Garcia v. Universal Constructors, Inc.

OPINION SPIESS, Chief Judge. This action was brought against the City of Albuquerque (City) and Universal Constructors, Inc., (Universal) for the recovery of damages sustained by plaintiffs from the settling and cracking of their homes. The damage was alleged to have been caused by the negligence of the defendants. The trial resulted in the dismissal of the City pursuant to a directed verdict and a verdict in favor of the defendant, Universal. Following the entry of judgment, plaintiffs appealed. A transcript was filed in this court and thereafter defendant, Universal, moved to strike the transcript of proceedings and affirm the judgment upon the ground that it was not given notice of the time and place when and where it would be settled as a bill of exceptions in accordance with Supreme Court Rule 13(4) [§ 21-2-1 (13) (4), N.M.S.A.1953], This rule provides: “After the filing of such transcript or statement of proceedings, appellant or plaintiff in error shall give appellee or defendant in error five days notice of the time and place when and where he will apply to have such transcript or statement settled as a bill of exceptions.” Universal further asserts that it did not waive notice, nor consent to the signing and settling of the transcript as a bill of exceptions. As a further ground for its motion, Universal contends that the transcript of proceedings is no part of the record for the reason that it does not contain the certificate of the judge settling it as a bill of exceptions as required by Supreme Court Rule 13(5) [§ 21-2-1(13) (5), N.M.S.A. 1953]. The language of this rule is: “The judge, after making such additions and corrections as may be proper, shall attach to the transcript or statement of proceedings so previously filed, his certificate of settling and signing the same as a bill of exceptions, and the same shall be thereupon filed as a part of the record.” City has joined in the motion, but solely upon the ground that the transcript fails to contain the certificate of the judge. City concedes that it received and reviewed the transcript and waived notice of the hearing required by Rule 13(4). It appears from the record and files before us that the final judgment was entered on June 3, 1969. A notice of appeal was filed June 25, 1969. Thereafter, an order was entered extending the time for docketing the transcript to November 24, 1969, and on November 21, 1969, a further order was entered extending the time to December 29, 1969. No further orders relating to the filing of the transcript or extending the time for so doing appear. The transcript was, however, filed in the office of the Clerk of the Court of Appeals on January 13, 1970. The transcript contains no notice to Universal of a time and place when and where the plaintiffs would apply to have the transcript settled as a bill of exceptions, nor does the transcript show a waiver of such notice. Further, the transcript does not include the certificate of the Judge as required by Rule 13(5). Plaintiffs, although conceding the violation of Rule 13(4) and (5), assert that Supreme Court Rule 16(4) [§ 21-2-1(16) (4), N.M.S.A.1953] precludes striking the purported bill of exceptions. This rule provides : “No motion to dismiss on appeal or writ of error, strike a bill of exceptions or otherwise dispose of any cause except upon its merits, where such motion is based upon other than jurisdictional grounds, will be granted except upon a showing, satisfactory to the court, of prejudice to the moving party, or that the ends of justice require the granting thereof. No such motion will be entertained unless filed before the movant has filed his brief on the merits.” It is argued that prejudice to defendant is not shown as a result of the failure to give it notice required by Rule 13(4), nor in the failure of plaintiffs to comply with Rule 13(5), and consequently the motion to strike should be denied. Universal argues that prejudice results to it from the fact that it has a statutory right to suggest amendments or corrections to the record before it is certified by the Judge and in the absence of notice of the time and place for signing and settling the bill of exceptions, and in the absence of a hearing, Universal was deprived of that right. We think the argument has merit. It is further apparent that Universal could be confronted with a record which does not speak the truth and be without remedy for its correction. In our view, a showing of prejudice is present as to Universal. Certainly, through the denial of provisions of Rule 13(4) and (5) Universal was placed in a less favorable position than it would have occupied had plaintiffs complied with the rules. The motion of defendant, Universal, should be granted. See Mitchell v. Mitchell, 57 N.M. 776, 264 P.2d 673 (1953). Plaintiffs have cited Clodfelter v. Reynolds, 68 N.M. 61, 358 P.2d 626 (1961), as support for their position in opposition to the motions to strike. In Clodfelter the Supreme Court declined to strike a transcript which had not been certified by the trial court, saying: “ * * * No jurisdictional ground was advanced in support of the motion and no prejudice to appellee is shown. The motion to strike is overruled. Supreme Court Rule 16(4).” Although the Clodfelter opinion does not so state, examination of the record discloses that appellees waived notice of settlement of the bill of exceptions; which, as stated, did not occur as to the defendant, Universal. This leads us to the motion of the City. It waived the notice required by Rule 13(4) as did appellees in Clodfelter and has made no showing of prejudice. The motion should be denied as to the City under Rule 16(4). It is finally contended by the City that in view of the failure of appellants to file the transcript by the return date, this court should, pursuant to Supreme Court Rule 14(2) [21-2-1(14) (2), N.M.S.A. 1953], docket the judgment of the district court and affirm the judgment on behalf of the City. This contention is without merit for the reason that the Motion for Affirmance was not made until after the transcript had been filed; hence, any default was cured before the motion was made. See Collins v. Unknown Heirs, 27 N.M. 222, 199 P. 362 (1921). The transcript having been stricken as to the defendant, Universal, only the record proper is left for consideration upon the appeal respecting the judgment in its favor. All points relied upon for reversal of this judgment relate to evidentiary matters, which require a reference to a bill of exceptions which, as stated, is not before us as to Universal. The judgment, insofar as it applies to Universal is affirmed. Defendant, City, will, upon its request, be granted reasonable time to present its answer brief. It is so ordered. OMAN, J., specially concurring. HENDLEY, J., concurs.