N.M. R. App. P. 12-209
N.M. R. App. P. 12-209
ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-011, effective December 31, 2016, required the appellate court to notify the parties when it orders material to supplement the record proper, and made stylistic changes; in Paragraph (A), after "shall not be sealed except", deleted "upon" and added "on"; in Paragraph (B), after the heading, deleted "Upon" and added "On"; in Paragraph (C), added the last sentence; and in Paragraph (E), after "has been filed", deleted "pursuant to" and added "under". The 2006 amendment, approved by Supreme Court Order No. 06-8300-021, effective December 18, 2006, amended the first sentence of Paragraph B to provide the "so that" explanation at the end of the sentence. The 2005 amendment, approved by Supreme Court Order No. 05-8300-014, effective July 29, 2005, inserted "or statement of issues" in the first and last sentences of Paragraph B. The 1999 amendment, effective for cases filed on and after January 1, 2000, inserted "if the original of the record proper has been filed pursuant to Paragraph A of this rule" near the beginning of Paragraph E.
For federal rule, see Fed. R. App. P. Rule 10. Reconstruction of missing portions of record. - Upon application of a party, the trial court may by order reconstruct missing portions of the record, based upon stipulated matters agreed to by the parties, from the trial judge's notes, from the trial judge's recollection of the testimony, or a combination of the above. Jeantete v. Jeantete, 1990-NMCA-138, 111 N.M. 417, 806 P.2d 66. Duty of appellant to have record prepared. - It is duty of litigant seeking review to see that record is properly prepared and completed for review of any question by an appellate court. State ex rel. State Hwy. Comm'n v. Sherman, 1971-NMSC-009, 82 N.M. 316, 481 P.2d 104; Westland Dev. Co. v. Saavedra, 1969-NMSC-123, 80 N.M. 615, 459 P.2d 141. It is the duty of an appellant to see to it that a proper record is made. General Servs. Corp. v. Board of Comm'rs, 1965-NMSC-112, 75 N.M. 550, 408 P.2d 51. Duty of having transcript properly prepared and certified, showing all matters necessary to review of questions presented on appeal, rests on appellant. In re Caffo, 1961-NMSC-161, 69 N.M. 320, 366 P.2d 848. It was the responsibility and duty of the appellant to see that the transcript was properly prepared and filed. Flores v. Duran, 1960-NMSC-135, 68 N.M. 42, 357 P.2d 1091. It is the duty of the appellant to see that a proper transcript is filed in the appellate court. Norment v. Mardorf, 1920-NMSC-045, 26 N.M. 210, 190 P. 733. It was the duty of appellant to file transcript of the record and proceedings in the case as perfect and complete as was necessary to properly review same, at his own expense in the first instance, along with additional matter asked for by appellees, but if such additional matter was found unnecessary, then appellees would be required to repay expenses. O'Neal v. Geo. E. Breece Lumber Co., 1933-NMSC-088, 38 N.M. 94, 28 P.2d 523. The primary burden of properly preparing the record on appeal is on the appellant. Nichols v. Nichols, 1982-NMSC-071, 98 N.M. 322, 648 P.2d 780. Record completed by appellee. - Although appellant requested less than the complete record and failed to include statement in praecipe required under former rules of the points upon which he would rely, it did not affect the jurisdiction of the supreme court where counter praecipe of appellee included such matters in the record and the appellee was not prejudiced by the action of the appellant. Chronister v. State Farm Mut. Auto. Ins. Co., 1960 -NMSC-067, 67 N.M. 170, 353 P.2d 1059. Where appellant filed praecipe pursuant to former rule, calling for less than the entire record, and the appellee, without objection to the omission, filed praecipe for the omitted portions, the appeal would not be dismissed. Alexander Hamilton Inst. v. Smith, 1929-NMSC-002, 33 N.M. 631, 274 P. 51. Duty of appellant to include exhibits. - The appellant must insure that exhibits are part of the record on appeal. Luxton v. Luxton, 1982-NMSC-087, 98 N.M. 276, 648 P.2d 315. Failure to adopt statement of evidence and proceedings held harmless. - Although the district court erred in failing to adopt a statement of evidence and proceedings the error was harmless, as it is the responsibility of the appellant to perfect the record on appeal and he chose not to challenge the findings of fact. Barela v. Barela, 1978-NMSC-047, 91 N.M. 686, 579 P.2d 1253. Request for findings part of record. - Written request or application to the trial court to make findings of fact and conclusions of law was a motion or paper regularly filed in a cause, and a part of the record proper. Martin v. Village of Hot Springs, 1928-NMSC-036, 33 N.M. 396, 268 P. 568; Vosburg v. Carter, 1927-NMSC-095, 33 N.M. 86, 262 P. 175. Opinion made part of decree in record proper. - Fact that opinion of trial court with findings of fact and conclusions of law was not annexed to, or transmitted with, the record was immaterial, where the opinion was made a part of the final decree and therefore appeared in the record proper. Mundy v. Irwin, 1914-NMSC-043, 19 N.M. 170, 141 P. 877. Record of first appeal before court. - Pleadings which constituted the record proper in the first transcript, which was properly docketed in the supreme court, were before the court in the second appeal under former Supreme Court Rules. State ex rel. State Hwy. Comm'n v. Gray, 1970-NMSC-059, 81 N.M. 399, 467 P.2d 725. Instructions to jury were not part of record, unless ordered by the court to be filed by the clerk, and would not be considered unless brought into the record by bill of exceptions, under former appellate procedure. Baca v. Ojo Del Espiritu Santo Co., 1923-NMSC-038, 28 N.M. 499, 214 P. 764. Claims of error regarding jury instructions. - It is the general rule that an appellate court will decline to review claims of error regarding jury instructions if the instructions are not contained in the record on appeal. Where defendant failed to ensure that the requested instruction was included in the record proper, the substance of the requested instruction was not read into the record, and defendant failed to supplement the record with the proposed instruction, any statements as to the propriety of the proposed jury instruction would be speculative and akin to an advisory opinion. State v. Herrera, 2015-NMCA-116, cert. denied, 2015-NMCERT-010. Review of propriety of instruction not denied. - Where the appellate transcript shows the giving of an approved instruction, review of the propriety of giving the instruction will not be denied because the instruction is not physically included in the appellate record. Trujillo v. Baldonado, 1980-NMCA-184, 95 N.M. 321, 621 P.2d 1133. Taped statement included in transcript held part of record. - Appellate review would be easier if the trial court had filed a written statement of its reasons for alteration of a basic sentence, as part of the court file, but a taped statement preserved for review was part of the appellate record, because it was included in the transcript. State v. Bernal, 1987-NMCA-075, 106 N.M. 117, 739 P.2d 986. Ordinance not included in transcript. - Where the record was silent respecting the ordinance violation of which was claimed to have been negligence per se, the ordinance having been neither pleaded, offered in evidence nor included in the transcript, could not be considered on appeal. McKeough v. Ryan, 1968-NMSC-150, 79 N.M. 520, 445 P.2d 585. Failure to indicate points relied on. - Under former rule, supreme court was precluded from a consideration of a question which appellant, who designated less than the complete record for inclusion in the transcript, failed to include in her praecipe as a statement of the points intended to be relied upon. City of Hobbs v. Chesport, Ltd., 1966-NMSC-158, 76 N.M. 609, 417 P.2d 210; Robinson v. Black, 1963-NMSC-169, 73 N.M. 116, 385 P.2d 971. Failure of plaintiffs to request complete record of evidence or to include statement of points relied on in praecipe pursuant to former rule, where such points were included in brief, was not jurisdictional, and appeal would not be dismissed absent prejudice to defendants. Baca v. Ceballos, 1970-NMCA-040, 81 N.M. 537, 469 P.2d 516, cert. denied, 81 N.M. 506, 469 P.2d 151. Where no showing was made that appellee was prejudiced by appellant's failure to include any statement of the points upon which appellant would rely in praecipe, pursuant to former rules, jurisdiction of supreme court was not defeated. Chronister v. State Farm Mut. Auto. Ins. Co., 1960 -NMSC-067, 67 N.M. 170, 353 P.2d 1059. Record may be corrected or modified by stipulation. - Paragraph C provides that the record proper may be corrected or modified by stipulation. The rule does not require the stipulated material to be certified by the district court clerk before the appellate court may consider it. Quintana v. University of Cal., 1991-NMCA-016, 111 N.M. 679, 808 P.2d 964. Where defendant's appeal was based on double-jeopardy grounds, the case was remanded to permit him to perfect the record because trial court erred in denying his motion to introduce evidence relevant to his double-jeopardy claim. State v. Antillon, 2000-NMSC-014, 129 N.M. 114, 2 P.3d 315. Courts look with favor upon stipulations designed to simplify, shorten or settle litigation and save time and costs to the parties, and such stipulations will be encouraged and enforced unless good cause is shown to do otherwise. Commercial Whse. Co. v. Hyder Bros., 1965-NMSC-056, 75 N.M. 792, 411 P.2d 978. Appellee not bound by agreement absent participation. - Transcript on appeal made up by agreement between appellant and one appellee, in which agreement another appellee did not participate, could not be considered for the purpose of determining the rights of the latter. Stoneroad v. Beck, 1923-NMSC-087, 30 N.M. 202, 231 P. 642. Record may be amended in trial court to correct defects and to insert matter omitted therefrom before transcript is filed in the supreme court. Heron v. Gaylor, 1942-NMSC-023, 46 N.M. 230, 126 P.2d 295. Appellee was deprived of right to suggest amendments or corrections to record, where he received no notice of time and place at which appellant would apply for transcript or statement of proceedings to be settled as bill of exceptions under former procedure, and was entitled to have transcript struck where he was prejudiced thereby. Garcia v. Universal Constructors, Inc., 1970-NMCA-081, 81 N.M. 703, 472 P.2d 668, cert. denied, 81 N.M. 721, 472 P.2d 984. Statement concerning unreported proceeding. - The fact that the transcript on appeal had already been filed in the supreme court did not prevent the appellant from preparing a statement concerning an unreported proceeding pursuant to former Rule 7(c), N.M.R. App. P. (Civ.); this correction of the record did not require leave of the appellate court under former Rule 60(a), N.M.R. Civ. P. (see now Rule 1-060A NMRA). Nichols v. Nichols, 1982-NMSC-071, 98 N.M. 322, 648 P.2d 780. Questions for review would be established only by the record, and any fact not so established would not be before appellate court. State ex rel. State Hwy. Comm'n v. Sherman, 1971-NMSC-009, 82 N.M. 316, 481 P.2d 104; Westland Dev. Co. v. Saavedra, 1969-NMSC-123, 80 N.M. 615, 459 P.2d 141. To obtain a review, the record on appeal must show portions of the proceedings in the trial court necessary to raise claimed error on appeal; where record on appeal was devoid of any proceedings for which error was claimed, judgment would be affirmed. Attaway v. Jim Miller, Inc., 1972-NMCA-058, 83 N.M. 686, 496 P.2d 746. Supreme court can properly consider only facts appearing in transcript on appeal; upon a doubtful or deficient record every presumption in support of the correctness and regularity of the trial court decision is indulged. State ex rel. Alfred v. Anderson, 1974-NMSC-101, 87 N.M. 106, 529 P.2d 1227. Where plaintiff failed to include facts and testimony in the record to support his contention of insufficiency of facts and evidence to support order vacating a default judgment, and did not request a transcript of the proceedings, the appellate court would follow the rule that upon a doubtful or deficient record, every presumption is indulged in favor of the correctness and regularity of the decision of the trial court. Gengler v. Phelps, 1976-NMCA-114, 89 N.M. 793, 558 P.2d 62. Facts necessary to present a question for review by an appellate court are established only through a transcript of the record certified by the clerk of the trial court; any fact not so established is not before appellate court. Nix v. Times Enters., Inc., 1972-NMCA-070, 83 N.M. 796, 498 P.2d 683. Review on appeal is limited to a consideration of the transcript of the record properly certified by the clerk of the trial court. Federal Nat'l Mtg. Ass'n v. Rose Realty, Inc., 1968-NMSC-102, 79 N.M. 281, 442 P.2d 593. Facts necessary to present a question for review by an appellate court are established only through a transcript of the record, and any fact not so established is not before the supreme court on appeal; hence, where there was nothing to show that complaint and judgment of prior proceeding attached to transcript were offered as exhibits in this case nor brought up as a part of the bill of exceptions pursuant to former Supreme Court Rules, they could not be considered on appeal. Richardson Ford Sales v. Cummins, 1964-NMSC-128, 74 N.M. 271, 393 P.2d 11. In disposing of an appeal supreme court is limited to facts disclosed by the record; attempt to supply what was missing by attaching exhibits to the briefs was not permitted by the rules, and court would not consider the same. Porter v. Robert Porter & Sons, 1961-NMSC-010, 68 N.M. 97, 359 P.2d 134. Supreme court was bound by findings of trial court in order appealed from where record, filed under former rule, disclosed no testimony and contained no bill of exceptions or stipulations or statement of facts by trial court as part of record. In re Caffo, 1961-NMSC-161, 69 N.M. 320, 366 P.2d 848. A verbatim transcript is not necessary in most cases to permit meaningful appellate review. Jeantete v. Jeantete, 1990-NMCA-138, 111 N.M. 417, 806 P.2d 66. Doubtful verdict interpreted by reference to entire record. - If there is any doubt about a verdict, the supreme court is entitled to interpret the verdict by reference to the whole record and particularly by reference to the instructions given by the lower court. State v. Cisneros, 1967-NMSC-015, 77 N.M. 361, 423 P.2d 45. Nonconsideration of part of record proper. - In a workers' compensation action, where documents contained in the supplemental record proper could have been admitted as evidence at the formal hearing but were not in fact admitted, the documents could not be considered by the district court as competent evidence in support of the formal hearing judge's decision. Although material is part of the record proper, a court may decide that it is not to be considered in determining whether substantial evidence in the whole record supports the decision below. Flowers v. White's City, Inc., 1992-NMCA-062, 114 N.M. 73, 834 P.2d 950. Matters not of record will not be considered on appeal. Adams v. Loffland Bros. Drilling Co., 1970-NMCA-114, 82 N.M. 72, 475 P.2d 466. Supreme Court of New Mexico is limited on review to what is disclosed by the record. Maryland Cas. Co. v. State Farm Mut. Auto. Ins. Co., 1966 -NMSC-205, 77 N.M. 21, 419 P.2d 229. Matters outside record not reviewable. - Where the transcript of the hearing on a motion to suppress is not included in the record on appeal, the refusal of the court of appeals to consider the propriety of the trial court's failure to grant that motion is upheld, since matters outside the record present no issue for review. State v. Romero, 1975-NMCA-017, 87 N.M. 279, 532 P.2d 208. Omitted portions of record presumed to be unnecessary. - Where appellant in praecipe for record called for by former rules, set forth desire for review on instructions given or refused, and called for portions of record, and appellee failed to call for additional parts of record, it would be conclusively presumed, in the absence of certiorari for diminution of record, that omitted portions were unnecessary. Marcus v. St. Paul Fire & Marine Ins. Co., 1931 -NMSC-030, 35 N.M. 471, 1 P.2d 567. Incomplete record assumed to support trial court. - As the burden is on appellant to insure that the appellate court has a record adequate to review the issues, when the record is incomplete, the appellate court will assume that the missing portions would support the trial court's determination. State v. Doe, 1985-NMCA-065, 103 N.M. 233, 704 P.2d 1109. Appeal not dismissed for failure to comply with rules. - Even though appellants failed to file praecipe with the clerk of the district court specifying the record to be included in the transcript and settled as a bill of exceptions, nor filed certificates relating to arrangements with the clerk and court's stenographer for compensation, such failure to comply with former rules did not deny the right of appeal, and motion to dismiss would be denied. Alamogordo Fed. Sav. & Loan Ass'n v. Snow, 1959-NMSC-086, 66 N.M. 216, 345 P.2d 746. Noncompliance with rule must be raised before matter submitted. - Where the failure of appellant to comply with this rule was not raised until the matter was submitted for consideration, the supreme court did not dismiss the appeal but determined the merits where the issues had already been briefed. Flower v. Willey, 1981-NMSC-024, 95 N.M. 476, 623 P.2d 990. Arrangements for compensation. - Former supreme court rule required an appellant to furnish a copy of the praecipe to the court stenographer and to make satisfactory arrangements with him and the clerk for their compensation. Barelas Community Ditch Corp. v. City of Albuquerque, 1956-NMSC-057, 61 N.M. 222, 297 P.2d 1051. Law reviews. - For note, "New Mexico Water Pollution Regulations and Standards Upheld," see 19 Nat. Resources J. 693 (1979). Am. Jur. 2d, A.L.R. and C.J.S. references. - 4 Am. Jur. 2d Appellate Review § 90 et seq.; 5 Am. Jur. 2d Appellate Review § 484 et seq. Court reporter's death or disability prior to transcribing notes as grounds for reversal or new trial, 57 A.L.R.4th 1049. Correction, modification, or supplementation of record on appeal under Rule 10(e) of Federal Rules of Appellate Procedure, 60 A.L.R. Fed. 183. 4 C.J.S. Appeal and Error § 440 et seq.