N.M. R. Civ. P. Dist. Ct. 1-060
N.M. R. Civ. P. Dist. Ct. 1-060
Committee commentary. - Under Rule 12-201(D)(4) NMRA, a timely filed notice of appeal does not divest the district court of jurisdiction to dispose of any timely filed motion under Rules 1-050, 1-052, or 1-059 NMRA, or a Rule 1-060 NMRA motion filed within thirty (30) days after the filing of a judgment. The notice of appeal becomes effective when the last such motion is disposed of expressly by an order of the district court, is automatically denied, or is withdrawn.
2016 amendment
Deutsche Bank Nat'l Trust Co. v. Johnston, 2016-NMSC-013, & 34, 369 P.3d 1046 provides that a judgment "is not voidable under Rule 1-060(B) [NMRA] due to a lack of prudential standing." (Emphasis added). The amendment to Rule 1-060(B)(6) provides a ground for relief in consumer debt litigation separate from the relief from voidable judgments under Rule 1-060(B)(4).
Rule 1-060(B)(6) now provides that non-compliance with the requirements of Rule 1-009(J)(2) NMRA or Rule 1-017(E) NMRA or the failure to have substantially complied with Form 4-226 NMRA can provide a basis for granting relief from a judgment entered in a case controlled by Rule 1-009(J). The addition of this language provides a ground for relief but does not compel the district court to grant relief in every case in which the movant shows non-compliance with these consumer debt provisions. In addition to the requirement of Rule 1-060(B)(6) that the movant file the motion within a reasonable time, the movant must also demonstrate that it has a meritorious defense. See Rodriguez v. Conant, 1987-NMSC-040, & 18, 105 N.M. 746, 737 P.2d 527. When these requirements are met, the court may exercise discretion to determine whether intervening equities or other considerations outweigh the desire "that the ultimate result will address the true merits and substantial justice will be done." Phelps Dodge Corp. v. Guerra, 1978-NMSC-053, && 15, 20, 21, 92 N.M. 47, 582 P.2d 819.
In contrast, a Rule 1-060(B)(4) motion to void the judgment can be brought at any time, does not permit the trial court to exercise discretion to deny the motion, Classen v. Classen, 1995-NMCA-022, && 10, 13, 119 N.M. 582, 893 P.2d 478, and does not require proof of a meritorious defense. Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86-87, 108 S. Ct. 896, 900, 99 L. Ed. 2d 75 (1988).
[Adopted by Supreme Court Order No. 13-8300-032, effective in all cases pending or filed on or after December 31, 2013; as amended by Supreme Court Order No. 16-8300-031, effective for all cases pending or filed on or after July 1, 2017.]
ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-031, effective July 1, 2017, provided that the failure to comply with procedures in consumer debt cases can provide the basis for granting relief from a final judgment or order in a case, made certain stylistic changes, and revised the committee commentary; in Paragraph A, after "pendency of an appeal", deleted "such" and added "these"; in Paragraph B, in the introductory sentence, after "On motion and", deleted "upon" and added "on", after "relieve a party or", deleted "his" and added "the", and after "reasons", added "party's"; in Subparagraph B(6), after "operation of judgment", added "including failure of a party who was subject to the provisions of Rule 1-009(J) NMRA to comply with Rules 1-009(J)(2) and 1-017(E) NMRA, and to substantially comply with Form 4-226 NMRA". The 2013 amendment, approved by Supreme Court Order No. 13-8300-032, effective December 31, 2013, corrected the numerical designation of the one year time limit for filing a motion for relief from a judgment because of mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, or fraud; and in Subparagraph (6) of Paragraph B, in the first sentence, after "not more than", changed "one-year" to "one (1) year". Compiler's notes. - Paragraph A, together with Rules 1-015, 1-021 and 1-061 NMRA, is deemed to have superseded 105-605, 105-606, 105-610, 105-611 and 105-617 to 105-621, C.S. 1929, which were substantially the same. Paragraph B is deemed to have superseded former Trial Court Rule 105-840 derived from 105-840, C.S. 1929, relating to setting aside interlocutory or default judgments. It is also deemed to be a substitute for 105-843 and 105-846, C.S. 1929, relating to setting aside default judgments and setting aside judgments for irregularities, respectively. I. GENERAL CONSIDERATION. Rule was created to provide simplified method for correcting errors in final judgments. Phelps Dodge Corp. v. Guerra, 1978-NMSC-053, 92 N.M. 47, 582 P.2d 819; Barker v. Barker, 1980-NMSC-024, 94 N.M. 162, 608 P.2d 138. Piecemeal trial of lawsuit. - This rule does not permit a party to try a lawsuit in bits and pieces, saving some evidence and withholding some legal theories for later submission in the event of an unfavorable outcome. Armstrong v. Csurilla, 1991-NMSC-081, 112 N.M. 579, 817 P.2d 1221. Applicability to default judgments. - With the exception of judgments still under the court's control pursuant to Section 39-1-1 NMSA 1978, judgments by default must be set aside in accordance with this rule. Marinchek v. Paige, 1989-NMSC-019, 108 N.M. 349, 772 P.2d 879. Entry of default is procedurally distinct from entry of judgment by default. Entry of default is a formal matter that serves to invite the court's attention to a party's omission to plead or otherwise defend and to the fact that the case is ripe for entry of judgment by default. By its terms, Rule 1-055(C) NMRA requires requests for relief from entries of default to be considered under a "good cause shown" standard. On the other hand, default judgments are to be deemed final judgments. As final judgments they are subject to the trial court's control for a period of thirty days, pursuant to Section 39-1-1 NMSA 1978. Thereafter, default judgments must be set aside in accordance with Paragraph (B) of this rule. DeFillippo v. Neil, 2002-NMCA-085, 132 N.M. 529, 51 P.3d 1183. Default resulting from attorney's or insurer's actions. - Under New Mexico law, a party will generally be bound by his or her attorney's actions, and to escape a default judgment resulting from his or her attorney's gross acts and failures, the client must demonstrate personal diligence which was thwarted by the attorney; moreover, the same rule applies to default arising out of actions by insurer defending case pursuant to an insurance policy with original defendant. Adams v. Para-Chem Southern, 1998-NMCA-161, 126 N.M. 189, 967 P.2d 864. Timeliness of motion authorized by Section 39-1-1 NMSA 1978 and this rule. - When, after paying a judgment to avoid a foreclosure sale, a party decided he had paid more than the judgment required and sought relief by a motion filed in the same proceeding, if the motion was of a type authorized by both Section 39-1-1 NMSA 1978 and this rule, the court could consider the motion if it was timely filed under the rule, even if it was not timely under the statute. Century Bank v. Hymans, 1995-NMCA-095, 120 N.M. 684, 905 P.2d 722. Court has full control of its judgment, jurisdiction and authority even upon its own motion to make any change, modification, or correction thereof which it deems proper under the circumstances. Desjardin v. Albuquerque Nat'l Bank, 1979-NMSC-052, 93 N.M. 89, 596 P.2d 858. Relief under rule is discretionary with trial judge and will be reviewed only for an abuse of that discretion. Click v. Litho Supply Co., 1981-NMSC-015, 95 N.M. 419, 622 P.2d 1039. Court's discretion to vacate judgment. - It is within the trial court's discretion to vacate a judgment when justice will be better served by its doing so. Parsons v. Keil, 1987-NMSC-057, 106 N.M. 91, 739 P.2d 505, overruled on other grounds, Resolution Trust Corp. v. Ferri, 1995-NMSC-055, 120 N.M. 320, 901 P.2d 738. Property division modification still possible though precluded by this rule. - Although a party seeking a modification of a property division portion of a divorce decree fails to make timely showing of facts entitling him to relief under this rule, he may seek such modification through a new action under Section 40-4-20 NMSA 1978, relating to failure to divide property on dissolution of marriage. Mendoza v. Mendoza, 1985-NMCA-088, 103 N.M. 327, 706 P.2d 869. Modification of marital settlement agreement. - Where parties to a divorce action entered into a marital settlement agreement in which they placed an annuity, money purchase plan, profit sharing plan, and individual retirement accounts under the control of a receiver to pay personal taxes and community debts; the district court approved the agreement and merged it into the divorce decree; creditors of the parties subsequently intervened in the action seeking payment of their bills from the assets; and the district court entered an order which provided that the assets could not be used to pay the creditors' claims, the district court abused its discretion to the extent the district court concluded that the divorce decree could be modified under Sections 42-10-2 and 42-10-3 NMSA 1978. Gordon v. Gordon, 2011-NMCA-044, 149 N.M. 783, 255 P.3d 361. Retroactive modification of prior medical benefits award. - A motion seeking to retroactively modify a prior award of medical benefits must also satisfy the requirements of this rule. St. Clair v. County of Grant, 1990-NMCA-087, 110 N.M. 543, 797 P.2d 993. Post-decision change in note value. - Where, in a divorce action, the change in value of a note occurred after its value was set at trial and the trial court was apprised of the change after it had rendered its decision changing ownership of the note from tenancy in common to wife's separate property, this is a post-trial and post-decision matter, and is governed by Rule 1-059 NMRA and this rule. Lewis v. Lewis, 1987-NMCA-073, 106 N.M. 105, 739 P.2d 974. Findings of fact and conclusions of law are not required for a motion seeking relief from judgment. Fidelity Nat'l Bank v. Lobo Hijo Corp., 1979-NMCA-045, 92 N.M. 737, 594 P.2d 1193. Applicability of 30-day time limit under Rule 1-059D NMRA. - The 30-day time limit of Rule 1-059D NMRA does not apply to motions for a new trial authorized by Rule 1-060B NMRA. Archuleta v. New Mexico State Police, 1989-NMCA-012, 108 N.M. 543, 775 P.2d 745. Appellate court had jurisdiction over second supplemental judgment. English v. English, 1994-NMCA-090, 118 N.M. 170, 879 P.2d 802. II. CLERICAL MISTAKES. Courts under duty to correct clerical errors in orders. - Under this rule, courts have the power and the duty to correct clerical errors in orders which are issued due to inadvertence or mistake. Telephonic, Inc. v. Montgomery Plaza Co., 1975-NMCA-040, 87 N.M. 407, 534 P.2d 1119. Court may modify judgment so as to correct purely clerical error. De Baca v. Sais, 1940-NMSC-006, 44 N.M. 105, 99 P.2d 106; United States v. Rio Grande Dam & Irrigation Co., 1906-NMSC-013, 13 N.M. 386, 85 P. 393, aff'd, 215 U.S. 266, 30 S. Ct. 97, 54 L. Ed. 190 (1909) (decided under former law). Court may amend judgment. - Courts may amend their judgments to correct clerical error in name of party. Zintgraff v. Sisney, 1926-NMSC-038, 31 N.M. 564, 249 P. 108 (decided under former law). Amended order does not vacate original order. - Amended order issued under Subsection A to correct clerical errors in the original probate order did not vacate the original order; as a result, the twelve-month time limit for challenging the court's heirship findings was triggered at the time of the original order, not the amended order. In re Estates of Hayes, 1998-NMCA-136, 126 N.M. 23, 965 P.2d 939. Supreme court's primary function is to correct erroneous result rather than to approve or disapprove the grounds on which it is based. Armijo v. Shambaugh, 1958-NMSC-067, 64 N.M. 459, 330 P.2d 546. Scrivener's error in property description. - Where an error in the description of the property in the contract sued upon was a clerical error of the scrivener, wholly inadvertent and unintentional, action of the court in sustaining motion to amend the pleadings and decree affirmed the contract. Pugh v. Phelps, 1932-NMSC-084, 37 N.M. 126, 19 P.2d 315 (decided under former law). Correction of clerical mistakes in motion to dismiss. - Where plaintiffs, pursuant to Rule 41(a)(2) (see now Rule 1-041 NMRA), filed a motion to dismiss before the answer and counterclaim were filed, and the motion contained a clerical error in that the phrase "with prejudice" was substituted for "without prejudice" at some point between counsel's dictation of the notice and the final draft, and upon discovery of the error, the plaintiffs filed a motion pursuant to Rule 60(a) (see now Rule 1-060 NMRA) to correct the notice (also before defendant's answer and counterclaim) the lower court not only had the right but the duty to correct the clerical mistake in plaintiffs' original notice of dismissal with prejudice to read "without prejudice." Telephonic, Inc. v. Montgomery Plaza Co., 1975-NMCA-040, 87 N.M. 407, 534 P.2d 1119. In decree in date of congressional act. - Where a clerical mistake was made in a decree in the date of an act of congress correctly alleged in the pleadings, the court could correct such mistake at the next regular term. United States v. Rio Grande Dam & Irrigation Co., 1906-NMSC-013, 13 N.M. 386, 85 P. 393, aff'd, 215 U.S. 266, 30 S. Ct. 97, 54 L. Ed. 190 (1909) (decided under former law). Omission of phrase in decree. - The omission of the phrase "per month" in a child support decree is clearly a clerical mistake apparent on the face of the record. Britton v. Britton, 1983-NMSC-084, 100 N.M. 424, 671 P.2d 1135. When order inadvertently entered. - Trial court did not err in setting aside its previous dismissal without prejudice and reinstating the case on the docket where no such contention was ever presented to the trial court, and, accordingly, could not be asserted for the first time on appeal without having afforded the trial court an opportunity to rule on it. Secondly, the dismissal order was entered pursuant to the trial court's inherent powers, and reinstatement less than 90 days later, for the stated reason that the order had been inadvertently entered, would be within the court's discretionary power to correct mistakes "arising from oversight or omission" at any time on the court's "own initiative" as provided in Rule 60(a) (see now Rule 1-060A ) NMRA. Beyer v. Montoya, 1965-NMSC-064, 75 N.M. 228, 402 P.2d 960. Effect of differences between complaint and contract regarding incorporating state. - Where the complaint alleges that defendant corporation was organized under the laws of a given state, and the contract alleges its incorporation in another state, and process is served upon its statutory agent with full notice to defendant, the erroneous allegation will not justify an attack upon a default judgment. Riverside Irrigation Co. v. Cadwell, 1916-NMSC-033, 21 N.M. 666, 158 P. 644 (decided under former law). Amendment on appeal. - Defective allegation of venue being one of form, without possibility of prejudice to anyone, could be amended on appeal. Friday v. Santa Fe Cent. Ry. Co., 1910 -NMSC-018, 16 N.M. 434, 120 P. 316, aff'd, 232 U.S. 694, 34 S. Ct. 468, 58 L. Ed. 802 (1914) (decided under former law). Amendment of pleading to cure technical defects permitted. - Supreme court may amend pleadings to cure technical defects not being against right and justice or altering the issue. Cannon v. First Nat'l Bank, 1930-NMSC-087, 35 N.M. 193, 291 P. 924 (decided under former law). Supplying missing names in judgment permitted. - Where action was brought by certain persons as a copartnership, and judgment was rendered against the copartnership and not against the individuals comprising it, the supreme court supplied the omission of the individual names by ordering them inserted in the judgment as provided in Comp. Laws 1897, §2685(94) (105-619, C.S. 1929). Wirt v. George W. Kutz & Co., 1910-NMSC-039, 15 N.M. 500, 110 P. 575 (decided under former law). Amending writ of error. - Under Comp. Laws 1897, §2685(94) (105-619, C.S. 1929), it was within the power of the supreme court to permit an amendment of a writ of error by striking out the parties defendant in error. Neher v. Armijo, 1898-NMSC-005, 9 N.M. 325, 54 P. 236 (decided under former law). When mistake in name of party not considered on appeal. - A mistake in the name of a corporation party plaintiff which might have been corrected by the trial judge, either before or after judgment, and where there can be no question as to the identity of the corporation suing, will not be considered on appeal. Board of Educ. v. Astler, 1914-NMSC-081, 21 N.M. 1, 151 P. 462 (decided under former law). Typographical error in a finding of fact can be corrected with leave of the appellate court. Cochrell v. Hiatt, 1981-NMCA-152, 97 N.M. 256, 638 P.2d 1101. Twice including single property item in calculation. - The request of parties to a divorce action to decrease the award of personal property was granted, where the parties stated that they had erroneously included the value of a coin collection twice in calculating the division of personal property. Mattox v. Mattox, 1987-NMCA-021, 105 N.M. 479, 734 P.2d 259. Submission of additional statement on appeal where transcript already filed. - Rule 7(c), N.M.R. Civ. App. (see now Rule 12-209 NMRA), permits the appellant to prepare a statement of an unreported proceeding and submit it, along with objections, to the district court for settlement, approval and inclusion in the record on appeal. The fact that the transcript on appeal has already been filed in the supreme court would not prevent him from preparing such a statement; this correction of the record is not the type requiring leave of the appellate court under Subdivision (a) (see now Paragraph A) of this rule. Nichols v. Nichols, 1982-NMSC-071, 98 N.M. 322, 648 P.2d 780. Correction of errors in computation of interest. - When, after paying a judgment to avoid a foreclosure sale, a party decided he had paid more than the judgment required and sought relief by a motion filed in the same proceeding, the motion regarding errors in the computation of interest on the judgment was authorized under Paragraph A. Century Bank v. Hymans, 1995-NMCA-095, 120 N.M. 684, 905 P.2d 722. III. MISTAKES; INADVERTENCE; ETC. A. IN GENERAL. Allegations of spouse's affair on settlement agreement. - Where the trial court was considering whether a marital settlement agreement should be set aside under Paragraph B of this rule, the allegations of an affair by one spouse was irrelevant to that determination. Edens v. Edens, 2005-NMCA-033, 137 N.M. 207, 109 P.3d 295, cert. denied, 2005-NMCERT-003. Scope of rule. - The rule concerns itself only with relief from final judgments, orders or proceedings. Foundation Reserve Ins. Co. v. Martin, 1968-NMCA-100, 79 N.M. 737, 449 P.2d 339. Similarity with Federal Rules of Civil Procedure. This rule is identical with Rule 60(b), Federal Rules of Civil Procedure. In the adoption of both rules, it was the intent to retain all the substantive rights protected by the old common-law writs of coram nobis, coram vobis, audita querela and bills of review and bills in the nature of a bill of review, but to eliminate the niceties of form of these writs. State v. Romero, 1966-NMSC-126, 76 N.M. 449, 415 P.2d 837. Paragraph B of this rule is identical to its federal counterpart, except that it omits the passage concerning the United State Code. Cordova v. Larsen, 2004-NMCA-087, 136 N.M. 87, 94 P.3d 830. Generally as to intent and application of Paragraph B. - The intendment of Subdivision (b) (see now Paragraph B) is to carefully balance the competing principles of finality and relief from unjust judgments. The rule should be liberally construed, but the courts must also consider whether there are any intervening equities that make it inequitable to grant relief. Phelps Dodge Corp. v. Guerra, 1978-NMSC-053, 92 N.M. 47, 582 P.2d 819. A person who is represented by counsel and participated in proceedings is estopped, as a matter of law, from seeking relief under Paragraph B based on lack of knowledge of the details of the litigation. In re Estate of Gaines, 1992-NMCA-027, 113 N.M. 652, 830 P.2d 569. Court should be more liberal in setting aside default. - In determining whether the entry of a default should be set aside under Rule 55(c) (see now Rule 1-055 NMRA), the trial court should be more liberal than under Subdivision (b) (see now Paragraph B) of this rule and resolve all doubts in favor of the party declared to be in default. Franco v. Federal Bldg. Serv., Inc., 1982-NMSC-084, 98 N.M. 333, 648 P.2d 791. Because default judgments are disfavored and causes generally should be tried upon their merits, trial courts should be liberal in determining the existence of grounds that satisfy Paragraph B. Sunwest Bank v. Roderiguez, 1989-NMSC-011, 108 N.M. 211, 770 P.2d 533. While the strict criteria of this rule are used when setting aside an entry of default judgment by a trial court, Rule 1-055(C) NMRA merely requires the use of a "good cause" standard when setting aside the entry of a default by a district court clerk. Gandara v. Gandara, 2003-NMCA-036, 133 N.M. 329, 62 P.3d 1211. Judicial errors of law. - Although Paragraph B(1) applies to judicial errors of law, any motion pursuant thereto must be filed before the expiration of the time for appeal. Deerman v. Board of Cnty. Comm'rs, 1993-NMCA-123, 116 N.M. 501, 864 P.2d 317; Resolution Trust Corp. v. Ferri, 1995-NMSC-055, 120 N.M. 320, 901 P.2d 738. 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. Limits on modification of final divorce decree incorporating property settlement agreement. - A final decree of dissolution of marriage which incorporates a property settlement agreement entered into by the parties may not be modified after the expiration of the statutory time for doing so. Wehrle v. Robison, 1979-NMSC-016, 92 N.M. 485, 590 P.2d 633 (1979). Apart from the exceptions to the general rule contained in 40-4-7 NMSA 1978 and Subdivision (b) (see now Paragraph B), once the time has lapsed within which an appeal may be taken from a divorce decree, a court cannot change the original division of the property as an exercise of its continuing jurisdiction. Higginbotham v. Higginbotham, 1979-NMSC-003, 92 N.M. 412, 589 P.2d 196. Party could not claim relief under Subdivisions (b)(1) and (b)(3) (see now Paragraphs B(1) and B(3)) and also under Subdivision (b)(6) (see now Paragraph B(6)). Wehrle v. Robison, 1979-NMSC-016, 92 N.M. 485, 590 P.2d 633. Meaning of "party" in in rem proceeding. - A supervised administration to secure complete settlement of a decedent's estate under the continuing authority of a district court is an in rem proceeding, and in such a proceeding the court may properly hear anyone who claims an interest and who seems in a position to throw light upon the questions under consideration, as such a person is a party in the proceeding. Mathieson v. Hubler, 1978-NMCA-119, 92 N.M. 381, 588 P.2d 1056, cert. denied, 92 N.M. 353, 588 P.2d 554. "Party" in Subdivision (b) (see now Paragraph B) is not limited to technical sense of opposing litigants. Mathieson v. Hubler, 1978-NMCA-119, 92 N.M. 381, 588 P.2d 1056, cert. denied, 92 N.M. 353, 588 P.2d 554. Party affected by decree may bring bill. - A bill in the nature of a bill of review may be brought by one technically not a party to the original action, but whose interests were affected by the court's decree. Mathieson v. Hubler, 1978-NMCA-119, 92 N.M. 381, 588 P.2d 1056, cert. denied, 92 N.M. 353, 588 P.2d 554. Failure to specifically mention rule not significant. - Where request for relief did not specifically mention this rule but simply stated that the claim for a second injury under the workmen's compensation statute had been settled and paid, the manner in which the relief was requested and the nomenclature used was not significant. Phelps Dodge Corp. v. Guerra, 1978-NMSC-053, 92 N.M. 47, 582 P.2d 819. Court approved practice of making findings and conclusions. - While Rule 52 (see now Rule 1-052 NMRA) does not literally require the court to make findings of fact and conclusions of law in connection with a hearing under Subdivision (b) (see now Paragraph B), many courts follow the commendable practice of making findings and conclusions whenever there has been a hearing on the evidence. Mathieson v. Hubler, 1978-NMCA-119, 92 N.M. 381, 588 P.2d 1056, cert. denied, 92 N.M. 353, 588 P.2d 554. Action of trial court, under Subdivision (b) (see now Paragraph B) is discretionary. Adams & McGahey v. Neill, 1954-NMSC-116, 58 N.M. 782, 276 P.2d 913. Setting aside judgment matter within trial court's discretion. - Whether a judgment will be set aside under Subdivision (b) (see now Paragraph B) is ordinarily a matter within the trial court's discretion. Furthermore, the trial court's determination will ordinarily not be reversed except for an abuse of discretion. Home Sav. & Loan Ass'n v. Esquire Homes, Inc., 1974-NMSC-088, 87 N.M. 1, 528 P.2d 645; Freedman v. Perea, 1973-NMSC-124, 85 N.M. 745, 517 P.2d 67; Marberry Sales, Inc. v. Falls, 1979-NMSC-022, 92 N.M. 578, 592 P.2d 178; Desjardin v. Albuquerque Nat'l Bank, 1979-NMSC-052, 93 N.M. 89, 596 P.2d 858. Setting aside a judgment under Subdivision (b) (see now Paragraph B) is discretionary with the trial court, and appellate courts will not interfere with the action of the trial court except upon a showing of an abuse of discretion. United Salt Corp. v. McKee, 1981-NMSC-052, 96 N.M. 65, 628 P.2d 310. Court should be liberal in determining whether excuse or defense is good. - Under Subdivision (b) (see now Paragraph B), a trial court should be liberal in determining what is a good excuse and what is a meritorious defense. The court must balance the policy in favor of trials on the merits with the conflicting policy in favor of the finality of judgments. Franco v. Federal Bldg. Serv., Inc., 1982-NMSC-084, 98 N.M. 333, 648 P.2d 791. Meritorious defense.- Parties seeking to set aside a default judgment must assert a valid legal theory and allege, with some particularity, facts that would support that legal theory. Such facts are to be taken as true, but in order to reopen the judgment and proceed to trial, the factual issues presented must be genuine. Magnolia Mountain Limited, Partners, Ltd. v. Ski Rio Partners, Ltd., 2006-NMCA-027, 139 N.M. 288, 131 P.3d 675. Meritorious defense analysis. - Factual disputes in the context of the meritorious defense analysis must be genuine and attempts to create sham issues of fact will not be sufficient to support a reopening of a default judgment. Magnolia Mountain Limited, Partners, Ltd. v. Ski Rio Partners, Ltd., 2006-NMCA-027, 139 N.M. 288, 131 P.3d 675. Defendant failed to establish a meritorious defense. - Where plaintiff obtained a default judgment against defendant in a mortgage foreclosure action; after a special master sold the property at public auction, defendant moved to set aside the default judgment and to vacate the foreclosure sale; after the district court entered the default judgment, plaintiff placed defendant's loan under the federal Making Homes Affordable Program pursuant to a servicer participation agreement with Fannie Mae; although defendant alleged that plaintiff failed to comply with HAMP, defendant was not a third-party beneficiary of the HAMP servicer participation agreement and could not enforce compliance with HAMP; and although defendant alleged that plaintiff was equitably estopped from proceeding with the foreclosure based on plaintiff's alleged representations regarding approval of a loan modification, defendant's evidence failed to establish that plaintiff made false representations or concealed material facts regarding the loan modification, defendant's defenses of failure to comply with HAMP and estoppel were not meritorious defenses to the default judgment for foreclosure. Charter Bank v. Francoeur, 2012-NMCA-078, 287 P.3d 333, cert. granted, 2012-NMCERT-008. Discretion in setting aside judgment is abused when judge acts arbitrarily or unreasonably under the particular circumstances. McKee v. United Salt Corp., 1980-NMCA-175, 96 N.M. 382, 630 P.2d 1237, aff'd in part, rev'd on other grounds, 1981-NMSC-052, 96 N.M. 65, 628 P.2d 310. Relief not available. - Unsuccessful plaintiff, who had opposed defendant's motion for transfer of venue on grounds of forum non conveniens, was not entitled to relief under this rule based on a case decided subsequent to the ruling on the venue motion. Stein v. Alpine Sports, 1998-NMSC-040, 126 N.M. 258, 968 P.2d 769. Negligent failure to perform settlement agreement does not constitute a basis in equity to set aside a stipulated judgment that was filed in accordance with the settlement agreement itself. Builders Contract Interiors, Inc. v. Hi-Lo Industries, Inc., 2006-NMCA-053, 139 N.M. 288, 131 P.3d 675. Relief is disfavored under this rule if the grounds for the relief were known to the movant in time to bring a motion under Rule 1-059 NMRA. Martinez v. Friede, 2004-NMSC-006, 135 N.M. 171, 86 P.3d 596. Remedy of new trial. - Rule 1-059 is not the only authority upon which the district court may order a new trial. A new trial may also be an available remedy under Paragraph B of this rule. Martinez v. Friede, 2004-NMSC-006, 135 N.M. 171, 86 P.3d 596. Nothing in the text of the rules bars the district court from sua sponte reopening judgment and granting a new trial based on Paragraph B of this rule, even though motion for new trial has been automatically denied. Martinez v. Friede, 2004-NMSC-006, 135 N.M. 171, 86 P.3d 596. No relief for party choosing unfortunate course of action. - Subdivision (b) (see now Paragraph B) is not to be invoked to give relief to a party who has chosen a course of action which in retrospect appears unfortunate. Benavidez v. Benavidez, 1983-NMSC-032, 99 N.M. 535, 660 P.2d 1017. Failures by attorneys. - Defendants' claim that they were entitled to relief, predicated on the contention that they should not be bound by the failures of their attorneys, was contrary to settled law. Padilla v. Estate of Griego, 1992-NMCA-021, 113 N.M. 660, 830 P.2d 1348. Motion denied where merely reasserts contention previously found against party. - Where a party does not appeal a judgment against him and finds himself in contempt of court for refusing to obey court orders, a motion under this rule which raises nothing new but merely reasserts a contention which was previously found against him will be denied. Gedeon v. Gedeon, 1981-NMSC-065, 96 N.M. 315, 630 P.2d 267. Subdivision (b) (see now Paragraph B) is particularly well-designed to cover situation where, in a final order that a foreign judgment is entitled to full faith and credit, there is a failure to reduce the foreign judgment to domestic judgment; it provides an appropriate procedure for correcting the omission. Barker v. Barker, 1980-NMSC-024, 94 N.M. 162, 608 P.2d 138. Section 39-1-1 NMSA 1978 does not conflict with Subdivision (b) (see now Paragraph B). Gengler v. Phelps, 1976-NMCA-114, 89 N.M. 793, 558 P.2d 62. Since statute restores to courts absolute control over their judgments. - Section 39-1-1 NMSA 1978 does not conflict with the right to grant relief from judgments under Subdivision (b) (see now Paragraph B), that statute only restored to district courts the absolute control they had over their judgments during the term at which they were entered. Laffoon v. Galles Motor Co., 1969-NMCA-006, 80 N.M. 1, 450 P.2d 439; Martin v. Leonard Motor-El Paso, 1965-NMSC-060, 75 N.M. 219, 402 P.2d 954. Paragraph B applies to criminal judgments claimed void. - Although Subdivision (b) (see now Paragraph B) is a civil rule, where a prisoner had served his sentence and had been released, this civil rule could be utilized to seek relief from a criminal judgment claimed to be void, because of the intent to retain all substantive rights protected by the old writ of coram nobis. State v. Lucero, 1977-NMCA-021, 90 N.M. 342, 563 P.2d 605, cert. denied, 90 N.M. 636, 567 P.2d 485. Rule authorizes court to grant relief. - Courts are authorized by this rule to relieve a party from any final judgment for good cause shown. Martin v. Leonard Motor-El Paso, 1965-NMSC-060, 75 N.M. 219, 402 P.2d 954; Desjardin v. Albuquerque Nat'l Bank, 1979-NMSC-052, 93 N.M. 89, 596 P.2d 858. Relief initiated on judge's motion. - Subdivision (b) (see now Paragraph B) provides that the relief therein provided may be granted "on motion . . ." and in the present case, no motion was filed; the judge can initiate relief from a judgment or order under this rule on his own motion. Martin v. Leonard Motor-El Paso, 1965-NMSC-060, 75 N.M. 219, 402 P.2d 954; Desjardin v. Albuquerque Nat'l Bank, 1979-NMSC-052, 93 N.M. 89, 596 P.2d 858. Under Subdivision (b) (see now Paragraph B), the trial court has authority to vacate final judgment and to grant relief therefrom sua sponte. Barker v. Barker, 1980-NMSC-024, 94 N.M. 162, 608 P.2d 138. Purpose of judge initiating relief from a judgment or order under this rule on his own motion is to direct the court's attention to the necessity for relief; the rule does not deprive the court of the power to act in the interest of justice when attention has been called to the need by means other than a motion. Martin v. Leonard Motor-El Paso, 1965-NMSC-060, 75 N.M. 219, 402 P.2d 954. Meaning of collateral attack on judgment. - A collateral attack is an attempt to impeach the judgment by matters dehors the record, in an action other than that in which it was rendered; an attempt to avoid, defeat or evade it, or deny its force and effect, in some incidental proceeding not provided by law for the express purpose of attacking it. Barela v. Lopez, 1966-NMSC-163, 76 N.M. 632, 417 P.2d 441. Jurisdictional error may be raised in collateral attack after the judgment has been entered. In re Estate of Kemnitz, 1981-NMCA-013, 95 N.M. 513, 623 P.2d 1027. Motions under Paragraph B filed in original action. - When proceeding by motion under the specific subparagraphs of Paragraph B, the presumption is that the motion must be filed in the district court and in the action in which the judgment was rendered; thus, a wife's motion to set aside a property settlement was an improper collateral attack since it was made in a different action in a different court. Sanders v. Estate of Sanders, 1996-NMCA-102, 122 N.M. 468, 927 P.2d 23. Relief from judgment required a collateral attack by an independent action. - Where plaintiff filed a complaint for declaratory judgment that a 2009 default foreclosure judgment was void for lack of standing, but failed to assert a claim to set aside the 2009 default foreclosure judgment on the basis of fraud, but rather raised the fraud theory for the first time in a motion for summary judgment, plaintiff was procedurally barred from seeking relief from judgment because of fraud, because plaintiff's 2012 complaint did not assert an independent claim to set aside the judgment for fraud. Phoenix Funding, LLC v. Aurora Loan Services, LLC, 2017-NMSC-010, rev'g 2016-NMCA-010, 365 P.3d 8. Equity action attacking validity of judgment and seeking injunction. - Under the next to last sentence of Subdivision (b) (see now Paragraph B), a party can bring an action in equity attacking the validity of a judgment and seeking to enjoin its enforcement, and this action may be brought in the court that rendered the original judgment, in another court, or by collateral attack in any proceeding in which the validity of the judgment is in issue. Hort v. General Elec. Co., 1978 -NMCA-125, 92 N.M. 359, 588 P.2d 560, cert. denied, 92 N.M. 353, 588 P.2d 554 (1979). Meaning of direct attack on judgment. - A direct attack on a judgment is an attempt to avoid or correct it in some manner provided by law and in a proceeding instituted for that very purpose, in the same action and in the same court. Barela v. Lopez, 1966-NMSC-163, 76 N.M. 632, 417 P.2d 441. Judgments of district courts are presumptively correct. State ex rel. Dar Tile Co. v. Glens Falls Ins. Co., 1967 -NMSC-206, 78 N.M. 435, 432 P.2d 400; Phelps Dodge Corp. v. Guerra, 1978-NMSC-053, 92 N.M. 47, 582 P.2d 819. Motions under Subdivision (b) (see now Paragraph B), do not affect finality of judgment, but a motion under Rule 59 (see now Rule 1-059 NMRA), made within 10 days, does affect finality and the running of the time for appeal. Perez v. Perez, 1966-NMSC-010, 75 N.M. 656, 409 P.2d 804. Applicability of Rule 1-059 NMRA. - When the grounds for a Paragraph B motion are or should have been known within the ten-day time limit for a 1-059B NMRA motion for a new trial, it is inappropriate to try to circumvent that time limit by resorting to the longer time limit afforded by Paragraph B of this rule. This rationale is equally appropriate in the context of a 1-059E NMRA motion to amend the judgment. Dozier v. Dozier, 1994-NMCA-080, 118 N.M. 69, 878 P.2d 1018. Final judgment should not be lightly disturbed; to allow a party to correct alleged errors of law at any time by means of this rule would significantly weaken the policy of finality embodied in the rules. Phelps Dodge Corp. v. Guerra, 1978-NMSC-053, 92 N.M. 47, 582 P.2d 819. Subdivision (b) (see now Paragraph B) may be invoked only upon showing of exceptional circumstances. Parks v. Parks, 1978-NMSC-008, 91 N.M. 369, 574 P.2d 588. Paragraph B applies to arbitration awards. - District court retained jurisdiction over arbitration award even though buyers' notice of appeal from arbitration was untimely. The arbitration award is merely a nonenforceable order until the district court adopts the award as the court's final judgment following the time to file an appeal. After the district court has adopted the award as its final judgment, Paragraph B applies to set aside the judgment just as Paragraph B would apply to set aside any final judgment of the district court. Aragon v. Westside Jeep/Eagle, 1994-NMSC-060, 117 N.M. 720, 876 P.2d 235. Judgment rendered without jury final, when it passes from court's control. - In this jurisdiction there are no terms of court except for jury trials and no statute extending control of a court over its judgments, except in case of defaults (105-843, C.S. 1929, now superseded), and in cases of irregularly entered judgments (105-846, C.S. 1929, now superseded), and it necessarily follows that final judgments rendered by the district courts in cases tried without a jury become final when rendered and pass from the control of the court. State ex rel. Baca v. Board of Comm'rs, 1916-NMSC-091, 22 N.M. 502, 165 P. 213; Fullen v. Fullen, 1915-NMSC-091, 21 N.M. 212, 153 P. 294; Coulter v. Board of Comm'rs, 1916-NMSC-040, 22 N.M. 24, 158 P. 1086 (decided under former law). Applicability to motion for discovery sanctions. - This rule is not implicated when an award for sanctions concerns a collateral matter, such as an abuse of the discovery process. Gonzales v. Surgidev Corp., 1995-NMSC-047, 120 N.M. 151, 899 P.2d 594. Rule not substitute for appeal. - Although this rule provides a reservoir of equitable power to do justice, it is not to be used as a substitute for appeal. Phelps Dodge Corp. v. Guerra, 1978-NMSC-053, 92 N.M. 47, 582 P.2d 819; Resolution Trust Corp. v. Ferri, 1995-NMSC-055, 120 N.M. 320, 901 P.2d 738. Not means of recovering additional separate benefits. - In a workmen's compensation case, this rule does not provide a procedural method to recover additional benefits for vocational rehabilitation independent of a judgment already entered. Ruiz v. City of Albuquerque, 1978-NMCA-015, 91 N.M. 526, 577 P.2d 424, cert. denied, 91 N.M. 491, 576 P.2d 297. Rule not intended to prolong time to appeal. - This rule was not intended to extend the time allowed for taking an appeal and it cannot be employed for that purpose. Pettet v. Reynolds, 1960-NMSC-133, 68 N.M. 33, 357 P.2d 849. Subdivision (b) (see now Paragraph B) may not be used to toll the time for taking an appeal from a final divorce decree and property settlement. Barker v. Barker, 1979-NMSC-062, 93 N.M. 198, 598 P.2d 1158. A motion for relief from a judgment or order under this rule is not intended to extend the time for taking an appeal and cannot be used as a substitute for an appeal. The grant or denial of the motion is discretionary with the trial court. Gedeon v. Gedeon, 1981-NMSC-065, 96 N.M. 315, 630 P.2d 267. No relief during pendency of appeal. - A trial court cannot grant relief pursuant to Paragraph B of this rule during the pendency of an appeal. Hall v. Hall, 1992-NMCA-097, 114 N.M. 378, 838 P.2d 995. Reasonable time provision only limitation on making motion. - The only time limit on a motion seeking relief under this rule is that it be made within a reasonable time. It was never intended that this rule be used to toll the time for an appeal, and in the face of the many decisions that the taking of an appeal within the time provided is jurisdictional, it may not be so used. Chavez v. Village of Cimarron, 1958-NMSC-145, 65 N.M. 141, 333 P.2d 882. Circumstances of case govern "reasonable time" provision. - What constitutes "reasonable time" under the rules depends upon the circumstances of the particular case. Eaton v. Cooke, 1964-NMSC-137, 74 N.M. 301, 393 P.2d 329. Where court of appeals lacked jurisdiction to review granting of summary judgment because of failure to file a timely appeal, the trial court's decision not to reopen the judgment was a final and appealable judgment which the court of appeals could review. James v. Brumlop, 1980-NMCA-043, 94 N.M. 291, 609 P.2d 1247. Timely allowance of appeal is jurisdictional to place a case on the docket of the supreme court for review. Chavez v. Village of Cimarron, 1958-NMSC-145, 65 N.M. 141, 333 P.2d 882. Delay in asserting invalidity of divorce decree due to the trial court's lack of jurisdiction is not a basis for applying laches. Heckathorn v. Heckathorn, 1967-NMSC-017, 77 N.M. 369, 423 P.2d 410. During pendency of appeal court is without power to vacate, alter or amend the judgment under this rule, whether the motion is made prior to or after the appeal is taken, except with permission of the appellate court. A party seeking such relief must file a motion in the appropriate appellate court requesting that the case be remanded to the trial court for consideration of the motion. State ex rel. Bell v. Hansen Lumber Co., 1974-NMSC-051, 86 N.M. 312, 523 P.2d 810. From and after the filing of the notice of appeal from a judgment, the trial court was without jurisdiction to take any further step in regard to the motion to alter or amend judgment. Meeker v. Walker, 1969-NMSC-053, 80 N.M. 280, 454 P.2d 762. When filing of notice of appeal from order nullity. - Where order granting a rehearing on dismissal order was filed before the notice of appeal, the filing of the notice of appeal from the order was a nullity. Gray v. Flint, 1970-NMSC-024, 81 N.M. 222, 465 P.2d 279. Waiver of objection to late filing. - Trial court's dismissal of plaintiff's original complaint and grant of leave to file amended complaint within 10 days relieved plaintiffs of their obligation of filing an amended complaint within 10 days by treating a late filed amended complaint as properly and timely filed, and defendant who took no action to have an order of judgment dismissal entered and who did not move to have amended complaint stricken waived any right to object to late filing. Garver v. Public Serv. Co., 1966 -NMSC-261, 77 N.M. 262, 421 P.2d 788. Appeal from denial of motion under Subdivision (b) (see now Paragraph B) cannot review propriety of judgment sought reopened; the trial court can be reversed only if it is found to have abused its discretion in refusing to grant the motion. James v. Brumlop, 1980-NMCA-043, 94 N.M. 291, 609 P.2d 1247. When remand permissible. - A case will be remanded only where the showing reasonably indicates that, if leave is given, the trial court might properly grant the motion. A denial of the relief sought will not necessitate the protection of a new appeal. State ex rel. Bell v. Hansen Lumber Co., 1974-NMSC-051, 86 N.M. 312, 523 P.2d 810. Reference to pleadings and record when judgment obscure. - If the entry of a judgment is so obscure as not to express the final determination with sufficient accuracy, reference may be had to the pleadings and to the entire record, and in a case of doubt regarding the signification of a judgment, or any part thereof, the whole record may be examined for the purpose of removing the doubt. State ex rel. Reynolds v. Lewis, 1973-NMSC-035, 84 N.M. 768, 508 P.2d 577. When doubtful record exists, presumption of correctness of lower court's decision. - Where plaintiff failed to include facts and testimony in the record to support his contention that there were insufficient facts or evidence to support the court's order vacating a default judgment and did not request a transcript of the proceedings, the appellate court followed 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. Order not appealable. - Orders granting relief pursuant to Paragraph B of this rule ordinarily are not appealable. Hall v. Hall, 1993-NMCA-038, 115 N.M. 384, 851 P.2d 506, holding that Albuquerque Prods. Credit Ass'n v. Martinez, 1978-NMSC-003, 91 N.M. 317, 573 P.2d 672 implicitly overruled the line of cases that includes Starnes v. Starnes, 1963-NMSC-081, 72 N.M. 142, 381 P.2d 423, Hoover v. City of Albuquerque, 1952-NMSC-070, 56 N.M. 525, 245 P.2d 1038, and Singleton v. Sanabrea, 1930-NMSC-092, 35 N.M. 205, 292 P. 6. Decision may be reviewed on appeal taken from judgment in reopened case. - Since the decision to set aside a judgment under Subdivision (b) (see now Paragraph B) is not immediately appealable, it may be reviewed in an appeal which is properly taken from the judgment entered in the reopened case. Jemez Properties, Inc. v. Lucero, 1979-NMCA-162, 94 N.M. 181, 608 P.2d 157, cert. denied, 94 N.M. 628, 614 P.2d 545 (1980). Sham issue of fact. - District court did not abuse discretion in reinstating a default judgment in a foreclosure action where defendant changed its factual allegations significantly over the course of the proceedings to set aside the default judgment, which could have led the court to believe that defendant was attempting to create a sham issue of fact. Magnolia Mountain Limited, Partners, Ltd. v. Ski Rio Partners, Ltd., 2006-NMCA-027, 139 N.M. 288, 131 P.3d 675. B. MISTAKES, INADVERTENCE, SURPRISE OR EXCUSABLE NEGLECT. Excusable neglect standard. - The standard for relief for excusable neglect is an equitable standard which requires the court to take into consideration all relevant circumstances related to a party's neglect, including the danger of prejudice to the non-moving party, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith. Kinder Morgan CO2 Company, L.P. v. New Mexico Taxation & Revenue Dep't, 2009-NMCA-019, 145 N.M. 579, 203 P.3d 110, cert. denied, 2009-NMCERT-001. Where the district court granted summary judgment to taxpayer on the issue of liability and left the amount of the refund due to the taxpayer to be determined at trial; the parties entered into settlement negotiations to resolve the amount of the refund; the court dismissed the case without prejudice for lack of prosecution; the taxpayer's counsel received notice that the case had been dismissed for lack of prosecution and the it would be reinstated if good cause were shown in a motion filed within thirty days; the taxpayer's counsel failed to enter a reminder of the deadline for filing a motion in counsel's calendaring system; the taxpayer delayed two months to file a motion for relief; there was no evidence that the taxpayer acted in bad faith; and there was no evidence that the state was prejudiced by the delay, the court did not abuse its discretion in finding excusable neglect. Kinder Morgan CO2 Co., L.P. v. N.M. Taxation & Revenue Dep't, 2009-NMCA-019, 145 N.M. 579, 203 P.3d 110, cert. denied, 2009-NMCERT-001. Subdivision (b)(1) (see now Paragraph B(1)) is not inconsistent with grounds for relief stated in 45-3-412 NMSA 1978 regarding formal testacy orders. Mathieson v. Hubler, 1978-NMCA-119, 92 N.M. 381, 588 P.2d 1056, cert. denied, 92 N.M. 353, 588 P.2d 554. Setting aside offer of judgment. - Paragraph B of this rule applies to a trial court's consideration of whether to set aside an offer of judgment made under Rule 1-068 NMRA. Fuller v. Bachen, 1999-NMCA-130, 128 N.M. 151, 990 P.2d 825. "Excusable neglect". - A party, served with an initial summons and thus having actual notice of the litigation, may not claim "excusable neglect" under Paragraph B for not being aware of subsequent proceedings in the matter. In re Estate of Gaines, 1992-NMCA-027, 113 N.M. 652, 830 P.2d 569. The neglect by defense counsel was not excusable, where counsel of record filed no response to requests for admission and no response to the motion for summary judgment, they did not appear at the pretrial conference, at which the motion for summary judgment was heard, they did not respond to the notice of presentment of the order for summary judgment, nor did they appear at court at the time that the judgment was presented. Padilla v. Estate of Griego, 1992-NMCA-021, 113 N.M. 660, 830 P.2d 1348. Where there is excusable neglect and defendants have meritorious defense, in accordance with this rule, and there are no intervening equities, a default judgment should be set aside and the case decided on its merits. Dean Witter Reynolds, Inc. v. Roven, 1980-NMSC-029, 94 N.M. 273, 609 P.2d 720. Where an employer involved in a workmen's compensation case presents uncontroverted evidence that its failure to file a timely answer resulted from excusable neglect, mistake and inadvertence, and specified meritorious defenses involving statutes of limitation and no accidental injury, the trial court abused its discretion in denying the motion to set aside the default judgment. Lopez v. Sears, Roebuck & Co., 1981-NMCA-058, 96 N.M. 143, 628 P.2d 1139. Neglect held not excusable. - Where defendant's insurer failed to take proper action to avoid default judgment, and where defendant showed a total lack of diligence by neglecting to inquire into the case for twenty-two months, and failed to provide an explanation for insurer's conduct, there was no basis for vacating the default judgment. Adams v. Para-Chem Southern, 1998-NMCA-161, 126 N.M. 189, 967 P.2d 864. No "mistake" where court properly acts upon information before it. - Where the court properly acts upon the information before it at the time of judgment, there is no judicial error at that time, and thus no "mistake" which can be corrected under Subdivision (b)(1) (see now Paragraph B(1)). Benavidez v. Benavidez, 1983-NMSC-032, 99 N.M. 535, 660 P.2d 1017. Mistake in conception of divorce decree falls under Paragraph B(1). - A mistake in a wife's conception of the nature of her husband's pension plan as treated in her divorce decree is a substantive flaw rather than a technical one. Where the decree was prepared by the wife's attorney and adopted by the trial court without any appearances by the husband and there is nothing in the record to suggest that the husband misrepresented the nature of the pension plan to his wife, the mistake is chargeable to the wife and falls within Subdivision (b)(1) (see now Paragraph B(1)), specifying a one-year period of limitation within which a mistake may be asserted to modify a decree. Parker v. Parker, 1979-NMSC-037, 92 N.M. 710, 594 P.2d 1166. Amendment of foreclosure judgment. - Trial courts at all times have jurisdiction over their final judgments to amend them, in material matters, to speak the truth. Thus where judgment of foreclosure, through error or mistake, ordered only a part of the property described in the mortgage to be sold to satisfy the judgment, trial court had jurisdiction five months after entry of the judgment to correct and amend it to speak the truth. De Baca v. Sais, 1940-NMSC-006, 44 N.M. 105, 99 P.2d 106 (decided under former law). Party may be relieved of judgment entered through surprise in a proper case. Battersby v. Bell Aircraft Corp., 1958-NMSC-135, 65 N.M. 114, 332 P.2d 1028. This rule may not be used to aid counsel who neglect to prosecute an appeal. Parks v. Parks, 1978-NMSC-008, 91 N.M. 369, 574 P.2d 588; Hort v. General Elec. Co., 1978 -NMCA-125, 92 N.M. 359, 588 P.2d 560, cert. denied, 92 N.M. 353, 588 P.2d 554. C. NEWLY DISCOVERED EVIDENCE. New evidence of paternity. - Where both a default judgment and a subsequent stipulated judgment determined that respondent was the child's parent and was obligated to pay child support; respondent had requested a paternity test when respondent was served with the petition to determine the child's parentage; respondent signed the stipulated judgment to obtain a driver's license; a paternity test that was administered several years after the stipulated judgment showed that respondent was not the child's biological parent; the child's biological parent had falsely represented to HSD that respondent was the child's biological parent, but at a hearing several years later, the biological parent named another person as the child's biological parent; the child's biological parents had been deported to Mexico; the child lived with the child's grandparent; and respondent had no personal relationship with the child, under the circumstances, the determination that respondent was not the child's biological parent after respondent's admission that respondent was the child's parent qualified as an extraordinary circumstance under Rule 1-060 NMRA sufficient to permit relief from respondent's obligations to pay accrued and prospective child support. State ex rel. HSD v. Rawls, 2012-NMCA-052, 279 P.3d 766. Prerequisites for granting new trial on grounds of newly discovered evidence. - A motion for a new trial on the grounds of newly discovered evidence is addressed to the discretion of the trial court, and the prerequisites for granting of a new trial are: (1) it must be such as will probably change the result if a new trial is granted; (2) it must have been discovered since the trial; (3) it must be such as could not have been discovered before the trial by the exercise of due diligence; (4) it must be material to the issue; (5) it must not be merely cumulative to the former evidence; (6) it must not be merely impeaching or contradictory to the former evidence. If the movant fails to establish any of the six grounds the motion is properly denied. Hill v. Burnworth, 1973-NMCA-135, 85 N.M. 615, 514 P.2d 1312. A new trial should not be granted solely on the ground that a post-trial event undercuts a prediction which formed the basis for the assessment of damages. Fowler-Propst v. Dattilo, 1991-NMCA-030, 111 N.M. 573, 807 P.2d 757. Evidence discoverable by due diligence precludes new trial. - Where the trial court found that the evidence was not such as could not have been discovered by the exercise of due diligence prior to trial and that the evidence was not of a character as would with any reasonable probability compel a different result in the event of a new trial, then it was not error to refuse a new trial as both of these findings, the "due diligence" and "probably change the result," necessarily involve the trial court's evaluation of the evidence. Hill v. Burnworth, 1973-NMCA-135, 85 N.M. 615, 514 P.2d 1312. Contradictory inferences as to whether evidence would have been discovered before trial by the exercise of due diligence meant that the appellate court could not say the trial court abused its discretion in denying the motion on this ground. Hill v. Burnworth, 1973-NMCA-135, 85 N.M. 615, 514 P.2d 1312 Evaluation of new testimony. - Although testimony may be new, it must be evaluated in the light of the evidence testified to at trial and the physical facts of the occurrence. Hill v. Burnworth, 1973-NMCA-135, 85 N.M. 615, 514 P.2d 1312 Grounds for motion for new trial distinguished. - A motion for a new trial on grounds of newly discovered evidence presents a somewhat different question than a motion for a new trial based on alleged erroneous instructions and rulings on matters presented to the trial court in the first instance. Public Serv. Co. v. First Jud. Dist. Ct., 1959 -NMSC-002, 65 N.M. 185, 334 P.2d 713. Where the fact of a modification of a jury instruction on damages for pain and suffering was known to the plaintiff and the possible role of the modification in the jury's failure to award damages for past pain and suffering was known or should have been known to the plaintiff when she filed her motion for a new trial, plaintiff's motion for a new trial could not be characterized as motion under Paragraph B of this rule and plaintiff was relegated to the remedy provided by Rule 1-059 NMRA. Martinez v. Friede, 2003-NMCA-081, 133 N.M. 834, 70 P.3d 1273, cert. granted, 133 N.M. 727, 69 P.3d 237. D. FRAUD. Predictions of spouses' future incomes. - Where the evidence establishes that each party trusted the other during mediation to predict future earning potential, and, as it turned out, wife may have underestimated her future income, while husband overestimated his, these inaccurate predictions do not amount to fraud or misrepresentation in that there was no showing that wife knowingly misrepresented what her income would be and therefore husband was not entitled to relief under Paragraph B(3) of this rule. Edens v. Edens, 2005-NMCA-033, 137 N.M. 207, 109 P.3d 295, cert. denied, 2005-NMCERT-003. Motions under this rule are addressed to sound discretion of the court. Citty v. Citty, 1974-NMSC-058, 86 N.M. 345, 524 P.2d 517; Kilcrease v. Campbell, 1980-NMSC-100, 94 N.M. 764, 617 P.2d 153. No special definition of fraud when under rule. - Fraud and misrepresentation under this rule require the same elements as fraud in the ordinary sense. An actionable fraud is a misrepresentation of a fact, known to be untrue by the maker, and made with an intent to deceive and to induce the other party to act upon it with the other party relying upon it to his injury or detriment. Unser v. Unser, 1974-NMSC-063, 86 N.M. 648, 526 P.2d 790. Time limitation. - Final judgments may be reopened because of fraud only if the motion to do so is made within a year after entry of the judgment. However, specific provision is made for courts to entertain independent actions for relief from judgments because of fraud upon the court. State ex rel. Speer v. District Court, 1968-NMSC-095, 79 N.M. 216, 441 P.2d 745. Time limit applies despite proof of misrepresentation or misconduct. - Even if he is able to prove misrepresentation or misconduct, a party may still be barred by the time limit applicable to this rule. Wehrle v. Robison, 1979-NMSC-016, 92 N.M. 485, 590 P.2d 633. Prima facie basis for relief. - Where the motion alleged that the biological mother misrepresented her intention to abide by the settlement agreement once the case was dismissed with prejudice, this allegation amounted to a prima facie basis for relief under this rule. A.C. v. C.B., 1992-NMCA-012, 113 N.M. 581, 829 P.2d 660. Motion properly denied in absence of fraud. - Defendant-appellant's motion pursuant to this rule to set aside a paragraph of a certain stipulation which she had entered into with plaintiff-appellee denied, as it was determined that the husband was not guilty of any fraud, misrepresentation or misconduct and that there was no mistake of fact or law as to the stipulations. Oberman v. Oberman, 1971-NMSC-046, 82 N.M. 472, 483 P.2d 1312. Where property stipulation and agreement are entered into without fraud or imposition and are approved by the trial court, the stipulation and agreement may not be set aside. Barker v. Barker, 1979-NMSC-062, 93 N.M. 198, 598 P.2d 1158. Setting aside probate decree for fraud. - In order to have a final decree in probate set aside for fraud, a recognized ground for equitable intervention, the complainant must show there existed at the time the facts became known no adequate remedy at law either in the probate court or on appeal therefrom. Rubalcava v. Garst, 1956-NMSC-017, 61 N.M. 10, 293 P.2d 656. No presumption that separation agreements necessarily fraudulent. - While it is true that if a fiduciary relationship is shown and that as a result of confidence reposed by the one, dominion and influence resulting from such confidence can be exercised by the other, fraud and undue influence may be presumed to exist when an advantage is gained by the dominant party at the expense of the confiding party; nevertheless, the modern trend holds that when a husband and wife have separated or are about to separate and seek by agreement to settle their respective rights and obligations, they deal at arm's length. There is no presumption that separation agreements are fraudulent, and that one who asserts the invalidity of such agreement has the burden of proving that it is tainted by fraud, duress or overreaching. Unser v. Unser, 1974-NMSC-063, 86 N.M. 648, 526 P.2d 790. E. VOID JUDGMENT. Where judgment void, no time limitation. - Where the judgment is void, this rule does not purport to place any limitation of time. Eaton v. Cooke, 1964-NMSC-137, 74 N.M. 301, 393 P.2d 329. There is no limitation of time within which a motion must be filed under the provisions of this rule. State v. Romero, 1966-NMSC-126, 76 N.M. 449, 415 P.2d 837. Timeliness of motion filed after sentence of probation served. - Where defendant filed a motion for relief from judgment and to withdraw plea pursuant to 1-060(B)(4) NMRA after she had completely served her sentence of probation, claiming that she had not been advised of the immigration consequences of her plea, that she faced deportation as a result of her conviction, and that her criminal judgment was void, defendant's motion was timely and the district court properly considered defendant's motion under 1-060(B)(4) NMRA, because there is no limitation of time within which a motion must be filed under the provisions of the rule. State v. Gutierrez, 2016-NMCA-077. Doctrine of practical finality applied. - Where the defendant filed a motion to withdraw her plea, pursuant to 1-060(B)(4) NMRA, after she had completed a sentence imposed after entry of the plea, the district court's order granting the 1-060(B)(4) NMRA motion to withdraw defendant's plea is a final order from which the state may appeal under the doctrine of practical finality, because the New Mexico Supreme Court's recent adoption of 5-803 NMRA to govern petitions for post-sentence relief indicates the Supreme Court's intention to permit appeals in cases involving post-sentence matters involving criminal convictions. State v. Gutierrez, 2016-NMCA-077. Attack on subject-matter jurisdiction may be made at any time in the proceedings. It may be made for the first time upon appeal, or it may be made by a collateral attack in the same or other proceedings long after the judgment has been entered. Chavez v. County of Valencia, 1974-NMSC-035, 86 N.M. 205, 521 P.2d 1154. Writ of coram nobis treated as motion. - A petition for a writ of coram nobis attacking the validity of a prior judgment is properly a motion under this rule. State v. Raburn, 1966-NMSC-174, 76 N.M. 681, 417 P.2d 813. Determination of improper service. - The husband's motion for relief from a default decree, brought almost two years after issuance and based on the wife's misrepresentation that she was unaware of his whereabouts and could not personally serve him when she filed the petition for dissolution of the marriage, was not based on fraud but, rather, on the ground that the judgment was void; thus, it was timely filed and an evidentiary hearing was required to determine whether service had been proper. Classen v. Classen, 1995-NMCA-022, 119 N.M. 582, 893 P.2d 478. No discretion on part of trial court under Paragraph B(4). - Although the granting of relief under other portions of this rule has been held to be discretionary, and it has been held that this discretion may be invoked only upon the showing of exceptional circumstances, there is no discretion on the part of the trial court under Subdivision (b)(4) (see now Paragraph B(4)), as a motion under this part of the rule differs markedly from motions under the other clauses of Subdivision (b) (see now Paragraph B). Chavez v. County of Valencia, 1974-NMSC-035, 86 N.M. 205, 521 P.2d 1154. There is no discretion on the part of a district court to set aside a void judgment. Such a judgment may be attacked at any time in a direct or collateral action. Nesbit v. City of Albuquerque, 1977-NMSC-107, 91 N.M. 455, 575 P.2d 1340. Order granting relief is tested by usual principles of finality. Thus, where the court, in addition to determining that there is a valid ground for relief under this rule, at the time makes a redetermination of the merits, its order is final, since it leaves nothing more to be adjudged. Albuquerque Prods. Credit Ass'n v. Martinez, 1978-NMSC-003, 91 N.M. 317, 573 P.2d 672. Where an order granting relief merely vacates the judgment and leaves the case pending for further determination, the order is akin to an order granting a new trial and is interlocutory and nonappealable. Albuquerque Prods. Credit Ass'n v. Martinez, 1978-NMSC-003, 91 N.M. 317, 573 P.2d 672; Jemez Properties, Inc. v. Lucero, 1979-NMCA-162, 94 N.M. 181, 608 P.2d 157, cert. denied, 94 N.M. 628, 614 P.2d 545 (1980). Rights not cumulative but alternative. - If relief is denied under Subdivision (b)(4) (see now Paragraph B(4)) then a party has a right to appeal, but the two approaches of direct appeal and collateral attack followed by appeal are alternative rights, not cumulative rights. Hort v. General Elec. Co., 1978 -NMCA-125, 92 N.M. 359, 588 P.2d 560, cert. denied, 92 N.M. 353, 588 P.2d 554 (1979). Issue of voidness moot where order expired. - Issue of whether an order transferring child custody under the Family Violence Protection Act should have been declared void under Paragraph B(4) was moot since the order had expired. Lucero v. Pino, 1997-NMCA-089, 124 N.M. 28, 946 P.2d 232. F. OTHER REASON JUSTIFYING RELIEF. Additur not warranted. - Where defendant, who was an art appraiser, purchased two paintings from plaintiff for $4,500; defendant thought that the paintings had a value of $35,000 and would have paid as much as $16,000 for the paintings; plaintiff understood that art dealers, like defendant, generally offered one-half of the amount they expected to get for an item upon resale; defendant sold the paintings for $35,000 to an art dealer; the paintings were later sold to an art collector who sold the paintings at auction for $600,000; plaintiff sued defendant for negligent misrepresentation; the jury awarded plaintiff $20,000 in damages; and plaintiff filed a motion for additur of $380,500 based on plaintiff's expert's opinion that the fair market value of the paintings was $405,000, the court did not err in denying plaintiff's motion for additur. Hicks v. Eller, 2012-NMCA-061, 280 P.3d 304, cert. denied, 2012-NMCERT-005. Application to criminal cases. - Coram nobis type of relief under Paragraph B of Rule 1-060 NMRA is not available unless the petitioner demonstrates that relief through habeas corpus proceeding under Rule 5-802 NMRA is unavailable or otherwise inadequate. State v. Barraza, 2011-NMCA-111, 267 P.3d 815. Where defendant entered a plea of no contest to aggravated assault and was placed on probation; while defendant was on probation, defendant filed a petition pursuant to Rule 1-060 NMRA for coram nobis type relief on the ground that defendant's counsel had not advised defendant of the specific immigration consequences of defendant's conviction and the almost certain deportation that would result from the conviction; and defendant failed to demonstrate that defendant was precluded from filing a petition for habeas corpus or that habeas corpus was otherwise inadequate, the district court could not exercise its jurisdiction to review defendant's petition for coram nobis type of relief pursuant to Rule 1-060 NMRA, because such relief could only be granted pursuant to habeas corpus proceedings under Rule 5-802 NMRA while defendant was within the custody or restrictions imposed by defendant's sentence. State v. Barraza, 2011-NMCA-111, 267 P.3d 815. Challenge of conviction while in immigration custody. - The proper mechanism for a defendant to challenge an underlying criminal conviction when in the custody of the United States Immigration and Customs Enforcement Services is to file a Rule 1-060(B)(4) NMRA motion. State v. Favela, 2013-NMCA-102, cert. granted, 2013-NMCERT-010. Where defendant, who was a Mexican national, pleaded guilty to aggravated battery and driving under the influence; after serving defendant's prison service, defendant was taken into custody by the United States Immigration and Customs Enforcement Services; and while defendant was in immigration custody, defendant filed a Rule 1-060 NMRA motion to set aside the guilty plea on the grounds that defendant's counsel failed to advise defendant of the immigration consequences of a guilty plea, defendant properly challenged the underlying criminal conviction by filing a motion for relief from judgment under Rule 1-060 NMRA rather than a motion for writ of habeas corpus under Rule 5-802 NMRA because defendant's immigration custody did not satisfy the "in custody" requirement of habeas corpus. State v. Favela, 2013-NMCA-102, cert. granted, 2013-NMCERT-010. Jurisdiction of appellate court when a defendant challenges judgment that operates as a conviction under federal law. - Where defendant, an undocumented immigrant who pled guilty to drug possession and driving while under the influence of alcohol in exchange for a conditional discharge of his drug charge, was taken into custody by the United States Immigration and Customs Enforcement Services after violating the terms of his probation, and where defendant requested appellate relief under Rule 1-060(B)(4) NMRA on the grounds that his counsel failed to advise him of the specific immigration consequences of his guilty plea, the New Mexico Court of Appeals had jurisdiction because, although a conditional discharge is not a conviction under New Mexico law, it has that effect under federal immigration law when an undocumented immigrant has pled guilty and a judge has ordered some type of punishment, even if a formal adjudication of guilt has been withheld. State v. Gallegos-Delgado, 2017-NMCA-031. Effect of husband's miscalculation of future income on settlement agreement. - Where husband argues that the alimony provision in the settlement agreement should be set aside under Paragraph B(5) of this rule because, in light of the parties' changed circumstances, it is no longer equitable that the provision be given prospective application, husband's miscalculation of his future income is not a basis to set aside the alimony provision under Paragraph B(5) of this rule. Edens v. Edens, 2005-NMCA-033, 137 N.M. 207, 109 P.3d 295, cert. denied, 2005-NMCERT-003. Nonmodifiable lump sum alimony provision in settlement agreement. - Where the marital settlement agreement was not unconscionable because husband and wife mutually agreed on the terms of the agreement and it was husband who suggested the nonmodifiable lump sum alimony provision after consultation with an attorney and an accountant, and enforcement of the voluntary agreement does not amount to involuntary servitude that violates the 13th Amendment to the United States Constitution because husband freely entered into the terms of the agreement, alimony provisions of decree should not be set aside under Paragraph B(6) of this rule. Edens v. Edens, 2005-NMCA-033, 137 N.M. 207, 109 P.3d 295, cert. denied, 2005-NMCERT-003. Scope of paragraph. - In simple English, the language of the "other reason" clause, for all reasons except the five particularly specified, vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice. Foundation Reserve Ins. Co. v. Martin, 1968-NMCA-100, 79 N.M. 737, 449 P.2d 339; Perez v. Perez, 1966-NMSC-010, 75 N.M. 656, 409 P.2d 804; Barker v. Barker, 1980-NMSC-024, 94 N.M. 162, 608 P.2d 138. Power of trial court generally. - The trial court is invested with a reservoir of equitable power to vacate a final order where justice clearly dictates in exceptional circumstances, such as where the court initially lacked jurisdiction. In re Bradfield, 1982-NMCA-047, 97 N.M. 611, 642 P.2d 214. Paragraph B(6) applied liberally. - Like this rule generally, Subdivision (b)(6) (see now Paragraph B(6)) should be liberally applied to situations not covered by the preceding five clauses so that, giving due regard to the sound interest underlying the finality of judgments, the district court nevertheless has power to grant relief from a judgment whenever, under all the surrounding circumstances, such action is appropriate in the furtherance of justice. Foundation Reserve Ins. Co. v. Martin, 1968-NMCA-100, 79 N.M. 737, 449 P.2d 339. Under Subdivision (b)(6) (see now Paragraph B(6)) the district court, within a reasonable time, can grant relief or vacate for any other reason justifying relief from the operation of the judgment, and this is to be applied liberally. Gengler v. Phelps, 1976-NMCA-114, 89 N.M. 793, 558 P.2d 62. Paragraph B(6) limited to where showing of exceptional circumstances exist. - Subdivision (b)(6) (see now Paragraph B(6)) provides a reservoir of equitable power to do justice in a given case, but it is limited to instances where there is a showing of exceptional circumstances. Perez v. Perez, 1966-NMSC-010, 75 N.M. 656, 409 P.2d 804; Wehrle v. Robison, 1979-NMSC-016, 92 N.M. 485, 590 P.2d 633; Marberry Sales, Inc. v. Falls, 1979-NMSC-022, 92 N.M. 578, 592 P.2d 178; Jemez Properties, Inc. v. Lucero, 1979-NMCA-162, 94 N.M. 181, 608 P.2d 157, cert. denied, 94 N.M. 628, 614 P.2d 545 (1980); Kilcrease v. Campbell, 1980-NMSC-100, 94 N.M. 764, 617 P.2d 153; Resolution Trust Corp. v. Ferri, 1995-NMSC-055, 120 N.M. 320, 901 P.2d 738. This rule provides a reservoir of equitable power to do justice in a given case, but it is limited in its application. The rule may be invoked only upon a showing of exceptional circumstances. Battersby v. Bell Aircraft Corp., 1958-NMSC-135, 65 N.M. 114, 332 P.2d 1028. In order to obtain relief under Subdivision (b)(6)(see now Paragraph B(6)), the movant must show exceptional circumstances, other than those advanced under Subdivisions (b)(1) to (b)(5) (see now Paragraphs B(1) to B(5)). Thompson v. Thompson, 1983-NMSC-025, 99 N.M. 473, 660 P.2d 115. Paragraph B(6) cannot serve as an escape hatch when new evidence does not satisfy the requirements for being "newly discovered evidence." It is limited in scope to reasons not addressed in the five preceding clauses. Fowler-Propst v. Dattilo, 1991-NMCA-030, 111 N.M. 573, 807 P.2d 757. Exceptional circumstances must be shown. - To obtain relief under Subdivision (b)(6) (see now Paragraph B(6)), the party must establish the existence of exceptional circumstances. Dyer v. Pacheco, 1982-NMCA-148, 98 N.M. 670, 651 P.2d 1314. The district court may in exceptional circumstances reopen judgment and order a new trial sua sponte. Martinez v. Friede, 2004-NMSC-006, 135 N.M. 171, 86 P.3d 596. Exceptional circumstances shown. - Exceptional circumstances sufficient to permit reopening the judgment under Paragraph B(6) existed, where, at the time a dismissal with prejudice order was entered, plaintiff had already furnished required discovery, although the trial court was unaware of it, and, when dismissal was entered, plaintiff was not represented by counsel. Lopez v. Wal-Mart Stores, Inc., 1989-NMCA-013, 108 N.M. 259, 771 P.2d 192. Exceptional circumstances not shown. - Father was not entitled to relief from a lump-sum child support obligation, which he claimed had been discharged through prepayment on promissory note; under the circumstances of the case, he could not prove discharge of the obligation, newly discovered evidence or the "exceptional circumstances" required to establish "other reason justifying relief" under this section. Rochester v. Rochester, 1998-NMCA-100, 125 N.M. 369, 961 P.2d 794. Paragraph B(6) not applicable to claims of judicial error. - The trial court abused its discretion in setting aside a default judgment for judicial error under Paragraph B(6) after 19 months had passed. Resolution Trust Corp. v. Ferri, 1995-NMSC-055, 120 N.M. 320, 901 P.2d 738. Paragraph B(6) may not be used as substitute for appeal and does not toll the time for appeal. Parks v. Parks, 1978-NMSC-008, 91 N.M. 369, 574 P.2d 588; Hort v. General Elec. Co., 1978 -NMCA-125, 92 N.M. 359, 588 P.2d 560, cert. denied, 92 N.M. 353, 588 P.2d 554 (1979). It may not be used to circumvent time limit set out in Subdivisions (b)(1), (b)(2) and (b)(3) (see now Paragraphs B(1), (2) and (3)) and may be used only for reasons other than the ones therein set out. Parks v. Parks, 1978-NMSC-008, 91 N.M. 369, 574 P.2d 588; Jemez Properties, Inc. v. Lucero, 1979-NMCA-162, 94 N.M. 181, 608 P.2d 157, cert. denied, 94 N.M. 628, 614 P.2d 545 (1980). A party seeking to set aside a judgment cannot rely upon Paragraph B(6) to circumvent the one-year limit in which to advance reasons enumerated in Paragraph B(1), B(2), or B(3). Marinchek v. Paige, 1989-NMSC-019, 108 N.M. 349, 772 P.2d 879. Pendency of another suit, etc., considered exceptional circumstances. - Where the sole reasons given by defendants in their motions to abate the present suit were the pendency of another suit in Bernalillo county involving the same factual and legal questions and plaintiff's status as an indispensable party to that suit, where the court sustained these motions and plaintiff then sought to intervene in that suit but the present defendants had settled their differences and had that suit dismissed with prejudice without giving any notice thereof to plaintiff or its attorney, these were such exceptional circumstances as would have justified the trial court in the exercise of its sound discretion in vacating the order of abatement. If the trial court did not deny plaintiff's motion as an exercise of sound judicial discretion but rather did so upon a mistaken belief as to the legal effect on plaintiff's claim of the settlement and dismissal of the Bernalillo county suit, then the court committed reversible error. Foundation Reserve Ins. Co. v. Martin, 1968-NMCA-100, 79 N.M. 737, 449 P.2d 339. Tampering with evidence constitutes exceptional circumstances. - Tampering with physical evidence in the case and with public records in the county clerk's office went beyond the common fraud contemplated by Subdivision (b)(3) (see now Paragraph B(3)) of this rule, and constituted exceptional circumstances to allow the reopening of judgment more than a year after its entry, under Subdivision (b)(6) (see now Paragraph B(6)) of this rule. Jemez Properties, Inc. v. Lucero, 1979-NMCA-162, 94 N.M. 181, 608 P.2d 157, cert. denied, 94 N.M. 628, 614 P.2d 545 (1980). Arbitration proceedings. - The time limit contained in 44-7-12B NMSA 1978 for filing a motion to vacate an award applies in arbitration proceedings, not the one-year limitation period set forth in Paragraph (B)(6) of this rule. Medina v. Foundation Reserve Ins. Co., 1997 -NMSC-027, 123 N.M. 380, 940 P.2d 1175. Best interests of adopted child can be exceptional circumstance. - Where the best interests of the child demand it, the exceptional circumstance provision of Paragraph B(6) should be used to override the one-year statute of limitations on reopening an adoption decree. Drummond v. Drummond, 1997-NMCA-094, 123 N.M. 727, 945 P.2d 457. Foreclosure of family home resulting from husband's failure to make mortgage payments constituted exceptional circumstances so as to justify relief under paragraph (B)(6) by allowing the court to identify any support obligation within the original divorce decree. Hopkins v. Hopkins, 1989-NMCA-101, 109 N.M. 233, 784 P.2d 420. Attorney negligence. - Attorney neglect absent additional facts demonstrating exceptional circumstances is not sufficient to invoke Paragraph B(6). Resolution Trust Corp. v. Ferri, 1995-NMSC-055, 120 N.M. 320, 901 P.2d 738; Meiboom v. Watson, 2000-NMSC-004, 128 N.M. 536, 994 P.2d 1154. Gross negligence by an attorney may constitute extraordinary circumstances allowing application of Paragraph B(6) when coupled with a showing of client diligence. Resolution Trust Corp. v. Ferri, 1995-NMSC-055, 120 N.M. 320, 901 P.2d 738. In a claim of gross attorney negligence, the defaulting party's diligence is a proper inquiry. - Where defendants appealed the district court's denial of their motion to set aside a default judgment, the district court abused its discretion in denying the motion to set aside the default judgment because a district court's decision to grant or deny a motion to reopen a judgment under 1-060(B)(6) NMRA for gross attorney negligence requires the district court to make findings of fact as to whether defendants were aware of their attorney's gross negligence, whether defendants were complicit in their attorney's intransigence and obstruction of the discovery process, and whether plaintiff would be prejudiced if the default judgment were reopened. Marquez v. Larrabee, 2016-NMCA-087. Redress of improper use of process. - The improper use of process of a court may be redressed by a motion to quash, inquiry into the matter under the supreme court disciplinary rules, a motion to set aside judgment under Subdivision (b)(6) (see now Paragraph B(6)) or a determination of whether such an action amounts to facts giving rise to an action for abuse of process. Under proper circumstances, the matter may also constitute contempt of court. Poorbaugh v. Mullen, 1982-NMCA-141, 99 N.M. 11, 653 P.2d 511. Prior judicial precedent overruled. - Where an appellate opinion which ruled that a law should not be applied retroactively was expressly overruled a year later, wife's motion to set aside decree of final separation and to allow assertion of a claim against husband's military retirement benefits was allowed under Subdivision (b)(6) (see now Paragraph B(6)). Koppenhaver v. Koppenhaver, 1984-NMCA-017, 101 N.M. 105, 678 P.2d 1180. Notice is required only when party has appeared in action; since the defendant did not appear, the plaintiff was entitled to a default judgment without contacting the defendant's counsel. Rummel v. Edgemont Realty Partners, Ltd., 1993-NMCA-085, 116 N.M. 23, 859 P.2d 491. Setting aside default judgment. - When there exist grounds for relief under Paragraph B and a meritorious defense, and when there are no intervening equities, the default judgment should be set aside and the case tried on its merits. Rodriguez v. Conant, 1987-NMSC-040, 105 N.M. 746, 737 P.2d 527. Where defendant's motion pointed out that he was at all times accessible to plaintiff and cross-plaintiff and, in fact, had communicated with them at some time during plaintiff's lawsuit and demonstrated the existence of a meritorious defense, because defendant had demonstrated both a meritorious defense and grounds for relief under Subparagraph B(6), the district court did not abuse its discretion by setting aside the default judgments. Rodriguez v. Conant, 1987-NMSC-040, 105 N.M. 746, 737 P.2d 527. Default judgment reinstated. - Trial court did not abuse its discretion in reinstating default judgment upon defendant's failure to comply with conditions imposed by court in setting aside the default judgment. Kutz v. Independent Publ'g Co., 1984-NMCA-081, 101 N.M. 587, 686 P.2d 277. Motion to set aside divorce decree denied where property division not inequitable. - Where divorce decree was entered after United States Supreme Court decision that military pay was community property but before federal enactment providing that the state law should determine whether military pay was community property, trial court did not abuse its discretion in refusing to grant ex-wife's motion to set aside stipulated divorce decree with respect to military retirement and alimony where she failed to show that prospective application of that portion of decree ordering alimony in lieu of military retirement was inequitable under the circumstances. Harkins v. Harkins, 1984-NMSC-057, 101 N.M. 296, 681 P.2d 722. Reasonable time limits imposed. - The only time limit on a motion seeking relief under this rule is that it be made within a reasonable time. Home Sav. & Loan Ass'n v. Esquire Homes, Inc., 1974-NMSC-088, 87 N.M. 1, 528 P.2d 645; Freedman v. Perea, 1973-NMSC-124, 85 N.M. 745, 517 P.2d 67. The only time limit on a motion seeking relief under this rule is that it be made within a reasonable time, but what constitutes a reasonable time depends on the circumstances of each case. Home Sav. & Loan Ass'n v. Esquire Homes, Inc., 1974-NMSC-088, 87 N.M. 1, 528 P.2d 645. Plaintiffs did not file their motion under Paragraph B(6) within a reasonable time where it was filed several months after the statute of limitations had expired, more than one year after the stipulated dismissal, and approximately three months after plaintiffs stated they learned their case had been voluntarily dismissed. Meiboom v. Watson, 2000-NMSC-004, 128 N.M. 536, 994 P.2d 1154. Where more than year has elapsed between entry of challenged order and Subdivision (b) (see now Paragraph B) motion to vacate, Subdivision (b)(6) (see now Paragraph B(6)) is the only provision under which the judgment may be set aside. Jemez Properties, Inc. v. Lucero, 1979-NMCA-162, 94 N.M. 181, 608 P.2d 157, cert. denied, 94 N.M. 628, 614 P.2d 545 (1980). Delay over 16 months not reasonable. - A delay in excess of 16 months, from the time the original decree was entered until the motion to vacate was filed, was held a delay beyond the time that was reasonable for setting aside the judgment in the case. State ex rel. Property Appraisal Dep't v. Sierra Life Ins. Co., 1977 -NMSC-023, 90 N.M. 268, 562 P.2d 829. Effect of motion to vacate judgment not in its entirety. - Defendant's motion to set aside the judgment not in its entirety but only to the extent that it contains language not included in the original complaint is not a ground for relief under Subdivision (b)(6) (see now Paragraph B(6)), as the court is not asked to grant relief from the "operation" of the judgment. Gurule v. Larson, 1967-NMSC-249, 78 N.M. 496, 433 P.2d 81. Trial court loses jurisdiction when appeal taken. - Although this rule applies to the district courts, the court of appeals correctly entertained this motion as the trial court could not have considered it, having lost jurisdiction by reason of the appeal. Terrel v. Duke City Lumber Co., 1974-NMCA-041, 86 N.M. 405, 524 P.2d 1021, aff'd in part, rev'd in part, 1975-NMSC-041, 88 N.M. 299, 540 P.2d 229. Abuse of discretion reverses lower court's determination. - Whether a judgment will be set aside under Subdivision (b)(6) (see now Paragraph B(6)) is ordinarily a matter within the trial court's discretion, and the trial court's determination will ordinarily not be reversed except for an abuse of discretion. Freedman v. Perea, 1973-NMSC-124, 85 N.M. 745, 517 P.2d 67. Setting aside deficiency judgment. - The trial court did not abuse its discretion by setting aside as unjust a deficiency judgment entered after certain mortgaged properties subject to a default judgment were sold, when six years after judgment, defendant located a letter purporting to be from plaintiff which had ostensibly released her from liability for the mortgages on the basis of which she had refrained from contesting the original foreclosure suit; defendant was permitted to file her answer and proceed to trial. Home Sav. & Loan Ass'n v. Esquire Homes, Inc., 1974-NMSC-088, 87 N.M. 1, 528 P.2d 645. Failure to rule on B(6) motion not automatic denial. - A Paragraph B(6) motion is not automatically deemed denied if not ruled upon within 30 days. Archuleta v. New Mexico State Police, 1989-NMCA-012, 108 N.M. 543, 775 P.2d 745. Juror confusion. - A district court is not precluded from acting under Paragraph B(6) of this rule to set aside a judgment and grant a new trial on the basis of juror confusion. Martinez v. Friede, 2004-NMSC-006, 135 N.M. 171, 86 P.3d 596. Rule 1-051 NMRA presents no barrier to the district court's ability to reopen judgment under Paragraph B of this rule and grant a new trial on the basis of juror confusion, despite petitioner's failure to object to a jury instruction. Martinez v. Friede, 2004-NMSC-006, 135 N.M. 171, 86 P.3d 596. Where in its order filed, the district court clearly granted a new trial on the basis of juror confusion, and since the appellate court has held this to be an appropriate action under Paragraph B(6) of this rule, the district court's failure to cite the rule does not render its order without force. Martinez v. Friede, 2004-NMSC-006, 135 N.M. 171, 86 P.3d 596. Juror bias not found. - Where, following trial, a plaintiff alleged juror bias and prejudice and juror incompetency based on another juror's letter to the judge and affidavit, the trial court erred in granting the plaintiff's Rule 1-060B NMRA motion because there was no competent evidence to support the plaintiff's allegations of bias or prejudice or that the juror in question had responded untruthfully to questions on voir dire; Rule 11-606 NMRA specifically precludes impeachment of a verdict by the testimony or affidavit of a juror concerning statements made by a juror during jury deliberations. Rios v. Danuser Mach. Co., 1990 -NMCA-031, 110 N.M. 87, 792 P.2d 419. Motion held appropriate and timely. - Employer's Paragraph B motion for relief from judgment on ground that circumstances warranted it was appropriate and timely where the employer sought set off for benefits paid to injured employee, employer produced evidence of payment to employee, and employer's motion was filed two months after judgment. Washington v. Atchison, T. & S.F. Ry., 1992 -NMCA-066, 114 N.M. 56, 834 P.2d 433. Divorce decree support order unmodifiable unless original calculation errors unforeseeable. - When under Paragraph B(5) the sole ground urged for the modification of a monthly payment award under a divorce decree is that the original award was based on an erroneous projection of the value of retirement benefits, such a modification is improper unless the reason for the error in the projection is a circumstance that the party seeking relief had no opportunity to foresee or control. This limitation on the prospective modification of a judgment does not affect cases in which the court has retained jurisdiction under the decree over a judgment ordering periodic payments, so that the amount of the payments can be adjusted as circumstances change. Barnes v. Shoemaker, 1993-NMCA-160, 117 N.M. 59, 868 P.2d 1284. G. VACATING JUDGMENTS. When the court considers a motion for relief from judgment and enters a new order and judgment, the court has vacated the earlier order. Ullrich v. Blanchard, 2007-NMCA-145, 142 N.M. 835, 171 P.3d 774, cert. granted, 2007-NMCERT-011. Two issues arise on every application to open or vacate a judgment: the existence of grounds for opening or vacating the judgment and the existence of a meritorious defense or cause of action. Since there is no universally accepted standard as to what satisfies the requirement that a party show a meritorious defense, the matter is best left to the discretion of the trial judge, as is the decision whether a good excuse has been shown. Mathieson v. Hubler, 1978-NMCA-119, 92 N.M. 381, 588 P.2d 1056 (Ct. App.), cert. denied, 92 N.M. 353, 588 P.2d 554. In order for a court to set aside a default judgment under Subdivision (b) (see now Paragraph B), the moving party must show a meritorious defense or cause of action and the existence of grounds for opening or vacating the judgment. Marberry Sales, Inc. v. Falls, 1979-NMSC-022, 92 N.M. 578, 592 P.2d 178. Motion to vacate judgment need not be verified. Sheppard v. Sandfer, 1940-NMSC-031, 44 N.M. 357, 102 P.2d 668 (decided under former law). Court's power over judgments made during term, unlimited. - The power of the court over its judgments during the entire term at which they are rendered is unlimited, and the court may, during such term and without notice to the parties vacate, modify or set aside its judgments. Henderson v. Dreyfus, 1920-NMSC-054, 26 N.M. 262, 191 P. 455 (decided under former law). Jurisdiction lapses for vacation of void judgment, after one year. - A district court is without jurisdiction to set aside or vacate a voidable but not void judgment rendered by it after one year from the rendition of the judgment has elapsed. Weaver v. Weaver, 1911-NMSC-013, 16 N.M. 98, 113 P. 599 (decided under former law). Trial court reversed for abuse of discretion. - Whether a judgment will be set aside under this rule is ordinarily a matter within the trial court's discretion. The trial court's determination will ordinarily not be reversed except for an abuse of discretion. Home Sav. & Loan Ass'n v. Esquire Homes, Inc., 1974-NMSC-088, 87 N.M. 1, 528 P.2d 645. Action on motion to vacate judgment is discretionary and reviewable only for abuse. Grant v. Booker, 1926-NMSC-045, 31 N.M. 639, 249 P. 1013 (decided under former law). A motion to vacate or set aside a judgment is addressed to the sound legal discretion of the trial court on the particular facts of the case, and the determination of the trial court will not be disturbed on appeal unless an abuse of such discretion is shown. Stafford v. Clouthier, 1916-NMSC-049, 22 N.M. 157, 159 P. 524 (decided under former law). District court abused its discretion in reinstating claims that were dismissed with prejudice. - Where personal representative of decedent's estate (probate PR) filed a 2012 lawsuit against medical practice and decedent's doctor claiming negligence, medical malpractice, and wrongful death, and where in 2013, the probate PR entered into a settlement agreement with decedent's doctor, resulting in a district court order dismissing all claims against the doctor with prejudice, and where, in 2015, upon plaintiff's motion, the district court entered an order reinstating the claims against the doctor, claiming that the probate PR, by failing to be appointed as the personal representative for purposes of the Wrongful Death Act, lacked authority to file and settle the claims against the doctor, the district court abused its discretion in granting plaintiff's motion to set aside the settlement and reinstate claims against the doctor under Rule 1-060(B)(6) NMRA, because the law in effect at the time did not require that a court-appointed probate PR obtain a separate court appointment as a personal representative for wrongful death purposes, and the district court based its reinstatement of the claims on an erroneous interpretation of the law. Oakey v. Tyson, 2017-NMCA-078, cert. granted. Notice of defect, prerequisite. - A judgment will not be vacated so as to affect a purchaser of the property without notice of a defect. Archuleta v. Landers, 1960-NMSC-117, 67 N.M. 422, 356 P.2d 443. Effect of subsequent events on setting aside judgment. - When attorney who represented claimant in workmen's compensation case was selected and paid for by the employer's insurance carrier and this attorney was found by the trial court to be experienced and competent, with the record disclosing no evidence of misconduct by anyone, the judgment will not be set aside for fraud, misconduct or mutual mistake, even if, in the light of subsequent events, an agreement of settlement of a workmen's compensation award proves to have been unwise or unfortunate. Herrera v. C & R Paving Co., 1963-NMSC-203, 73 N.M. 237, 387 P.2d 339. Court may vacate final judgments under 39-1-1 NMSA 1978 as well. - Where final judgment was vacated four days after its entry because of mistakes, inadvertence, excusable neglect, surprise and for other named reasons, whether correctly grounded on this provision or not, the court had discretion of doing so under this rule under the circumstances of the case, and in any event could so so under Section 39-1-1 NMSA 1978 giving district courts jurisdiction over judgments and decrees for 30 days after entry thereof. Hoover v. City of Albuquerque, 1952-NMSC-070, 56 N.M. 525, 245 P.2d 1038, overruled on other grounds, Albuquerque Prods. Credit Ass'n v. Martinez, 1978-NMSC-003, 91 N.M. 317, 573 P.2d 672. Statutes limiting time for vacating final judgments inapplicable in extrinsic fraud or collusion cases. Kerr v. Southwest Fluorite Co., 1930-NMSC-104, 35 N.M. 232, 294 P. 324. In workmen's compensation case, court abused its discretion in vacating a judgment for the employee on grounds of surprise, where after hearing the doctor testify, the employer and insurer rested their case without challenging his evidence, no continuance or postponement was sought as a result of his evidence, he was not interrogated as to his report to the company nor as to the statements made to the employer and insurer's attorney; and their motion for a new trial was based on the sufficiency of the evidence to support the findings. Thus, the employer and insurer were given every opportunity to fully develop their defense, and in accordance with their legal duty are presumed to have exhausted their proof. Battersby v. Bell Aircraft Corp., 1958-NMSC-135, 65 N.M. 114, 332 P.2d 1028. Failure to include description, etc., in appraisal does not warrant vacation. - Although commissioners appointed to appraise land in condemnation proceedings failed to include description of property involved, date of view and other details, such failure was not an irregularity which would allow vacation of judgment awarding owner of land the amount of damages which had been assessed by said commissioners. Board of Cnty. Comm'rs v. Wasson, 1933-NMSC-076, 37 N.M. 503, 24 P.2d 1098 (decided under former law). Decrees of foreclosure of mechanic's lien. - Where a contractor secures personal judgment against the owner of improved real property for labor and materials furnished and a decree of foreclosure of mechanic's lien, agreed to as to form by attorneys for the parties, there is no apparent irregularity warranting a vacation of the judgment. Mozley v. Potteiger, 1933-NMSC-006, 37 N.M. 91, 18 P.2d 1021 (decided under former law). Jurisdiction exceeded when lack of compliance with Paragraph B. - A court acts in excess of its jurisdiction in vacating a default judgment without a showing of compliance with Subdivision (b) (see now Paragraph B). Starnes v. Starnes, 1963-NMSC-081, 72 N.M. 142, 381 P.2d 423, overruled on other grounds, Albuquerque Prods. Credit Ass'n v. Martinez, 1978-NMSC-003, 91 N.M. 317, 573 P.2d 672. Default judgment entered without required notice. - Default judgments entered without the required three-day notice under Paragraph B of Rule 1-055 NMRA must be set aside. State ex rel. N.M. State Police Dep't v. One 1984 Pontiac 6000, 1990-NMCA-085, 111 N.M. 85, 801 P.2d 667, aff'd, 1991-NMSC-035, 111 N.M. 746, 809 P.2d 1274. Motion to vacate default judgment rests upon court's discretion. - A motion to set aside a default or a judgment by default is addressed to the discretion of the court, and an adequate basis for the motion must be shown. In exercising this discretion the court will be guided by the fact that default judgments are not favored in the law. The court should not reopen a default judgment merely because the party in default requests it, but should require the party to show both that there was good reason for the default and that he has a meritorious defense to the action. Wakely v. Tyler, 1967-NMSC-145, 78 N.M. 168, 429 P.2d 366. The motion to set aside or vacate a default judgment is addressed to the sound discretion of the trial court. Gengler v. Phelps, 1976-NMCA-114, 89 N.M. 793, 558 P.2d 62. It is settled that the action of the trial court, in setting aside a default judgment, is discretionary under this rule. Weisberg v. Garcia, 1965-NMSC-085, 75 N.M. 367, 404 P.2d 565. Ruling not reversed save for abuse of discretion. - A motion to set aside a default judgment is addressed to the sound discretion of the trial judge, whose ruling will not be reversed except for abuse of that discretion. Springer Corp. v. Herrera, 1973-NMSC-057, 85 N.M. 201, 510 P.2d 1072, overruled on other grounds, Sunwest Bank v. Roderiguez, 1989-NMSC-011, 108 N.M. 211, 770 P.2d 533; Gilmore v. Griffith, 1963-NMSC-159, 73 N.M. 15, 385 P.2d 70; Wooley v. Wicker, 1965-NMSC-065, 75 N.M. 241, 403 P.2d 685; Conejos Cnty. Lumber Co. v. Citizens Sav. & Loan Ass'n, 1969-NMSC-122, 80 N.M. 612, 459 P.2d 138. The action of the trial court in setting aside a default judgment under this rule is discretionary. Where good cause is shown, the order of the district court in setting aside a default judgment will only be disturbed for an abuse of discretion. Gilmore v. Griffith, 1963-NMSC-159, 73 N.M. 15, 385 P.2d 70. Setting aside judgment under Subdivision (b) (see now Paragraph B) is discretionary with trial court; an appellate court will not interfere with the action of a trial court in vacating a judgment except upon a showing of abuse of discretion. Phelps Dodge Corp. v. Guerra, 1978-NMSC-053, 92 N.M. 47, 582 P.2d 819; McKee v. United Salt Corp., 1980-NMCA-175, 96 N.M. 382, 630 P.2d 1237, aff'd in part, rev'd on other grounds, 1981-NMSC-052, 96 N.M. 65, 628 P.2d 310; Sun Country Sav. Bank v. McDowell, 1989-NMSC-043, 108 N.M. 528, 775 P.2d 730. Abuse of discretion means judge acted arbitrarily or unreasonably. - The vacating of a default judgment for good cause is a matter within the sound discretion of the trial court. The trial court's ruling will not be reversed unless an abuse of discretion is present which is defined as when the judge has acted arbitrarily or unreasonably under the particular circumstances. Richins v. Mayfield, 1973-NMSC-099, 85 N.M. 578, 514 P.2d 854; United Salt Corp. v. McKee, 1981-NMSC-052, 96 N.M. 65, 628 P.2d 310. Motion to set aside a default judgment was a matter addressed to the sound discretion of the trial judge, whose ruling would not be reversed except for abuse of that discretion. Discretion, in this sense, was abused only when the trial judge has acted arbitrarily or unreasonably. Conejos Cnty. Lumber Co. v. Citizens Sav. & Loan Ass'n, 1969-NMSC-122, 80 N.M. 612, 459 P.2d 138. Default judgments not favored. - In exercising discretion to set aside a default judgment, courts should bear in mind that default judgments are not favored and that, generally, causes should be tried upon their merits. Springer Corp. v. Herrera, 1973-NMSC-057, 85 N.M. 201, 510 P.2d 1072; Marberry Sales, Inc. v. Falls, 1979-NMSC-022, 92 N.M. 578, 592 P.2d 178. Motion to set aside default judgment on grounds of "mistake, inadvertence, surprise or excusable neglect," is addressed to the sound discretion of the trial judge. In the exercise of such discretion, the trial court should bear in mind that default judgments are not favored and that, generally, causes should be tried on their merits. Wooley v. Wicker, 1965-NMSC-065, 75 N.M. 241, 403 P.2d 685. In exercising the discretion whether to set aside a default judgment, courts should bear in mind that default judgments are not favored and that, generally, causes should be tried upon their merits, but should also recognize that the rules of procedure are intended to provide an orderly procedure and to expedite the disposal of causes. Rogers v. Lyle Adjustment Co., 1962-NMSC-089, 70 N.M. 209, 372 P.2d 797. Basis for setting aside default judgment. - If a court finds (1) mistake, inadvertence, surprise or excusable neglect, and (2) a meritorious defense, and there are no intervening equities in favor of the other party, a court should set aside a default judgment. New Mexico Educators Fed. Credit Union v. Woods, 1984-NMSC-101, 102 N.M. 16, 690 P.2d 1010. To establish the existence of a meritorious defense sufficient to warrant setting aside a default judgment the movant must proffer some statement of underlying facts to support the allegation. Sunwest Bank v. Roderiguez, 1989-NMSC-011, 108 N.M. 211, 770 P.2d 533. Policy of law to decide cases on merits. - It is the policy of the law to prefer that cases be decided on the merits, and this policy looks with disfavor upon default judgments and the litigant who attempts to take advantage of the mistake, surprise, inadvertence or neglect of an adversary. Gengler v. Phelps, 1976-NMCA-114, 89 N.M. 793, 558 P.2d 62. Doubts resolved in favor of motion to vacate. - Where timely relief is sought from a default judgment and the movant has a meritorious defense, doubt, if any, should be resolved in favor of the motion to set aside the judgment so that cases may be decided on their merits. Wakely v. Tyler, 1967-NMSC-145, 78 N.M. 168, 429 P.2d 366. Time limit of Section 39-1-1 NMSA 1978 inapplicable to default judgment. - Provision in Section 39-1-1 NMSA 1978 that failure by the court to rule on a motion within 30 days shall be deemed a denial thereof had no application as to the timeliness of an appeal from an order denying motion to set aside default judgment on grounds of mistake, inadvertence or excusable neglect. Such appeal is governed by this rule, which provides that motions thereunder may be made within a reasonable time, with a one-year limitation as to some of the grounds therein specified. Wooley v. Wicker, 1965-NMSC-065, 75 N.M. 241, 403 P.2d 685. Court was not precluded from ruling on a motion to vacate a default judgment after 30 days had passed since filing of the motion because Section 39-1-1 NMSA 1978 stipulating that court's failure to rule within 30 days constituted a denial was held to be inapplicable. McLachlan v. Hill, 1967-NMSC-041, 77 N.M. 473, 423 P.2d 992. Motion to vacate properly denied where defendant failed to appear. - Trial court did not abuse its discretion in denying motion to vacate a default judgment where defendant inexcusably failed to attend the hearing set for considering the motion for default, of which he had been notified, even though defendant had relied on previous local custom that an entry of appearance followed by late pleading would protect against the entry of default judgment. Rogers v. Lyle Adjustment Co., 1962-NMSC-089, 70 N.M. 209, 372 P.2d 797. Negligent failure to appear does not necessarily bar the right to have a default set aside upon application filed timely. Dyne v. McCullough, 1932-NMSC-019, 36 N.M. 122, 9 P.2d 385 (decided under former law). Court did not err in vacating default judgment under this rule, where the motion for default judgment filed by plaintiff was not consistent with the return of service and the affidavit of the deputy sheriff that service of process was made on a member, not an officer or as otherwise provided in Rule 4(o) (see now Rule 1-004 NMRA), since the court could have found the judgment void although it did not make this ruling explicit. Gengler v. Phelps, 1976-NMCA-114, 89 N.M. 793, 558 P.2d 62. When refusal to vacate not interfered with by supreme court. - Where on the record, supreme court cannot say that the trial court acted arbitrarily or unreasonably or was unaware of the general policy that disputes should be tried on their merits rather than settled by default judgment, supreme court found no basis for interfering with the trial court's discretion in refusing to set aside the default judgment. Guthrie v. United States Lime & Mining Corp., 1970-NMSC-154, 82 N.M. 183, 477 P.2d 817. When res judicata applies to default decree. - A default decree in a suit to quiet title, in which the plaintiff's right and title were based upon a tax deed which was invalid because the taxes for which it was issued had been paid, cannot in the absence of fraud be set aside by a subsequent suit for that purpose, the doctrine of res judicata being applicable. Bowers v. Brazell, 1922-NMSC-014, 27 N.M. 685, 205 P. 715 (decided under former law). Law reviews. - For article, "Attachment in New Mexico - Part II," see 2 Nat. Resources J. 75 (1962). For note, "Post-Conviction Relief After Release From Custody: A Federal Message and a New Mexico Remedy," see 9 Nat. Resources J. 85 (1969). For comment, "Statutory Notice in Zoning Actions: Nesbit v. City of Albuquerque," see 10 N.M.L. Rev. 177 (1979-80). For note, "Family Law - A Limitation on Grandparental Rights in New Mexico: Christian Placement Service v. Gordon," see 17 N.M.L. Rev. 207 (1987). For note, "Professional Responsibility - Attorneys Are Not Liable to Their Clients' Adversaries: Garcia v. Rodey, Dickason, Sloan, Akin & Robb, P.A.," see 20 N.M.L. Rev. 737 (1990). Am. Jur. 2d, A.L.R. and C.J.S. references. - 3B Am. Jur. 2d Aliens and Citizens §§1693, 1694; 7 Am. Jur. 2d Audita Querela §2; 46 Am. Jur. 2d Judgments §127 et seq.; 58 Am. Jur. 2d New Trial §8. Clerical errors, correction of, 14 A.L.R.2d 224. Notice of application or intention to correct error in judgment entry, necessity of, 14 A.L.R.2d 224. Power of court, in absence of express authority, to grant relief from judgment by default in divorce action, 22 A.L.R.2d 1312. Lack of certainty, judgment ambiguous or silent as to amount of recovery as defective for, 55 A.L.R.2d 723. Formal requirements of judgment or order as regards appealability, 73 A.L.R.2d 250. Vacating or setting aside divorce decree after remarriage of party, 17 A.L.R.4th 1153. Incompetence of counsel as ground for relief from state court civil judgment, 64 A.L.R.4th 323. Filing of notice of appeal as affecting jurisdiction of state trial court to consider motion to vacate judgment, 5 A.L.R.5th 422. Amendment of record of judgment in state civil case to correct judicial errors and omissions, 50 A.L.R.5th 653. Vacating or opening judgment by confession on ground of fraud, illegality, or mistake, 91 A.L.R.5th 485. Relief from judicial error by motion under F.R.C.P. Rule 60(b)(1), 1 A.L.R. Fed. 771. Propriety of conditions imposed in granting relief from judgment under Rule of Civil Procedure 60(b), 3 A.L.R. Fed. 956. Independent actions to obtain relief from judgment, order or proceeding under Rule 60(b) of the Federal Rules of Civil Procedure, 53 A.L.R. Fed. 558. Application of civil or criminal procedural rules in federal court proceeding on motion in nature of writ of error coram nobis, 53 A.L.R. Fed. 762. Lack of jurisdiction, or jurisdictional error, as rendering federal district court judgment "void" for purposes of relief under Rule 60(b)(4) of Federal Rules of Civil Procedure, 59 A.L.R. Fed. 831. Effect of filing of notice of appeal on motion to vacate judgment under Rule 60(b) of Federal Rules of Civil Procedure, 62 A.L.R. Fed. 165. Who has burden of proof in proceeding under Rule 60(b)(4) of Federal Rules of Civil Procedure to have default judgment set aside on ground that it is void for lack of jurisdiction, 102 A.L.R. Fed. 811. Construction and application of Rule 60(b)(5) of Federal Rules of Civil Procedure, authorizing relief from final judgment where its prospective application is inequitable, 117 A.L.R. Fed. 419. 49 C.J.S. Judgments §§ 275 to 325, 327 to 359.