N.M. R. Civ. P. Dist. Ct. 1-007
N.M. R. Civ. P. Dist. Ct. 1-007
For defenses, objections and motion for judgment on the pleadings, see Rule 1-012 NMRA and the notes thereto for superseded defensive pleadings. For filing of complaint to contest an election, see Section 1-14-3 NMSA 1978. For the pleadings allowed in mandamus proceedings, see Section 44-2-11 NMSA 1978. Compiler's notes. - This rule is deemed to have superseded 105-403, 105-407, 105-532, C.S. 1929, which were substantially the same, and a provision of 105-422, C.S. 1929, providing that when a reply is filed the cause is deemed at issue. I. GENERAL CONSIDERATION. General rule is that court cannot undertake to adjudicate controversy on its own motion; it can do this only when the controversy is presented to it by a party, and only if it is presented to it in the form of a proper pleading. Zarges v. Zarges, 1968-NMSA-151, 79 N.M. 494, 445 P.2d 97. The "and/or" phrase has been condemned repeatedly by extremely learned courts. Its use is absolutely forbidden in legal pleadings and other documents presented to a court of law. The reason for this is that the symbol is equivocal. It has not been treated with quite so much vehemence in the case of contracts and powers of attorney, but is viewed with disfavor. 1953-54 Op. Att'y Gen. No. 5630. II. PLEADINGS. Breach of trust cause of action proper if well pleaded. - Where plaintiff tries to allege and prove misconduct and breach of trust by a majority stockholder or director to the injury of the corporation and its minority stockholders, such a cause of action is proper, if well pleaded. Pope v. Lydick Roofing Co., 1970-NMSC-090, 81 N.M. 661, 472 P.2d 375. Pleading affirmative defenses. - Defendant must plead affirmative defenses, otherwise they are not available to him. Sena v. Sanders, 1950-NMSC-005, 54 N.M. 83, 214 P.2d 226. Affirmative defense in answer denominated reply to cross-claim permissible. - The court did not err in permitting plaintiff to set up the defense of estoppel by acquiescence in his reply. The defense was an answer to the cross-claim and the third-party complaint, though the pleading was denominated a reply. Hobson v. Miller, 1958-NMSC-050, 64 N.M. 215, 326 P.2d 1095. By its very language, this rule requires a counterclaim to be a part of the answer. Griego v. Roybal, 1968-NMSC-077, 79 N.M. 273, 442 P.2d 585. Counterclaim only dismissed with plaintiff's consent in absence of order. - Because there was no court order authorizing a dismissal of the counterclaim, it could only have been dismissed by plaintiff's consent. Griego v. Roybal, 1968-NMSC-077, 79 N.M. 273, 442 P.2d 585. III. MOTIONS AND OTHER PAPERS. Meaning of "motion". - A written request or application to the trial court for an order affecting a party's right to findings of fact and conclusions of law is a motion. Vosburg v. Carter, 1927-NMSC-095, 33 N.M. 86, 262 P. 175; Pershing v. Ward, 1927-NMSC-096, 33 N.M. 91, 262 P. 177 (decided prior to the adoption of this rule). Motion to dismiss is properly allowed only where it appears that under no provable state of the facts would the plaintiff be entitled to recover or to relief, the motion being grounded upon the assertion that the complaint fails to state a claim on which relief can be given. Ritter v. Albuquerque Gas & Elec. Co., 1943-NMSC-035, 47 N.M. 329, 142 P.2d 919. Case dismissed on motion when only questions of law presented. - Where the pleadings as well as documentary evidence indicated that the employer of an injured minor employee qualified under Workmen's Compensation Act (Chapter 52, Article 1 NMSA 1978) and that the injured employee who had not given notice of election not to become subject to the act had received compensation, the case may be dismissed on motion since only questions of law are presented. Benson v. Export Equip. Corp., 1945 -NMSC-044, 49 N.M. 356, 164 P.2d 380. Motion for judgment on pleadings must be in writing, and must specifically point out the reasons upon which it is based. Peterson v. Foley, 1917-NMSC-079, 23 N.M. 491, 169 P. 300 (decided prior to the adoption of this rule). Motion to dismiss fulfilled function of responsive pleading. - Where the plaintiff filed its petition seeking to set aside the civil investigative demands on various grounds, and the Attorney General in turn filed a motion to dismiss the petition and to enforce the demands, together with a memorandum in support of the motion which defends the issuance of the demands and responds to every argument set forth in the plaintiff's petition, the Attorney General's motion responded to every argument set forth in the plaintiff's petition, and the record fails to show any prejudice to the plaintiff; for all practical purposes, it fulfilled the function of a responsive pleading. The Coulston Foundation v. Madrid, 2004-NMCA-060, 135 N.M. 667, 92 P.3d 679. Motion for continuance for cause is addressed to the discretion of the court and the court's ruling will not be reversed unless there was an abuse of discretion. State v. Herrera, 1971-NMCA-024, 82 N.M. 432, 483 P.2d 313, cert. denied, 404 U.S. 880, 92 S. Ct. 217, 30 L. Ed. 2d 161 (1971). Continuance not granted for cause occasioned by applicant's fault. - A continuance is not to be granted for any cause growing out of the fault of the party applying therefor. Tenorio v. Nolen, 1969-NMCA-068, 80 N.M. 529, 458 P.2d 604. Granting or denying motion for continuance rests in the discretion of the trial court and will not be interfered with except for abuse. Tenorio v. Nolen, 1969-NMCA-068, 80 N.M. 529, 458 P.2d 604; State v. Ranne, 1969-NMCA-029, 80 N.M. 188, 453 P.2d 209. Reviewed only where palpable abuse of discretion demonstrated. - The granting or denying of continuances is a matter within the sound discretion of the trial court, and such actions will be reviewed only where palpable abuse of discretion is demonstrated. Schmider v. Sapir, 1971-NMSC-030, 82 N.M. 355, 482 P.2d 58. Different variables considered when deciding upon time required for defense. - The nature of the offense, the number of witnesses, and the skill of the attorney are all variables to be taken into consideration in each case in considering the amount of time necessary to prepare a defense. State v. Nieto, 1967-NMSC-142, 78 N.M. 155, 429 P.2d 353. Lack of specificity in motion. - Where a party has timely alerted the trial court to the lack of specificity and difficulty in responding to a general motion, such as one for summary judgment, the trial court should carefully evaluate the prejudice which may result if the motion is heard or ruled upon without ordering further clarification of the grounds upon which the motion is premised. National Excess Ins. Co. v. Bingham, 1987-NMCA-109, 106 N.M. 325, 742 P.2d 537. Law reviews. - For article, "Attachment in New Mexico - Part II," see 2 Nat. Resources J. 75 (1962). Am. Jur. 2d, A.L.R. and C.J.S. references. - 1 Am. Jur. 2d Accord and Satisfaction §54; 42 Am. Jur. 2d Injunctions §268; 56 Am. Jur. 2d Motions, Rules and Orders §§1, 9, 12; 61A Am. Jur. 2d Pleading §§1, 2, 4, 17, 19, 111, 119, 180, 420, 423, 424, 429, 665. Admissibility as evidence of pleadings as containing admissions against interest, 14 A.L.R. 22, 90 A.L.R. 1393, 52 A.L.R.2d 516. Admissibility of pleadings for purposes other than the establishment of the facts set out therein, 14 A.L.R. 103. Pleading breach of warranty as to article purchased for resale and resold, 22 A.L.R. 136, 64 A.L.R. 883. Setting up counterclaim, setoff, or recoupment in reply, 42 A.L.R. 564. Searching record on motion for summary judgment, 91 A.L.R. 884. Stipulation of parties as to pleading, 92 A.L.R. 673. Appearance to demand bill of particulars or statement of claim as submission to jurisdiction, 111 A.L.R. 930. Necessity and sufficiency of reply to answer pleading statute of limitations, 115 A.L.R. 755. Use of and/or as rendering pleading uncertain, 154 A.L.R. 871. Manner of pleading defense of statute of frauds, 158 A.L.R. 89. Appealability of order entered on motion to strike pleading, 1 A.L.R.2d 422. Claim barred by limitation as subject of setoff, counterclaim, recoupment, cross bill or cross action, 1 A.L.R.2d 630. Dismissal of action for failure or refusal of plaintiff to obey court order, 4 A.L.R.2d 348, 56 A.L.R.3d 1109, 27 A.L.R.4th 61, 32 A.L.R.4th 212, 3 A.L.R.5th 237. Effect of nonsuit, dismissal, or discontinuance of action on previous order, 11 A.L.R.2d 1407. Failure to assert matter as counterclaim as precluding assertion thereof in subsequent action, under federal rules or similar state rules or statutes, 22 A.L.R.2d 621. Necessity that trial court give parties notice and opportunity to be heard before ordering new trial on its own motion, 23 A.L.R.2d 852. Court's power, on motion for judgment on the pleadings to enter judgment against movant, 48 A.L.R.2d 1175. Proper procedure and course of action by trial court, where both parties move for judgment on the pleadings, 59 A.L.R.2d 494. Raising defense of statute of limitations by demurrer, equivalent motion to dismiss, or by motion for judgment on pleadings, 61 A.L.R.2d 300. Counsel's right, in summation in civil case, to point out inconsistencies between opponent's pleading and testimony, 72 A.L.R.2d 1304. Prejudicial effect of judge's disclosure to jury of motions or proceedings in chambers in civil case, 77 A.L.R.2d 1253. Propriety of entering summary judgment for plaintiff before defendant files or serves answer to complaint or petition, 85 A.L.R.2d 825. Contempt by filing of false pleadings, 89 A.L.R.2d 1258. Independent venue requirements as to cross-complaint or similar action by defendant seeking relief against a codefendant or third party, 100 A.L.R.2d 693. Proceeding for summary judgment as affected by presentation of counterclaim, 8 A.L.R.3d 1361. Right to voluntary dismissal of civil action as affected by opponent's motion for summary judgment, judgment on the pleadings or directed verdict, 36 A.L.R.3d 1113. Dismissal of state court action for failure or refusal of plaintiff to answer written interrogatories, 56 A.L.R.3d 1109. Modern status of the Massachusetts or business trust, 88 A.L.R.3d 704. Continuance of civil case as conditioned upon applicant's payment of costs or expenses incurred by other party, 9 A.L.R.4th 1144. 60 C.J.S. Motions and Orders §10; 71 C.J.S. Pleading §§ 2, 63 to 211, 421.