Eager v. Belmore , 53 N.M. 299 ( 1949 )

On Motion for Rehearing. The plaintiffs move for a rehearing upon two grounds, as follows:

"The Court in its opinion did not expressly pass upon the limitation statute applicable to this case, to-wit, Section 25 of Chapter 27 of the [Sp.] Session Laws of 1934.

"The Court in its opinion did not expressly pass upon the proposition that the judgment in Cause No. 7563 was res adjudicata of the issues involved in this suit, at least as to an undivided one-half interest in the property."

What standing have plaintiffs when it has been determined that the deed under which they claim is void? They are plaintiffs and must recover, if at all, on the strength of the void deed. Union Land Grazing Co. v. Arce et al., 21 N.M. 115, 152 P. 1143; New Mexico Realty Co. v. Security Inv. Dev. Co., 27 N.M. 664,204 P. 984. Assuming for the moment that the short statute of limitation would protect them against defendant's attack, it does not relieve them from the burden of showing that they have sufficient title upon which to base a favorable decree, and they have none.

As to the second point, the facts as found by the court are as follows:

"That on April 11, 1941 the defendant, D.A. Belmore, Jr., filed his Complaint in Civil Cause No. 7563 on the docket of the District Court of Quay County, New Mexico, all of the files in said cause being in evidence in this case and having been admitted in evidence in the trial of this case in Tucumcari, New Mexico, on November 8, 1946, and in said Complaint the said D.A. Belmore, Jr., claimed the ownership of Lots 8, 9 and 10 in Block 33 of the Original Townsite of the City of Tucumcari, Quay County, New Mexico, and the plaintiff in this case, James Edwin Eager, was a defendant in said cause No. 7563, and that on March 22, 1945, the defendant James Edwin Eager, in said cause No. 7563 filed a motion to dismiss said cause because the plaintiff in said cause, D.A. Belmore, Jr., had failed to file any pleadings or take any action to bring said suit to its final determination for a period of more than two years, and on May 14, 1945, the District Judge before whom said cause was pending entered its order dismissing with prejudice said cause No. 7563, and that the pleadings in this case No. 8341, of the defendant, D.A. Belmore, Jr., including his cross-complaint, contain substantially the same material facts and issues involved in said cause No. 7563 which was dismissed with prejudice."

An examination of the record in that case discloses that plaintiff Mary Jane Eager, who is the sister-in-law of plaintiff, was not a party to that suit, and the judgment of dismissal in the case of Belmore v. Eager did not affect defendant Belmore's claim as against her.

Defendant Belmore filed a cross-complaint in this cause, in which he claimed title to the property in suit. To this cross-complaint the plaintiffs pleaded the judgment of dismissal in the first suit as res judicata to defendant's cross action. Finding No. 15, supra, affected the cross-action only, from which no appeal was taken. It did not have the effect of establishing title in plaintiffs.

The motion for dismissal in the suit of Belmore v. Eager was as follows:

"That the above action was filed by the plaintiff on April 11, 1941 and said action is still pending in Court.

"That the plaintiff has failed to take any action to bring this suit to its final determination for more than two years after the filing of said suit and for more than two years of the filing of any pleadings in said action, and that no stipulation has been entered by the parties suspending or postponing final action therein beyond two years."

This motion was authorized by Rule of Civil Procedure 41(e), 1941 Comp. § 19-101 (41) (e), which is as follows:

"(1) In any civil action or proceeding pending in any district court in this state, when it shall be made to appear to the court that the plaintiff therein or any defendant filing a cross-complaint therein has failed to take any action to bring such action or proceeding to its final determination for a period of at least two years after the filing of said action or proceeding or of such cross-complaint unless a written stipulation signed by all parties to said action or proceeding has been filed suspending or postponing final action therein beyond two years, any party to such action or proceeding may have the same dismissed with prejudice to the prosecution of any other or further action or proceeding based on the same cause of action set up in the complaint or cross-complaint by filing in such pending action or proceeding a written motion moving the dismissal thereof with prejudice.

"(2) The filing of the motion for dismissal above provided for shall be taken and held as a special appearance by the party so filing same and shall not be taken to be an entry of appearance in said action or proceeding to confer upon the court jurisdiction other than to act upon said motion."

The order of dismissal was as follows:

"This cause coming on for hearing on Motion to Dismiss * * * and the Court being advised, finds:

"That the above action was filed by the plaintiff on April 11, 1941 and that the plaintiff has failed to take any action to bring this suit to its final determination for more than two years after the filing of said suit and for more than two years after the filing of any pleadings in this case, and that no written stipulation has been entered by the parties suspending or postponing final action beyond two years and the case should be dismissed with prejudice.

"It Is Therefore Ordered and Decreed by the Court, that the above action be and is hereby dismissed with prejudice."

We have held that Rule 41(e) has the effect of a statute of limitation, City of Roswell v. Holmes, 44 N.M. 1, 96 P.2d 701. This is evident from the following language:

"* * * any party to such action or proceeding may have the same dismissed with prejudice to the prosecution of any other or further action or proceeding based on the same cause of action set up in the complaint or cross-complaint * * *."

The order of dismissal did not have the effect of destroying rights, but took from the plaintiff his remedy. Sheley v. Shafer,35 N.M. 358, 298 P. 942; Davis v. Savage, 50 N.M. 30,168 P.2d 851. The effect of the dismissal was to deprive the plaintiff in that case (defendant Belmore in the present suit) from again bringing suit on the same cause of action against James Edwin Eager, but it went no further. He was barred from instituting a cross-action herein, and the court correctly refused him this remedy. However, it did not affect plaintiff's action nor defendant's defense thereto. This defense was in the following words:

"This defendant denies each, every, and all of the allegations contained in the plaintiffs' complaint except such as are hereinafter expressly admitted.

"This defendant admits that he claims right, title, interest and estate in and to the real estate described in the complaint adverse to the right, title, interest, estate, claim and demand of the plaintiffs."

The burden was on the plaintiffs to establish title by something more than a void deed, a mere nullity, and therefore entirely ineffective for any purpose.

We adhere to our original decision, and the motion for rehearing will be denied.

It is so ordered.

LUJAN and SADLER, JJ., concur.

McGHEE and COMPTON, JJ., did not participate.