compensation allowance and sale order. - Decree allowing compensation to master and attorney and in default of payment, ordering sale of property in order to create fund for payment, was final and appealable judgment. Neher v. Crawford, 1901-NMSC-007, 10 N.M. 725, 65 P. 156. Sale of estate's realty. - Decree for sale of real estate of deceased person to pay debts and order confirming same constituted final judgments from which appeal or writ of error could be taken. Cooper v. Brownfield, 1928-NMSC-039, 33 N.M. 464, 269 P. 329. Appointment of receivers. - Order that receiver be appointed, and order appointing joint receivers, taken together, amount to "final decree." Cooper v. Otero, 1934-NMSC-008, 38 N.M. 164, 29 P.2d 341. Decree granting injunction and appointing receiver for insolvent corporation was final decree. Eagle Mining & Imp. Co. v. Lund, 1910-NMSC-064, 15 N.M. 696, 113 P. 840; Sacramento Valley Irrigation Co. v. Lee, 1910-NMSC-049, 15 N.M. 567, 113 P. 834. Rate order case not moot. - While it is not within province of appellate court to decide abstract, hypothetical or moot questions where no actual relief can be afforded, nevertheless, so long as intrastate freight rate order appealed from had vitality and could be given implementation, even temporarily, case was not moot and was entitled to consideration. Atchison, T. & S.F. Ry. v. SCC, 1969-NMSC-014, 79 N.M. 793, 450 P.2d 431. IV. NONAPPEALABLE JUDGMENTS AND ORDERS. A. IN GENERAL. Case to be completely disposed of. - Unless all issues of law and fact necessary to be determined were determined and the case completely disposed of so far as the court might do so, the judgment or decree was not final in contemplation of former rule. Floyd v. Towndrow, 1944-NMSC-052, 48 N.M. 444, 152 P.2d 391. Order is not final where parties and court consider it a nonfinal order. Hernandez v. Home Educ. Livelihood Program, Inc., 1982-NMCA-079, 98 N.M. 125, 645 P.2d 1381. Oral ruling by trial judge is not final judgment, but merely evidence of what court had decided to do, which decision court can change at any time before entry of final judgment. Bouldin v. Bruce M. Bernard, Inc., 1967-NMSC-155, 78 N.M. 188, 429 P.2d 647. Oral rulings are not final and therefore not a proper basis for an appeal. There was no final order denying reinstatement until the Judge issued a written order on November 23, 1992. Nor was the worker's motion for reinstatement deemed denied by operation of law under Section 39-1-1 NMSA 1978. The worker's motion for reinstatement was not filed pursuant to Section 39-1-1 NMSA 1978, but was instead filed pursuant to Rule 1-041E NMRA, which does not contain a provision saying that motions filed pursuant to it are deemed denied is not acted upon within a certain amount of time. Vigil v. Thriftway Mktg. Corp., 1994 -NMCA-009, 117 N.M. 176, 870 P.2d 138. Order denying objection of change of physician in workers compensation. - A judge's order denying a request, or an objection, to change health care provider is not final and appealable when a claim for benefits is pending before the workers compensation administration. Kellewood v. BHP Minerals Int'l, 1993-NMCA-148, 116 N.M. 678, 866 P.2d 406. Entry of erroneous order of dismissal does not commence time for appeal. - Where trial court erroneously entered an order dismissing criminal charges on grounds that state's evidence failed to support a verdict, but rather had intended to dismiss the charges for lack of venue, the dismissal order was nonappealable by the state and did not correctly reflect the trial court's ruling on improper venue, the time for appeal by the state did not run from the original dismissal order and the state's post-dismissal motions suspended the finality of the original dismissal order and delayed the time for filing an appeal until the trial court disposed of the state's motions. State v. Roybal, 2006-NMCA-043, 139 N.M. 341, 132 P.3d 598, cert. denied, 2006-NMCERT-003. Order quashing peremptory writ of mandamus was not a final, appealable order where the writ directed the respondent public official to answer the petition for writ and where the answer raised issues of fact which the court had to resolve to determine if the public official had a clear duty to perform a ministerial act and whether he was performing that act. Mimbres Valley Irrigation Co. v. Salopek, 2006-NMCA-093, 140 N.M. 168, 140 P.3d 1117. B. MULTIPLE PARTIES OR CLAIMS. Action involving multiple claims as single judicial unit. - Where the action involves multiple claims, an order or decision is not final if it adjudicates less than all claims in the action, unless the trial court makes: (1) an express determination that there is no reason for delay, and (2) an express direction for entry of judgment. Absent such express determination and order, a multiple claims action is treated in its entirety as a single judicial unit, and the adjudication of one or more of such multiple claims, but less than all of them, is not a final judgment or order, and therefore, is not appealable. Aetna Cas. & Sur. Co. v. Miles, 1969-NMSC-056, 80 N.M. 237, 453 P.2d 757. Summary judgment for fewer than all defendants. - Where one claim is asserted against two defendants, the dismissal of one defendant by summary judgment was neither a final appealable judgment nor interlocutory order practically disposing of the merits of the action. Lopez v. Hoffman, 1967-NMSC-020, 77 N.M. 396, 423 P.2d 429. Judgment dismissing one of two defendants in case was not appealable final judgment. Platco Corp. v. Colonial Homes, Inc., 1967-NMSC-122, 78 N.M. 35, 428 P.2d 9. Appeal from an order dismissing the complaint as to one or more of the several defendants is not appealable until all issues are resolved as to all other defendants, where theories of liability are closely related. Klinchok v. Western Sur. Co. of Am., 1962-NMSC-135, 71 N.M. 5, 375 P.2d 214. Where the theory of liability of one defendant is so related to or connected with that of the other defendants that one affects the other, an appeal from a dismissal of complaint as to one or more defendants may not be had until all issues are resolved as to other defendants. Klinchok v. Western Sur. Co. of Am., 1962-NMSC-135, 71 N.M. 5, 375 P.2d 214. Where justice of the peace (now magistrate) was alleged to have acted beyond the scope of his authority in issuing a writ of execution directed against plaintiff's goods and plaintiff sought damages for assault, battery and false arrest committed by the server of the writ, summary judgments which were granted in favor of justice of the peace (now magistrate) and his surety were not appealable, since action against writ server was still pending, as liability of justice of the peace (now magistrate) and his surety was dependent upon the establishment of acts alleged to have been committed by writ server; summary judgments were not final judgments or orders which practically disposed of the merits of the action. Chavez v. Atkinson, 1967-NMCA-005, 78 N.M. 130, 428 P.2d 985. Direction of verdict for one defendant not appealable. - Where, in entering judgment on a directed verdict in favor of one of two defendants, the trial court did not make an express determination under former Rule 54, N.M.R. Civ. P. (see now Rule 1-054 NMRA), that no just reason existed for delay in entry of judgment, trial court retained jurisdiction to revise same at any time before the entry of the judgment adjudicating all the claims; and because power to alter the judgment was reserved, it was not one that practically disposed of the merits of the action, and was not appealable. Nichols v. Texico Conference Ass'n of Seventh Day Adventists, 1967-NMCA-012, 78 N.M. 310, 430 P.2d 881. If issues interrelated. - In a personal injury suit against two defendants, if the determination of the issues relating to one defendant will or may affect the determination of the issues relating to the other, directed verdict in favor of one is not appealable absent final judgment, since there is but one claim against both defendants and judgment in favor of one is neither a final judgment on that claim nor an interlocutory order which practically disposes of the merits of the action. Nichols v. Texico Conference Ass'n of Seventh Day Adventists, 1967-NMCA-012, 78 N.M. 310, 430 P.2d 881. C. OTHER JUDGMENTS AND ORDERS. Rulings leading to a stipulated conditional directed verdict. - Where the district court prohibited plaintiffs from mentioning, in plaintiffs' opening statement to the jury, appellate court opinions in prior litigation between the parties and granted defendant's motions in limine to exclude evidence in support of plaintiffs' claim; the district court entered a judgment approving the parties' stipulated conditional directed verdict; there was no trial; no offers of proof were made by plaintiffs; and no evidence was ever presented to the jury, the appellate court had no basis or context for reviewing whether the exclusion of the statements and evidence constituted error or was prejudicial. Kysar v. BP America Production Co., 2012-NMCA-036, 273 P.3d 867. Decision without entry of order. - No appeal could be had from announcement by district court, after water rights hearing, that special master's report would be confirmed and conflicting requested findings denied, where no order carrying court's decision into effect was entered. State ex rel. Reynolds v. McLean, 1964-NMSC-092, 74 N.M. 178, 392 P.2d 12. Temporary custody order. - Writ of error sued out by grandparent of child, with whom he was living, when a petitioner in habeas corpus proceeding was awarded temporary custody for the purpose of transporting child out of state and presenting him before another state court at a scheduled custody hearing would be dismissed because the temporary custody order was not a final judgment or an interlocutory judgment, order or decision which practically disposed of the merits of the action. Angel v. Widle, 1974-NMSC-061, 86 N.M. 442, 525 P.2d 369. Temporary restraining order. - As a general rule, a temporary restraining order is interlocutory and not appealable as a final order. State ex rel. Dep't of Human Servs. v. Natural Mother, 1982-NMCA-042, 97 N.M. 707, 643 P.2d 271. Where the children's court denied the application for a temporary restraining order after a disposition and judgment and the order denying the application affected the mother's substantial rights to visitation and to move her child out of state, the appellate court had jurisdiction to review the order denying the application for the temporary order. State ex rel. Dep't of Human Servs. v. Natural Mother, 1982-NMCA-042, 97 N.M. 707, 643 P.2d 271. Temporary injunction. - Order granting a temporary injunction, until the final disposition of the case, does not practically dispose of the merits of the action, and is not appealable. Griffin v. Jones, 1919-NMSC-043, 25 N.M. 603, 186 P. 119. Imposition of fine for injunction violation. - Order imposing a fine payable by way of reimbursement to the opposite party for violation of a preliminary injunction was interlocutory, and could be reviewed only after final decree. Costilla Land & Inv. Co. v. Allen, 1910-NMSC-044, 15 N.M. 528, 110 P. 847. Denial of motion for stay in taking deposition not appealable final judgment. - Denial of motion for protective order which sought to have court order a stay in taking of deposition of patient seeking to perpetuate testimony until such time as court first determined competency of patient as witness was not an appealable final judgment, and was not appealable as interlocutory order where order did not comply with 39-3-4 NMSA 1978. In re Bartow, 1984-NMCA-074, 101 N.M. 532, 685 P.2d 387. Order striking motion to quash replevin. - Interlocutory order striking motion to quash writ of replevin was not appealable as an order practically disposing of the merits of the action. Stephenson v. Board of Cnty. Comm'rs, 1918-NMSC-102, 24 N.M. 486, 174 P. 739. Denial of motion to quash garnishment. - Order denying a motion to quash a writ of garnishment was neither a final judgment nor an interlocutory judgment, order or decision practically disposing of the merits of the action, and was not appealable. Cornett v. Fulfer, 1920-NMSC-062, 26 N.M. 368, 189 P. 1108 (opinion on rehearing). Denial of motion for default judgment in garnishment. - Denial of a motion for a default judgment in a garnishment proceeding is not an appealable order. Peña v. Trujillo, 1994-NMCA-034, 117 N.M. 371, 871 P.2d 1377. Vacation of suit consolidation. - Order vacating a consolidation of employers' liability insurer's cause of action against a third-party with that of the injured employee is not appealable. Kandelin v. Lee Moor Contracting Co., 1933-NMSC-058, 37 N.M. 479, 24 P.2d 731. Order denying motion to amend complaint is not final for purposes of appeal. Clancy v. Gooding, 1982-NMCA-096, 98 N.M. 252, 647 P.2d 885. Where the plaintiff did not demonstrate that her cause of action would be effectively lost or irreparably damaged as a result of an order denying her motion to amend, the order was not final and was not reviewable. Clancy v. Gooding, 1982-NMCA-096, 98 N.M. 252, 647 P.2d 885. Denial of motion to dismiss complaint. - Order denying defendant city's motion to dismiss was not appealable, as it was a part of the main action; no final judgment or interlocutory order which practically disposed of the merits had been entered and the order did not contain the requisite finding on which to base an application for an interlocutory appeal under 39-3-4 NMSA 1978. Miller v. City of Albuquerque, 1975-NMCA-099, 88 N.M. 324, 540 P.2d 254, cert. denied, 88 N.M. 318, 540 P.2d 249. Order denying a motion for leave to dismiss a cause, filed by a plaintiff, did not practically dispose of the merits of the action and was not appealable. Otto-Johnson Mercantile Co. v. Garcia, 1918-NMSC-050, 24 N.M. 356, 174 P. 422. Order denying a motion to dismiss a petition or a complaint is not appealable, because such is not a final judgment nor an interlocutory judgment, order or decision as practically disposes of the merits of the action. Public Serv. Co. v. Wolf, 1967-NMSC-170, 78 N.M. 221, 430 P.2d 379. Judgment overruling plea of res judicata cannot be appealed as it does not finally dispose of the action. Foster v. Addington, 1944-NMSC-029, 48 N.M. 212, 148 P.2d 373. Dismissal without prejudice is not a final order and is not appealable. Ortega v. Transamerica Ins. Co., 1977 -NMCA-106, 91 N.M. 31, 569 P.2d 957. Order overruling demurrer. - Order overruling demurrer did not decide the merits of the action and was not appealable before judgment. Wanser v. Fuqua, 1942-NMSC-027, 46 N.M. 217, 126 P.2d 20. Order sustaining demurrer. - Order sustaining a demurrer to a complaint, without further action by the court finally disposing of the cause, was not a final judgment reviewable by the supreme court. Morrison v. Robinson, 1919-NMSC-049, 25 N.M. 417, 184 P. 214. Order sustaining a demurrer to a complaint was not a final judgment reviewable on appeal. Cutler & Neilson Paint Color Co. v. Hinman, 1907-NMSC-012, 14 N.M. 62, 89 P. 267. Striking of counterclaim. - Where in addition to a stricken counterclaim, appellants had answered with numerous defenses which remained to be determined by the trial court, so that the trial court's order striking the counterclaim did not practically dispose of the merits, appeal from striking of counterclaim would not be permitted. Floyd v. Towndrow, 1944-NMSC-052, 48 N.M. 444, 152 P.2d 391. Order to strike an amended counterclaim filed in answering a complaint in action on a note was not a final judgment. Floyd v. Towndrow, 1944-NMSC-052, 48 N.M. 444, 152 P.2d 391. Ruling on motion to strike. - Ruling on a motion to strike generally is not appealable unless it has the practical effect of disposing of the merits. Floyd v. Towndrow, 1944-NMSC-052, 48 N.M. 444, 152 P.2d 391. Denial of motion to dismiss defense. - Order denying a motion to dismiss one of three defenses fell far short of disposing of the merits of a workmen's compensation action, its effect being to permit the defense to stand until issue was determined at trial, and hence, the order was not appealable. Duran v. Transit Remanufacturing Corp., 1963-NMSC-190, 73 N.M. 139, 386 P.2d 237. Denial of motion to prevent entry of judgment. - Order denying motion seeking to prevent entry of final judgment prior to retrial or a new trial of all matters relating to injunctive relief against trespass by electric cooperative was not appealable, since after condemnation proceedings gave defendant cooperative right of possession to go on plaintiffs' land, injunction was without authority and subject to dissolution. Hall v. Lea Cnty. Elec. Coop., 1966 -NMSC-066, 76 N.M. 229, 414 P.2d 211, cert. denied, 78 N.M. 792, 438 P.2d 632 (1968). Ballot recount order. - Appeal from an order directing a recount of ballots in a municipal election vested no jurisdiction in the supreme court because such an appeal was not from a final judgment nor from an interlocutory judgment, order or decision practically disposing of the merits of the action. Hampton v. Priddy, 1945-NMSC-001, 49 N.M. 1, 154 P.2d 839. Order dispensing with adoption consent. - Defendant's appeal from an order of the district court dispensing with necessity for her consent to the adoption of her two children was not timely, since the merits of the action were not disposed of with such order, hearing on the final adoption not yet having been held, and supreme court was without jurisdiction absent necessary determination and order of the trial court. In re Quintana, 1971-NMSC-070, 82 N.M. 698, 487 P.2d 126 (1971), subsequent appeal, 1972-NMSC-038, 83 N.M. 772, 497 P.2d 1404. Judgment or order which reserves issue of assessment of damages for future determination is not a final order for purposes of appeal. Cole v. McNeill, 1984-NMCA-126, 102 N.M. 146, 692 P.2d 532. Order dismissing punitive damage claim is not appealable. North v. Public Serv. Co., 1982 -NMCA-012, 97 N.M. 406, 640 P.2d 512. Order favoring intervener. - Order of default against a plaintiff and in favor of intervener (defendant having disclaimed any interest in the automobile in question), which granted intervener the full relief prayed for upon proof sustaining allegations of his petition was nonappealable. Packard Westchester Co. v. Zolko Co., 1935-NMSC-073, 39 N.M. 467, 49 P.2d 1133. Partition order. - Judgment in a statutory partition suit declaring the rights of all the parties, ordering partition and appointing commissioners for such purpose was an interlocutory decree and not appealable. Torrez v. Brady, 1930-NMSC-101, 35 N.M. 217, 292 P. 901. Order of judicial sale. - An order granting defendant's motion pursuant to former Rule 60(b), N.M.R. Civ. P. (see now Rule 1-060B NMRA) and ordering a judicial sale was not a final, appealable order, where further action was contemplated by the trial court, i.e., the foreclosure and sale of a vehicle and a determination of the method of distributing the proceeds of the sale. Waisner v. Jones, 1986-NMCA-005, 103 N.M. 749, 713 P.2d 565, rev'd on other grounds, 1988-NMSC-049, 107 N.M. 260, 755 P.2d 598. Decree establishing lien priorities. - Decree establishing the priority of liens and directing a sale by the receiver, with proceeds to be held subject to the further court order was not a final decree. Bateman v. Gitts, 1913-NMSC-023, 17 N.M. 619, 133 P. 969. Appeal of contempt sui generis. - Appeal of judgment in civil contempt under Rule 5(2) of former Supreme Court Rules was sui generis, and was in no sense based on finality of judgment; purpose was to provide speedy determination of judgment in contempt. Zellers v. Huff, 1953-NMSC-091, 57 N.M. 609, 261 P.2d 643. Imposition of sentence for contempt prerequisite to appeal. - Where no sentence has yet been imposed for civil contempt judgment, appeal therefrom is premature and must be dismissed. Zellers v. Huff, 1953-NMSC-091, 57 N.M. 609, 261 P.2d 643. Where no sentence is imposed subsequent to a contempt finding, such finding is not subject to appeal. Henderson v. Henderson, 1979-NMSC-075, 93 N.M. 405, 600 P.2d 1195. Contempt judgment entered after decree not reviewable therewith. - On appeal of final decree, judgment in a contempt proceeding originating subsequent to the decree was not reviewable. Canavan v. Canavan, 1913-NMSC-013, 17 N.M. 503, 131 P. 493. Vacation of order. - In workmen's compensation case, where material issue was whether defendant company was self-insurer by virtue of certain certificate, and company filed answer claiming to be such only after judge entered order sustaining validity of certificate, subsequent vacation of that order insofar as it related to particular plaintiff did not practically dispose of merits of action, and was not appealable. Transit Remanufacturing Corp. v. Duran, 1963-NMSC-191, 73 N.M. 141, 386 P.2d 238. Striking of motion to vacate default. - Appeal does not lie from an order striking a motion to vacate an order entering defendant's default and leaving the cause for hearing ex parte. Winans v. Bryan, 1928-NMSC-052, 33 N.M. 532, 271 P. 469. Imposition of conditions for vacation of judgment. - Appeal will not lie from an order of court imposing terms as a condition precedent to the vacating of a judgment, as it is not a final judgment. Board of Cnty. Comm'rs v. Blackington, 1902-NMSC-011, 11 N.M. 360, 68 P. 938. Refusal to amend judgment or order. - As a general rule, where an appeal may properly be taken from a judgment, order or decree, but has not been taken, a subsequent order refusing to amend or modify the judgment, order or decree is not appealable. Public Serv. Co. v. First Jud. Dist. Ct., 1959 -NMSC-002, 65 N.M. 185, 334 P.2d 713. Judgment on application to amend erroneous decree. - Application to amend a decree entered through inadvertence is a final order affecting a substantial right made after final judgment, and hence a judgment on such application is not a final judgment denying relief on the merits. Alamogordo Imp. Co. v. Palmer, 1923-NMSC-054, 28 N.M. 590, 216 P. 686. Order awarding a new trial is ordinarily not appealable. In re Richter's Will, 1938-NMSC-057, 42 N.M. 593, 82 P.2d 916. Order which set aside verdict and interrogatories for contradictoriness and granted a new trial could not be appealed. Cockrell v. Gilmore, 1964-NMSC-053,74 N.M. 66, 390 P.2d 655. Where motions for judgment n.o.v. and new trial are made in the alternative, and no judgment has been rendered on the verdict, order granting new trial renders verdict a nullity and is not appealable. Scott v. J.C. Penney Co., 1960-NMSC-068, 67 N.M. 219, 354 P.2d 147. Order granting new trial, entered upon timely motion filed by plaintiff following judgment upon jury verdict in defendant's favor, was not appealable. Warren v. Zimmerman, 1971-NMCA-039, 82 N.M. 583, 484 P.2d 1293, cert. denied, 82 N.M. 562, 484 P.2d 1272. Order granting remittitur or new trial is not ordinarily final judgment disposing of the merits of the action, and is not appealable. Hudson v. Otero, 1969-NMSC-125, 80 N.M. 668, 459 P.2d 830; Nally v. Texas-Arizona Motor Freight, Inc., 1960-NMSC-066, 67 N.M. 153, 353 P.2d 678. Order denying motion for new trial is ordinarily not appealable. Public Serv. Co. v. First Jud. Dist. Ct., 1959 -NMSC-002, 65 N.M. 185, 334 P.2d 713; Harrison v. ICX, Illinois-California Express, Inc., 1982-NMCA-089, 98 N.M. 247, 647 P.2d 880. Denial of motions for new trial and decree amendment. - Denial of motions for new trial and to amend final injunction decree based on matters which could be reviewed by supreme court on appeal from final judgment itself are not final orders affecting substantial rights and are not appealable. Public Serv. Co. v. First Jud. Dist. Ct., 1959 -NMSC-002, 65 N.M. 185, 334 P.2d 713. Motion for reconsideration or new trial. - The denial of a motion for reconsideration or in the alternative for a new trial is not appealable. Labansky v. Labansky, 1988-NMCA-045, 107 N.M. 425, 759 P.2d 1007. Order refusing to amend or modify judgment. - Where an appeal may properly be taken from a judgment, but has not been taken, a subsequent order refusing to amend or modify the judgment is not appealable, since the denial order merely confirms the finality of the judgment. State ex rel. Human Servs. Dep't v. Jasso, 1987-NMCA-124, 107 N.M. 75, 752 P.2d 790. Order reopening claim for workmen's compensation was not an appealable order. Davis v. Meadors-Cherry Co., 1957-NMSC-093, 63 N.M. 285, 317 P.2d 901. Denial of petition for habeas corpus. - Petitioner had no right to appeal to supreme court from denial by district court of petition for writ of habeas corpus. State of California v. Clements, 1972-NMSC-035, 83 N.M. 764, 497 P.2d 975. Ruling on party's standing to appeal. - Where a cause relating to the administration of an estate, under former probate procedure, had been removed from the probate court to the district court, and appellee requested the district court to try certain issues de novo, the ruling of the district court that he was an "interested person" to appeal to the supreme court from an adverse ruling was not appealable as an interlocutory decision practically disposing of the merits. In re Romero's Estate, 1934-NMSC-032, 38 N.M. 308, 31 P.2d 999 (1934). Review of nonappealable matters on appeal of final judgment. - As orders entered on procedural motions that do not practically dispose of the case on the merits, in this case, orders limiting discovery, are not of themselves appealable, such errors were properly before the appellate court on the appeal of the summary judgment. Griego v. Grieco, 1977-NMCA-018, 90 N.M. 174, 561 P.2d 36). V. FILING NOTICE. Appeal treated as filed after final judgment. - An appeal filed after the announcement of a decision, but before the final judgment is filed, will be treated as filed after the final judgment. Healthsource, Inc. v. X-Ray Assocs., 2005-NMCA-097, 138 N.M. 70, 116 P.3d 861, cert. denied, 2005-NMCERT-007. Time for notice of appeals. - In jury trial cases where one of the parties files a post-trial motion for judgment as a matter of law, the time for filing a notice of appeal does not begin to run until the district court enters an order ruling on the motion. Valley Bank of Commerce v. Hilburn, 2005-NMCA-004, 136 N.M. 741, 105 P.3d 294. Timely filing of a notice of appeal is jurisdictional. Public Serv. Co. v. Wolf, 1967-NMSC-170, 78 N.M. 221, 430 P.2d 379; Rivera v. King, 1988-NMCA-093, 108 N.M. 5, 765 P.2d 1187. Timely filing of an appeal is a jurisdictional requirement. Miller v. Doe, 1962-NMSC-113, 70 N.M. 432, 374 P.2d 305. Failure to obtain timely allowance of an appeal pursuant to former appellate procedure was jurisdictional. Cook v. Mills Ranch-Resort Co., 1926-NMSC-029, 31 N.M. 514, 247 P. 826; Chavez v. Village of Cimarron, 1958-NMSC-145, 65 N.M. 141, 333 P.2d 882; Adams v. Tatsch, 1961-NMSC-085, 68 N.M. 446, 362 P.2d 984; Scott v. Newsom, 1964-NMSC-173, 74 N.M. 399, 394 P.2d 253; Morales v. Cox, 1965-NMSC-111, 75 N.M. 468, 406 P.2d 177. Failure to perfect timely appeal is jurisdictional. Breithaupt v. State, 1953-NMSC-012, 57 N.M. 46, 253 P.2d 585; State v. Weddle, 1967-NMSC-027, 77 N.M. 417, 423 P.2d 609; State v. Navas, 1967-NMSC-198, 78 N.M. 365, 431 P.2d 743; State v. Sisk, 1968-NMSC-087, 79 N.M. 167, 441 P.2d 207; State v. Sedillo, 1970-NMCA-070, 81 N.M. 622, 471 P.2d 192. Where the record indicates an appeal was not filed within the time provided by the applicable rules and there is no claim that a basis exists for avoiding the effect of the rules, the court of appeals is without jurisdiction to hear the appeal. State v. Martinez, 1973-NMCA-040, 84 N.M. 766, 508 P.2d 36. When a notice of appeal is not timely filed, the court has no jurisdiction to consider the merits of the issue raised. Brazfield v. Mountain States Mut. Cas. Co., 1979 -NMCA-100, 93 N.M. 417, 600 P.2d 1207, cert. denied, 93 N.M. 205, 598 P.2d 1165. Employer's appeal from the district court's denial of its claim against the subsequent injury fund was dismissed by the court of appeals for lack of jurisdiction, where the employer filed its notice of appeal with the court of appeals instead of with the district court. Torres v. Smith's Mgt. Corp., 1990-NMCA-022, 111 N.M. 547, 807 P.2d 245. A notice of appeal and an amended notice of appeal both filed on June 25, 2002 from a district court's dismissal order of October 3, 2001 was filed well within the thirty-day requirement. Sam v. Estate of Sam, 2004-NMCA-018, 135 N.M. 101, 84 P.3d 1066. Such as where notice filed one day late. - Where the notice of appeal is filed one day late, the supreme court is without jurisdiction to hear the appellant's appeal. State v. Brinkley, 1967-NMSC-124, 78 N.M. 39, 428 P.2d 13. Late filing of appeal. - Because timely filing of an appeal is a mandatory precondition rather than an absolute jurisdictional requirement, a trial court may, under unusual circumstances, use its discretion and entertain an appeal even though it is not timely filed. The decision to dismiss an appeal is extreme and must be determined on a case-by-case basis. Trujillo v. Serrano, 1994-NMSC-024, 117 N.M. 273, 871 P.2d 369. Court error may excuse late appeal. - One unusual circumstance which would warrant permitting an untimely appeal is if the delay is a result of judicial error. To deny a party the constitutional right to an appeal because of a mistake on the part of the court runs against the most basic precepts of justice and fairness. Trujillo v. Serrano, 1994-NMSC-024, 117 N.M. 273, 871 P.2d 369. Tolling of appeal period. - Motions to reconsider filed within the permissible appeal period suspend the finality of an appealable order or judgment and toll the time to appeal until the district court has ruled on the motion. State v. Suskiewich, 2014-NMSC-040. Untimely notice of appeal. - Where State's motion to reconsider district court's order suppressing evidence was filed outside the permissible ten-day appeal period set forth in Paragraph A(1) of this rule, the motion did not toll the appeal period, and the State's notice of appeal, filed nine days after the denial of the motion to reconsider, was untimely. State v. Suskiewich, 2014-NMSC-040. Time period required by rule applicable to order denying post-conviction relief. - An appeal from an order denying a motion for post-conviction relief is dismissed because not taken within the required time period and the court is hence without jurisdiction to consider the matter further. State v. Weddle, 1966-NMCA-001, 79 N.M. 252, 442 P.2d 210. The defendant's attempt to seek appellate review of the propriety of the judge's finding on post-conviction relief comes too late where the judge's finding for which relief is sought was made several months prior to the motion. Maimona v. State, 1971-NMCA-002, 82 N.M. 281, 480 P.2d 171. Time limitation on appeals not affected by constitutional right to appeal. - The time element relating to appeals is not affected by N.M. Const., art. VI, § 2, providing for the absolute right to one appeal. State v. Garlick, 1969-NMSC-068, 80 N.M. 352, 456 P.2d 185. Presumption of ineffective assistance of counsel. - The conclusive presumption of ineffective assistance of counsel established in State v. Duran, 1986-NMCA-125, 105 N.M. 231, 731 P.2d 374 applies to appeals from a de novo trial in district court following a conviction in magistrate or municipal court. State v. Cannon, 2014-NMCA-058, cert. denied, 2014-NMCERT-006. Where defendant was convicted of aggravated DWI by a jury in magistrate court; defendant timely appealed the conviction to district court and filed a demand for a jury trial; the district court denied defendant's request for a jury trial; at a bench trial, the district court found defendant guilty of DWI; and defendant filed an untimely notice of appeal with the district court, defense counsel was conclusively presumed to be ineffective. State v. Cannon, 2014-NMCA-058, cert. denied, 2014-NMCERT-006. Presumption of ineffective assistance of counsel applies to failure to file a timely notice of appeal. - A criminal defendant, whose counsel files an untimely notice of appeal from the district court's on-record review of a metropolitan court decision, is entitled to a conclusive presumption of ineffective assistance of counsel. State v. Vigil, 2014-NMCA-096, cert. granted, 2014-NMCERT-009. Presumption of ineffective assistance of counsel for failure to timely file a notice of appeal still applies after four years of inaction. - The first and foremost reason that the passage of time alone does not prevent application of the presumption of ineffective assistance of counsel for failure to timely file a notice of appeal is based on the fundamental premise that the rights implicated by the presumption, the right to appeal and the right to effective assistance of counsel, protect a defendant's fundamental liberty interest in a fair trial. This interest is no less significant after the deadline for appeal than it was before the deadline, nor does it diminish over time, and therefore where defendant appealed from a stipulated corrected sentence that was entered four years after the original judgment and sentence, after which defendant filed neither an appeal nor an affidavit of waiver, the presumption of ineffective assistance of counsel for failure to file a timely notice of appeal still applied. State v. Dorais, 2016-NMCA-049, cert. denied. Untimely notice waived where counsel ineffective. - Where the untimeliness of a criminal defendant's appeal was the consequence of ineffective assistance of counsel, the appeal was treated as if the notice had been filed in a timely fashion, from both the judgment and from the deemed denial of the motion to withdraw his plea of no contest. State v. Peppers, 1990-NMCA-057, 110 N.M. 393, 796 P.2d 614. Counsel's error failure to file notice of appeal or request an extension within the thirty-day time limit prescribed by this rule constituted ineffective assistance of counsel, and did not strip the court of jurisdiction to hear the appeal. State ex rel. Children, Youth & Families Dep't v. Ruth Anne E., 1999-NMCA-035, 126 N.M. 670, 974 P.2d 164. Where defendant's counsel filed a notice of appeal sixty-two days after the entry of an order revoking defendant's probation and failed to timely file a motion for an extension of time; the Court of Appeals determined that defendant had a right to counsel at the probation revocation hearing because defendant raised issues that required assistance of counsel, the filing of the notice of appeal was defendant's counsel's responsibility because it is only after the filing of the docketing statement that trial counsel's responsibility to the client ceases, defendant had a fundamental liberty interest at stake in the revocation of defendant' probation that entitled defendant to minimal due process, and defendant had a right to appeal the revocation which defendant had not waived, the Court of Appeals presumed that defendant's counsel's failure to timely file a notice of appeal was per se ineffective assistance of counsel and considered defendant's appeal as if timely filed. State v. Leon, 2013-NMCA-011, 292 P.3d 493, cert. granted, 2012-NMCERT-012. As supreme court authorized to reduce time. - It is within the rulemaking power of the supreme court to reduce the time for taking an appeal once the legislature has authorized an appeal, since the regulation of the manner and time for taking an appeal is a procedural matter. State v. Arnold, 1947-NMSC-043, 51 N.M. 311, 183 P.2d 845. Place of filing jurisdictional. - An appellant who filed a notice of appeal with the clerk of the court of appeals rather than with the clerk of the district court did not comply with the place-of-filing requirement of Paragraph A of Rule 12-202 NMRA. Thus, the court was without jurisdiction to consider the appeal. Lowe v. Bloom, 1990-NMSC-069, 110 N.M. 555, 798 P.2d 156 overruling Martinez v. Wooten Construction Co., 1989-NMCA-074, 109 N.M. 16, 780 P.2d 1163 (to the extent it holds otherwise). Filing of notice of appeal "in open court" on the thirtieth day following judgment constituted substantial compliance with the thirty-day filing requirement, even though the appeal was not filed in the clerk's office until a week later. Williams v. Board of Cnty. Comm'rs, 1998-NMCA-090, 125 N.M. 445, 963 P.2d 522, cert. denied, 125 N.M. 654, 964 P.2d 818. Jurisdiction of appeal cannot be conferred by waiver or consent of the parties. Evans v. Barber Super Mkts., Inc., 1961-NMSC-092, 69 N.M. 13, 363 P.2d 625. Parties cannot by stipulating confer jurisdiction upon the supreme court. Wanser v. Fuqua, 1942-NMSC-027, 46 N.M. 217, 126 P.2d 20. Rule that unless the appeal is taken within 30 days, the supreme court has no jurisdiction, is not discretionary nor can it be waived. William K. Warren Found. v. Barnes, 1960-NMSC-069, 67 N.M. 187, 354 P.2d 126. Where no final judgment has been entered, appeal is premature and must be dismissed. Curbello v. Vaughn, 1966-NMSC-179, 76 N.M. 687, 417 P.2d 881. Notice of appeal filed before entry of judgment is premature and, therefore, not timely. Public Serv. Co. v. Wolf, 1967-NMSC-170, 78 N.M. 221, 430 P.2d 379. Attempted taking or granting of appeal prior to entry of judgment is premature. Cook v. Mills Ranch-Resort Co., 1926-NMSC-029, 31 N.M. 514, 247 P. 826; D.M. Miller & Co. v. Slease, 1925-NMSC-021, 30 N.M. 469, 238 P. 828. Premature filing and notice valid. - Plaintiff was justified in filing and serving notice of appeal prematurely but making notice effective as of the date when judgment was actually filed, where, due to the prior delays which had occurred, plaintiff had good cause to believe that the time for signing and filing the judgment would be indefinite and that plaintiff would not be notified of the date that the judgment would be filed; however, this type of filing was not to be approved under normal circumstances. Weiss v. Hanes Mfg. Co., 1977 -NMCA-076, 90 N.M. 683, 568 P.2d 209, cert. denied, 90 N.M. 3, 569 P.2d 413. Time for taking appeal begins to run when judgment is entered. King v. McElroy, 1933-NMSC-035, 37 N.M. 238, 21 P.2d 80. Notice when motion for attorney's fees pending. - In cases in which a motion for attorney's fees is filed after the entry of judgment but before the expiration of the time for filing of a notice of appeal, the appellant may elect to file a timely notice of appeal from the judgment or to file a timely notice of appeal from the trial court's resolution of the supplemental matter of attorney's fees. Executive Sports Club v. First Plaza Trust, 1998-NMSC-008, 125 N.M. 78, 957 P.2d 63. Notice filed before judgment entered but after sentencing hearing held timely. - Where defendant filed his notice of appeal prior to entry of judgment and sentence but after a sentencing hearing, at the end of which the district court announced its disposition, defendant perfected a timely appeal from a final judgment. State v. Ortiz, 1986-NMCA-131, 105 N.M. 308, 731 P.2d 1352. Party could not deprive adversary of full period for appeal by imposing consolidation for single judgment of suit providing for a limited appeal with adversary's previously filed suit providing a longer period of appeal, over adversary's protest. Palmer v. Town of Farmington, 1919-NMSC-003, 25 N.M. 145, 179 P. 227. Unexplained delay after mailing. - Where counsel was diligent and acted within ample time to accomplish timely allowance of appeal under former appellate procedure, and order allowing same was mailed in more than enough time to have reached clerk of supreme court, unexplained fact that it was filed one day late would not overcome presumption of receipt in due course of mail. Adams v. Tatsch, 1961-NMSC-085, 68 N.M. 446, 362 P.2d 984. Untimely appeal. - Application for the allowance of an appeal, under former appellate procedure, from an interlocutory judgment, made 80 days after entry, came too late. State ex rel. Sandoval v. Taylor, 1939-NMSC-013, 43 N.M. 170, 87 P.2d 681. Where the district court's orders denying an intervention motion and approving the final settlement were filed on June 27, 2002 and the thirtieth day fell on a weekend, the notice of appeal was due Monday, July 29, 2002. An appeal filed on July 30 was one day late. Wilson v. Massachusetts Mut. Life Ins. Co., 2004 -NMCA-051, 135 N.M. 506, 90 P.3d 525, cert. denied, 2004-NMCERT-004. On appeal from judgment awarding damages for taking of property under the Conservancy Act pursuant to 73-17-17 NMSA 1978, supreme court was without jurisdiction to consider rulings assigned as error, the appeal not having been taken within the 30 days prescribed by that statute. Albuquerque Gun Club v. Middle Rio Grande Conservancy Dist., 1937-NMSC-092, 42 N.M. 8, 74 P.2d 67. Res judicata where time for appealing formal testacy had run. - Where the time for appealing a formal testacy order had run, the distribution of the estate was res judicata absent fraud or jurisdictional error. In re Estate of Kemnitz, 1981-NMCA-013, 95 N.M. 513, 623 P.2d 1027. Notice of cross-appeal timely. - Notice of cross-appeal filed on Monday following expiration on Saturday of 15-day (now 10-day) period after service of notice of appeal was timely. Sierra Life Ins. Co. v. First Nat'l Life Ins. Co., 1973 -NMSC-079, 85 N.M. 409, 512 P.2d 1245. Premature filing and notice valid. - Appellate court had jurisdiction to review a modification to a permit to operate a hazardous waste disposal site even though the notice of appeal was prematurely filed, because, under Paragraph A of this rule, a premature notice of appeal was treated as if filed as of the date of the order being appealed. Southwest Research & Info. Ctr. v. State, 2003-NMCA-012, 133 N.M. 179, 62 P.3d 270. Child abuse and neglect cases. - Because the adjudication of abuse and neglect can have a serious impact on a parent's fundamental interest in the care, custody and management of a child, and because a parent has the right to effective assistance of counsel in abuse and neglect adjudications, the court will presume that counsel was ineffective where a notice of appeal from an adjudication of abuse and neglect is filed late and will accept jurisdiction over the appeal. State ex rel. CYFD v. Amanda M., 2006-NMCA-133, 140 N.M. 578, 144 P.3d 139. VI. CROSS-APPEALS. Rule controls over statute. - This rule, which requires a party to file cross-appeals not later than ten days following notice of appeal, controls over Section 39-3-8 NMSA 1978, allowing 15 days to file a cross appeal. Rodriguez v. McAnally Enters., 1994-NMCA-025, 117 N.M. 250, 871 P.2d 14. Purpose of cross-appeal. - Rule 7(2) of former Supreme Court Rules (similar to third sentence of Paragraph A of this rule) contemplated cross-appeal to review rulings which were prejudicial to appellee, regardless of outcome of appeal proper. Frederick v. Younger Van Lines, 1964-NMSC-156, 74 N.M. 320, 393 P.2d 438. Cross-appeal could be had where party timely applied therefor. Montgomery v. Cook, 1966-NMSC-073, 76 N.M. 199, 413 P.2d 477. Timely notice of initial appeal. - The plain language of Paragraph A makes the additional ten-day period of time within which to file a cross-appeal contingent upon the filing of a timely notice of the initial appeal. Shain v. Birnbaum, 1991-NMCA-092, 112 N.M. 700, 818 P.2d 1224. Notice of cross-appeal timely. - Where plaintiff served his notice of appeal by mail on Friday, February 6, defendants' ten days in which to file their notice of cross-appeal did not end until Friday, February 20 and, because they had been served by mail, they still had an additional three days in which to file their notice of cross-appeal. Powers v. Miller, 1999-NMCA-080, 127 N.M. 496, 984 P.2d 177. Misnamed cross-appeal not dismissed. - Application for cross-appeal denominated "notice of cross-appeal" would not be dismissed. Montgomery v. Cook, 1966-NMSC-073, 76 N.M. 199, 413 P.2d 477. Failure of one party to cross-appeal not fatal. - Failure of father of minor, one of three defendants, who was himself made defendant by amended complaint, to cross-appeal, as did other defendants, from order overruling their motion to dismiss for want of prosecution when plaintiffs appealed from dismissal of action on other grounds, would not prevent the supreme court from entering a proper order to avoid prejudice and inequity. Morris v. Fitzgerald, 1963-NMSC-177, 73 N.M. 56, 385 P.2d 574. Failure to follow rules. - Where no effort was made to comply with former rule, questions raised by cross-appeal would not be considered. Reynolds v. Ruidoso Racing Ass'n, 1961-NMSC-116, 69 N.M. 248, 365 P.2d 671. Where party, in the middle of his answer brief, included a section denominated "cross-appeal," by which he undertook to attack the court's judgment, but made no effort to comply with Rule 5 of former Supreme Court Rules, providing for appeals or Rule 7(2) thereof, providing for cross-appeals, the court would hold that no cross-appeal was ever taken, and refuse to consider the questions attempted to be raised. Reynolds v. Ruidoso Racing Ass'n, 1961-NMSC-116, 69 N.M. 248, 365 P.2d 671. Court of appeals was without jurisdiction to hear the merits of a cross-appeal, where the notice of cross-appeal was not filed within the time required. Olguin v. County of Bernalillo, 1989-NMCA-052, 109 N.M. 13, 780 P.2d 1160. Period runs despite nonfiling of docketing statement. - Rule 12-601 NMRA does not provide that the Rules of Appellate Procedure governing appeals from the district court do not commence to apply until after the filing of the docketing statement by the appellant in an administrative appeal. Nothing in that rule authorizes a party to file his notice of cross-appeal more than ten days from the date the appellant files its notice of appeal, as provided by Paragraph A of this rule. Rodriguez v. McAnally Enters., 1994-NMCA-025, 117 N.M. 250, 871 P.2d 14. Preservation of error by appellee required. - Where appellee cross-complainant failed to except to any of the trial court's findings and conclusions and thus failed to preserve any error, having taken no cross-appeal and not having brought within Rule 17(2) of former Supreme Court Rules, he was obliged to sustain the trial court's decision solely against the attacks made upon it by appellant. Pacheco v. Fresquez, 1945-NMSC-041, 49 N.M. 373, 164 P.2d 579. Issue waived by failure to cross-appeal. - Where appellee failed to cross-appeal question of attorney's fees pursuant to Rule 7 of former Supreme Court Rules, he waived issue. State ex rel. State Hwy. Dep't v. Yurcic, 1973-NMSC-059, 85 N.M. 220, 511 P.2d 546. Election of remittitur as bar to attack. - Where the court orders a successful plaintiff to remit a portion of the verdict or to stand a new trial, and the plaintiff elects the remittitur, he cannot attack the court's order on cross-appeal. Hudson v. Otero, 1969-NMSC-125, 80 N.M. 668, 459 P.2d 830. VII. REVIEW WITHOUT CROSS-APPEAL. Review of rulings adverse to appellee. - Rulings adverse to appellee because of which it was contended the case should be affirmed, but which needed to be considered only if appeal was found to have merit, could be reviewed under Rule 17(2) of former Supreme Court Rules, which was similar to Paragraph C of this rule. Frederick v. Younger Van Lines, 1964-NMSC-156, 74 N.M. 320, 393 P.2d 438. On appeal by plaintiff from judgment that cause of action was barred by statute of limitations, defendant-appellee would be permitted to assign errors committed against it and thus raise the question whether, notwithstanding any error found to have been committed against the plaintiff-appellant on the statute of limitations, judgment should nevertheless be affirmed. Munro v. City of Albuquerque, 1943-NMSC-050, 48 N.M. 306, 150 P.2d 733. Failure of one defendant to cross-appeal not fatal. - Failure of father of minor, one of three defendants, who was himself made defendant by amended complaint, to cross-appeal, as did other defendants, from order overruling their motion to dismiss for want of prosecution when plaintiffs appealed from dismissal of action on other grounds, would not prevent the supreme court from entering a proper order to avoid prejudice and equity. Morris v. Fitzgerald, 1963-NMSC-177, 73 N.M. 56, 385 P.2d 574. Raising of error in brief sufficient. - No notice of cross-appeal was required for appellee to obtain review, but merely the making of a point of the claimed error in brief, together with argument thereon. Frederick v. Younger Van Lines, 1964-NMSC-156, 74 N.M. 320, 393 P.2d 438. Where claimant in workmen's compensation case failed to cross-appeal or raise any error under Rule 17(2) of former Supreme Court Rules as to trial court findings, merely attempting in his brief to argue the evidence submitted to the trial court as showing a loss of wage-earning ability, supreme court would accept the findings before it as facts. Brownlee v. Lincoln Cnty. Livestock Co., 1966-NMSC-060, 76 N.M. 137, 412 P.2d 562. Failure of appellee to demonstrate error. - To obtain a review under Rule 17(2) of former Supreme Court Rules, no notice of cross-appeal was required, but merely the making of a point in the appellee's brief of the claimed error together with arguments thereon. However, where plaintiff did not preserve his argument for review, did not assert that any finding made by the trial court was error nor refer to any requested conclusions refused by the trial court, he failed to carry the burden of demonstrating how the trial court erred in failing to apply his doctrines in the light of the unchallenged findings. Adams v. Thompson, 1974-NMCA-133, 87 N.M. 113, 529 P.2d 1234, cert. denied, 87 N.M. 111, 529 P.2d 1232. Where the appellee did not preserve her argument for review, did not assert that any finding made by the trial court was error, and did not refer to any requested conclusions refused by the trial court, she failed to carry the burden of demonstrating how the trial court committed reversible error by not awarding her attorney fees. Peterson v. Peterson, 1982-NMSC-098, 98 N.M. 744, 652 P.2d 1195. VIII. EXTENSIONS OF TIME. A. IN GENERAL. Tolling provisions apply to all parties. - The filing of a post-trial motion by one party tolls the time limit for filing a notice of appeal and the time limit for granting extensions of time to file a notice of appeal for all parties in the litigation. Capco Acquisub, Inc. v. Greka Energy Corp., 2007-NMCA-011, 140 N.M. 920, 149 P.3d 1017. Strict construction. - Former Rule 3, N.M.R. App. P. (Civ.) (see now this rule) was strictly construed to prevent its progressive erosion to the point that attorneys would assume that they had 60 days within which to file notices of appeal. Guess v. Gulf Ins. Co., 1980 -NMSC-040, 94 N.M. 139, 607 P.2d 1157. Court will not exercise it discretion to excuse untimely filing of appeal by the state in a criminal case, as the court does for criminal defendants by presuming the ineffective assistance of counsel, because the state does not possess the constitutional right of an accused to the effective assistance of counsel and the court will not excuse untimely filing of an appeal because of the inadvertence of the state's counsel or because the opposing party was not prejudiced by the delay resulting from the untimely appeal. State v. Upchurch, 2006-NMCA-076, 139 N.M. 739, 137 P.3d 679. Extension cannot arise by implication. - Although the appellant claimed that her prior counsel's motion to withdraw gave reference to her intention to appeal and, by granting the motion, the trial court impliedly granted an extension of time to appeal, an extension of time to file an appeal does not arise by implication. The extension must be asked for and granted. State ex rel. Human Servs. Dep't v. Jasso, 1987-NMCA-124, 107 N.M. 75, 752 P.2d 790. An extension of time to file an appeal does not arise by implication from the filing of a motion for a new trial or a motion for reconsideration; an extension of time for the filing of an appeal must be specifically requested and granted. Labansky v. Labansky, 1988-NMCA-045, 107 N.M. 425, 759 P.2d 1007. District court retains for 60 days authority to grant extensions. - Where a post-trial motion is filed, the district court retains, for a period of 60 days from the disposition, either express or automatic of the post-trial motion, the authority to grant extensions of the time to file a notice of appeal. Chavez v. U-Haul Co., 1997-NMSC-051, 124 N.M. 165, 947 P.2d 122. Applicability to Rule 1-060B NMRA motions. - Paragraph E(5) was not intended to apply to Rule 1-060B NMRA motions. Archuleta v. New Mexico State Police, 1989-NMCA-012, 108 N.M. 543, 775 P.2d 745. Court will not extend exception to late filing to circumstances where the court played no part in the delay and where options available to the appellant to ensure timely filing of the notice were not taken. Wilson v. Massachusetts Mut. Life Ins. Co., 2004 -NMCA-051, 135 N.M. 506, 90 P.3d 525, cert. denied, 2004-NMCERT-004. Amended extension order without effect. - Where there is no question that the district court's initial order of August 14 was entered within the 60-day period to grant an extension to appeal, and the court attempted to amend it on September 24, because there is no precedent allowing for an extension order to be amended after the 60-day period, the September 24 order is considered to be a second order for an extension and is without effect. Wilson v. Massachusetts Mut. Life Ins. Co., 2004 -NMCA-051, 135 N.M. 506, 90 P.3d 525, cert. denied, 2004-NMCERT-004. Certiorari petitions. - No rule allows district courts the authority to grant extensions to file certiorari petitions. Cassidy-Baca v. Board of Cnty. Comm'rs of Sandoval Cnty., 2004-NMCA-108, 136 N.M. 307, 98 P.3d 316. Removals from corporation commission's ratemaking proceedings. - Period within which removals from corporation commission's ratemaking proceedings may be taken was governed by former Rules 3(d) and 4(c), N.M.R. App. (Civ.) (see now Rule 12-202 NMRA and this rule). Mountain States Tel. & Tel. Co. v. Corporation Comm'n, 1982-NMSC-127, 99 N.M. 1, 653 P.2d 501. Amendment of judgment without material change. - When an amendment of the judgment does no more than restate what has been decided by the original judgment, so that there is no material change of substance, the time for review starts to run from the date of the original judgment. Rice v. Gonzales, 1968-NMSC-125, 79 N.M. 377, 444 P.2d 288. Substantial modification of judgment. - Movant who obtains a substantial modification of the judgment against him is entitled to have the time for taking his appeal tolled during the pendency of the motion. Scofield v. J.W. Jones Constr. Co., 1958 -NMSC-091, 64 N.M. 319, 328 P.2d 389. Nunc pro tunc order does not extend time for appeal. - Where a timely notice of appeal is not taken and an extension of appeal time is not granted until after the maximum time for extending the appeal time has expired, a nunc pro tunc provision of the district court order attempting to supply an omitted action is not effective in extending the time for appeal, since a nunc pro tunc order properly refers only 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. Gonzales v. City of Albuquerque, 1977-NMCA-097, 90 N.M. 785, 568 P.2d 621. Appeal by defendant was not timely, as order of court in garnishment suit finally disposed of the litigation, by its very terms allowing exemptions claimed and ordering balance paid to the plaintiff, and subsequent order denying the motion to quash was unnecessary, merely completing record. Time for the defendant to appeal commenced to run on that date and motion for additional findings was not timely and could in no sense extend the time of appeal. Advance Loan Co. v. Kovach, 1968-NMSC-154, 79 N.M. 509, 445 P.2d 386. Appeal not timely notwithstanding hearing. - Plaintiff's appeal from an order denying her motion for a new trial was untimely since it was filed over three and one-half months after the motion for a new trial was filed, and over 60 days from the date the motion was denied by operation of law, and no extensions of time within which to file an appeal were sought or granted; the fact that the trial court held a hearing on the motion for a new trial within 30 days after it was filed did not have the effect of tolling the period within which to file the notice of appeal. Feynn v. St. Martin's Hospitality Ctr., 1997-NMCA-122, 124 N.M. 317, 950 P.2d 290. Motion for attorneys' fees may extend time for appeal. - Motion for attorney fees could toll the time for filing notice of appeal in workers' compensation case. Trujillo v. Hilton of Santa Fe, 1993-NMSC-017, 115 N.M. 397, 851 P.2d 1064. Appeal from second compensation order also awarding attorneys fees. - Although the court issued the second compensation order nunc pro tunc to correct errors in the first order, the court also awarded attorneys fees, which award could not relate back. Thus, the parties could appeal from either order. The appeal in this case from the second compensation order awarding attorneys fees, although more than 30 days from the first order, was nevertheless timely. Barela v. ABF Freight Sys., 1993-NMCA-137, 116 N.M. 574, 865 P.2d 1218. B. EXCUSABLE NEGLECT OR CIRCUMSTANCES BEYOND APPELLANT'S CONTROL. No excusable neglect. - The district court did not abuse its discretion in denying appellants' motion for an extension of time to file a notice of appeal where appellants failed to monitor the progress of their appeal, appellants had plenty of time and several opportunities to correct any miscommunication with their trial counsel, and appellants' general counsel was aware that trial counsel had not included the appellants in post-trial motions or the notice of appeal filed on behalf of the appellants' parent corporation in the litigation. Capco Acquisub, Inc. v. Greka Energy Corp., 2007-NMCA-011, 140 N.M. 920, 149 P.3d 1017. Inability to contact attorney. - Where appellants' motion for extension recited that they had tried, before the time for appeal had expired, to notify their attorney that they wished to appeal but had been unable to reach him until the time had expired, and that these circumstances were beyond their control or constituted excusable neglect, the trial court's order granting an extension for good cause was presumed to be correct in the absence of any indication to the contrary. White v. Singleton, 1975-NMCA-104, 88 N.M. 262, 539 P.2d 1024. Nature of proceedings. - Insofar as a motion for extension may be filed before the time for filing the notice has expired, the rule actually contemplates ex parte proceedings so long as service of notice of those proceedings is otherwise made; but once the time for filing a notice of appeal has passed, party not pressing the appeal has an opportunity to challenge granting of the motion for extension, which a challenge could involve an evidentiary hearing on the issue of excusable neglect or circumstances beyond the control of the appellant. White v. Singleton, 1975-NMCA-104, 88 N.M. 262, 539 P.2d 1024. Reliance on motion for extension for proof of service. - Where neither the motion for extension nor the notice of appeal included in the transcript proper indicated certification of service upon opposing counsel, but the copy of the motion in the skeleton transcript prepared by counsel did certify that service had been made, in light of the fact that the skeleton transcript was required as part of the appellate process and was required to be certified by the clerk of the district court, the court of appeals would rely on the copies of the motion for extension and the notice of appeal included in skeleton transcript for proof that opposing counsel was served. White v. Singleton, 1975-NMCA-104, 88 N.M. 262, 539 P.2d 1024. C. MOTIONS NOT RULED ON. Claim of exemptions on execution as a motion challenging a final foreclosure decree. - Where the defendant asserted the defendant's right to a homestead exemption in response to the foreclosure of a money judgment on the defendant's property and where, subsequent to the entry of the final foreclosure decree, the defendant filed a claim of exemptions on execution pursuant to Rule 1-065.1 NMRA in which the defendant claimed that the defendant was entitled to a homestead exemption, the defendant's claim of exemptions on execution was a motion challenging the foreclosure decree and tolled the time for filing of a notice of appeal until the district court disposed of the claim of exemptions. Grygorwicz v. Trujillo, 2009-NMSC-009, 145 N.M. 650, 203 P.3d 865, rev'g 2008-NMCA-040, 143 N.M. 704, 181 P.3d 696. Motion not ruled on deemed denied. - Where motion to set aside the judgment was not ruled upon within 30 days thereafter, it was deemed denied by operation of law; therefore, appeal taken more than five months later was not timely. New Mexico Sav. & Loan Ass'n v. Blueher Lumber Co., 1969-NMSC-059, 80 N.M. 254, 454 P.2d 268. Since the trial court's ruling on the motion for new trial prior to the expiration of the 30-day period would have been reviewable, court's failure to rule could not avoid supreme court review, and a timely motion for new trial raising issue of excessive damages, would be considered as having been denied by the lower court if denied by operation of law. Montgomery Ward v. Larragoite, 1970-NMSC-057, 81 N.M. 383, 467 P.2d 399. The failure to rule within 30 days of the filing of the motion for new trial constitutes a denial of the motion by operation of law. Chavez-Rey v. Miller, 1982-NMCA-187, 99 N.M. 377, 658 P.2d 452. The parties were required to file their notice of appeal from an order of distribution of certain settlement proceeds within 30 days from the date their motion for reconsideration was deemed denied by operation of law. Beneficial Fin. Corp. v. Morris, 1995-NMCA-076, 120 N.M. 228, 900 P.2d 977. Law reviews. - For article, "The Writ of Prohibition in New Mexico," see 5 N.M.L. Rev. 91 (1974). For article, "Habeas Corpus in New Mexico," see 11 N.M.L. Rev. 291 (1981). For annual survey of New Mexico law relating to civil procedure, see 12 N.M.L. Rev. 97 (1982). For note, "Federal Civil Rights Act - The New Mexico Appellate Courts' Choice of the Proper Limitations Period for Civil Rights Actions Filed Under 42 U.S.C. § 1983: DeVargas v. State ex rel. New Mexico Department of Corrections," see 13 N.M.L. Rev. 555 (1983). For article, "Survey of New Mexico Law, 1982-83: Civil Procedure," see 14 N.M.L. Rev. 17 (1984). 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 § 285 et seq. Motion or petition for rehearing in court below as affecting time within which appellate proceedings must be taken or instituted, 10 A.L.R.2d 1075. Right to appellate review, on single appellate proceedings, of separate actions consolidated for trial together in lower court, as affected by failure to object seasonably to appellate procedure, 36 A.L.R.2d 849. Right to perfect appeal, against party who has not appealed, by cross-appeal filed after time for direct appeal has passed, 32 A.L.R.3d 1290. Filing of notice of appeal as affecting jurisdiction of state trial court to consider motion to vacate judgment, 5 A.L.R.5th 422. Propriety of limiting to issue of damages alone new trial granted on ground of inadequacy of damages - modern cases, 5 A.L.R.5th 875. Excessiveness or adequacy of damages awarded for injuries causing metal or psychological damage, 52 A.L.R. 5th 1. Appellate review of order denying extension of time for filing notice of appeal under Rule 4(a) of Federal Rules of Appellate Procedure, 39 A.L.R. Fed. 829. Acceptance by United States District Court of Notice of Appeal in criminal case untimely filed, as grant of additional time to file notice, under Rule 4(b) of Federal Rules of Appellate Procedure, 43 A.L.R. Fed. 815. Failure to appeal denial of double jeopardy claim within time limits of Rule 4, Federal Rules of Appellate Procedure, as precluding review of claim on appeal of conviction at retrial, 51 A.L.R. Fed. 770. Appealability of federal court order denying motion for appointment of counsel for indigent party, 67 A.L.R. Fed. 925. Bail bond forfeiture proceedings as civil or criminal for purposes of time for appeal under Rule 4 of Federal Rules of Appellate Procedure, 70 A.L.R. Fed. 952. When will premature notice of appeal be retroactively validated in federal civil case, 76 A.L.R. Fed. 199. 4 C.J.S. Appeal and Error §§ 154 et seq., 264 et seq., 368 et seq.; 5 C.J.S. Appeal and Error § 734 et seq.