N.M. R. Civ. P. Dist. Ct. 1-062
N.M. R. Civ. P. Dist. Ct. 1-062
ANNOTATIONS The 2008 amendment, approved by Supreme Court Order No. 08-8300-32, effective November 17, 2008, in Paragraph B, changed the reference from Paragraph B to Paragraph D of Rule 1-052 NMRA and in Paragraph H, changed the reference from Paragraph C to Paragraph B of Rule 1-054 NMRA. The 1996 amendment, effective January 1, 1996, made stylistic changes in Paragraphs A and C, substituted the second sentence of Paragraph D for "The bond may be given at any time within thirty (30) days after taking the appeal, except that the district court for good cause shown may grant the appellant not to exceed thirty (30) days' additional time within which to file such bond", and made a gender neutral change in Paragraph F. I. GENERAL CONSIDERATION. Cross references. - For execution on judgment, see Section 39-4-1 NMSA 1978. For supersedeas and stay, see Rule 12-207 NMRA. For writs of error, see Rule 12-503 NMRA. Stay generally considered prospective. - Under the plain language of Section 39-3-23 NMSA 1978 and this rule, a stay is generally prospective rather than retroactive, unless otherwise specified. City of Sunland Park v. New Mexico Pub. Reg. Comm'n, 2004-NMCA-024, 135 N.M 143, 85 P.3d 267, cert. denied, 2004-NMCERT-002. A finding that a stay is generally not retroactive is consistent with the prevailing common law. City of Sunland Park v. New Mexico Pub. Reg. Comm'n, 2004-NMCA-024, 135 N.M 143, 85 P.3d 267, cert. denied, 2004-NMCERT-002. A finding that a stay is generally not retroactive is consistent with several other jurisdictions that generally decline to give retroactive effect to a stay; the jurisdictions that give retroactive effect to a stay have done so through legislative enactment. New Mexico law appears to give prospective effect to stays unless otherwise provided. City of Sunland Park v. New Mexico Pub. Reg. Comm'n, 2004-NMCA-024, 135 N.M 143, 85 P.3d 267, cert. denied, 2004-NMCERT-002. Action during pendency of appeal. - The district court may act on matters of supersedeas and stay during the pendency of an appeal. In re Estate of Gardner, 1991-NMCA-039, 112 N.M. 536, 817 P.2d 729. A bond or security is not mandatory when an application for a stay of execution is made and there has been no notice of appeal or motion to vacate. Trial court has inherent power under this rule to stay execution of a judgment temporarily in order to prevent injustice. Segal v. Goodman, 1993-NMSC-018, 115 N.M. 349, 851 P.2d 471. Am. Jur. 2d, A.L.R. and C.J.S. references. - 4 Am. Jur. 2d Appellate Review §146 et seq.; 30 Am. Jur. 2d Executions §57 et seq.; 42 Am. Jur. 2d Injunctions §348. Prohibition as proper remedy to prevent enforcement of judgment which has been reversed or modified on appeal, or from which an appeal, with supersedeas or stay, is pending, 70 A.L.R. 105. Right to have enforcement of judgment for costs enjoined or stayed pending final determination of case, 78 A.L.R. 359. Right to stay without bond or other security pending appeal from judgment or order against executor, administrator, guardian, trustee, or other fiduciary who represents interests of other persons, 119 A.L.R. 931. Motion for new trial as suspension or stay of execution or judgment, 121 A.L.R. 686. Condition of bond on appeal not in terms covering payment of money judgment, as having that effect by implication or construction, 124 A.L.R. 501. Another state or country, stay of civil proceedings pending determination of action in, 19 A.L.R.2d 301. Necessity that person acting in fiduciary capacity give bond to maintain appellate review proceedings, 41 A.L.R.2d 1324. Federal court in same state, stay of civil proceedings pending determination of action in, 56 A.L.R.2d 335. Arbitration disqualified by court or stay of arbitration proceedings prior to award, on ground of interest, bias, prejudice, collusion, or fraud of arbitrators, 65 A.L.R.2d 755. Reviewability, on appeal from final judgment, of interlocutory order, as affected by fact that order was separately appealable, 79 A.L.R.2d 1352. Power of court, in absence of statute, to require corporate surety on fiduciary bond in probate proceeding, 82 A.L.R.2d 926. Mandamus, stay or supersedeas on appellate review in, 88 A.L.R.2d 420. Effect of supersedeas or stay on antecedent levy, 90 A.L.R.2d 483. Appealability of order staying, or refusing to stay, action because of pendency of another action, 18 A.L.R.3d 400. 4 C.J.S. Appeal and Error §§335, 409; 33 C.J.S. Execution §§ 152 to 193; 49 C.J.S. Judgments §§ 693 to 696. II. STAY UPON APPEAL. Time period to seek supersedeas bond. - The time period specified in Paragraph D of Rule 1-062 NMRA in which an appellant may seek a supersedeas bond prevails over the time period specified in Subsection A of Section 39-3-22 NMSA 1978. Jones v. Harris News, Inc., 2010-NMCA-088, 148 N.M. 612, 241 P.3d 613. Amount of supersedeas bond. - Because Rule 1-062(D) NMRA and Section 39-3-22 NMSA 1978 are not in conflict, bond was appropriately set according to the statute. Rule 1-062(D) provides for factors that must be considered by the court in determining the amount of a bond that will protect a judgment holder who must delay execution of the judgment pending appeal. Section 39-3-22 expands upon the purpose of Rule 1-062(D) by providing an alternative mechanism for ensuring that the holder of a judgment is adequately protected from any damage that may result from a stay of the judgment pending appeal. Grassie v. Roswell Hosp. Corp., 2008 -NMCA-076, 144 N.M. 241, 185 P.3d 1091. Time limitations must be complied with. - Although a district court has the inherent power to stay execution of a judgment rendered, the party must show the existence of exceptional, equitable grounds justifying the granting of a stay when the statute or rule does not otherwise provide for such relief. A party may not, however, disregard the time limitations of Section 39-3-22A NMSA 1978 and Paragraph D and then post a supersedeas bond or obtain a stay of execution. Long v. Continental Divide Elec. Coop., 1994 -NMCA-044, 117 N.M. 543, 873 P.2d 289. Where decision appealed from is for recovery other than fixed amount of money, and no damages have been adjudged against appellant, it is improper, upon affirmance, for the mandate to direct entry of judgment against sureties on the supersedeas bond. Perez v. Gil's Estate, 1925-NMSC-053, 31 N.M. 105, 240 P. 999 (decided under former law). Judgment being superseded not being money judgment, it was "inappropriate" upon affirmance to order judgment against the sureties on the bond. Burroughs v. United States Fid. & Guar. Co., 1964-NMSC-244, 74 N.M. 618, 397 P.2d 10 (decided under Rule 9(1) of the former "Supreme Court Rules"), overruled on other grounds by Quintana v. Knowles, 1992-NMSC-016, 113 N.M. 382, 827 P.2d 97. Failure to file bond not prejudice to appellee. - Fact that no supersedeas bond was filed by appellant was not showing of prejudice to an appellee under former law sufficient to dismiss appeal. Young v. Kidder, 1930-NMSC-048, 35 N.M. 20, 289 P. 69. When remaining appellants unable to join in bond. - Where appeal was taken by all parties against whom joint and several judgment was rendered, and only one appellant filed cost or supersedeas bond, remaining appellants would not be permitted to join in such cost or supersedeas bond or file new bond after time limited by statute for giving of such bonds and appeal as to defaulting appellants would, on motion, be dismissed. Rogers v. Herbst, 1919-NMSC-032, 25 N.M. 408, 183 P. 749 (decided under former law). Fixing double amount of judgment. - Judgment in a mortgage foreclosure action for a total of $29,751.36, with interest from a certain date, and for costs, with a further provision for the advertisement and sale by a special master, a report of the sale, the deposit of the proceeds in court and entry of judgment for any deficiency was a plain money judgment to which provision for fixing supersedeas at double amount of the judgment applied. Samples v. Robinson, 1954-NMSC-091, 58 N.M. 701, 275 P.2d 185 (decided under former law). Modification of judgment not discharge sureties. - The fact that a judgment is modified, though affirmed in principle, does not discharge the sureties on the supersedeas bond. Benderach v. Grujicich, 1924-NMSC-082, 30 N.M. 331, 233 P. 520 (decided under former law). The inability to post a supersedeas bond may not operate to deny the right to a stay of a forfeiture judgment under the Controlled Substances Act. Mitchell v. City of Farmington Police Dep't, 1991-NMSC-035, 111 N.M. 746, 809 P.2d 1274. Suit for damages on supersedeas bond is permitted and this right is cumulative. Burroughs v. United States Fid. & Guar. Co., 1964-NMSC-244, 74 N.M. 618, 397 P.2d 10 (decided under Rule 9(1) of the former "Supreme Court Rules"), overruled on other grounds by Quintana v. Knowles, 1992-NMSC-016, 113 N.M. 382, 827 P.2d 97. Controlling consideration in determining liability turns on form of bond undertaking when considered in the light of the applicable statutes and rules. Burroughs v. United States Fid. & Guar. Co., 1964-NMSC-244, 74 N.M. 618, 397 P.2d 10 (decided under Rule 9(1) of the former "Supreme Court Rules"), overruled on other grounds by Quintana v. Knowles, 1992-NMSC-016, 113 N.M. 382, 827 P.2d 97. Effect of declaratory judgment not superseded or stayed. - The trial court could base its summary judgment on the declaratory judgment in an independent proceeding, thus giving effect to a decision that was pending on appeal, because there was no showing that the declaratory judgment had been superseded or stayed. The judgment was in effect and could be enforced. Chavez v. Mountainair Sch. Bd., 1969 -NMCA-060, 80 N.M. 450, 457 P.2d 382. No recovery had upon supersedeas bond given for declaratory judgment where it is not a money judgment. Savage v. Howell, 1940-NMSC-078, 45 N.M. 527, 118 P.2d 1113 (decided under former law). Rents covered, pending appeal, by bond. - A supersedeas bond covering damages and costs, if the parties failed to make good their plea, covered rents and profits, pending appeal, on real estate decreed to belong to plaintiff. Hart v. Employers' Liab. Assurance Corp., 1933-NMSC-101, 38 N.M. 83, 28 P.2d 517 (decided under former law). Filing appeal by state or its political subdivision triggers the automatic stay provisions of Section 39-3-23 NMSA 1978 and Paragraph E of this rule. City of Sunland Park v. New Mexico Pub. Reg. Comm'n, 2004-NMCA-024, 135 N.M. 143, 85 P.3d 267, cert. denied, 2004-NMCERT-002. Appeal by highway department operates as stay of employment reinstatement order. State ex rel. N.M. State Hwy. Dep't v. Silva, 1982-NMCA-121, 98 N.M. 549, 650 P.2d 833. Defendant may not rely on separate judgment stayed pending appeal. - Defendant charged with violations of local sign ordinance could not rely on judgment pending appeal in a separate case which held the ordinance unconstitutional since city's appeal of judgment automatically stayed court's decision; hence, his sign that did not comply with ordinance was not lawfully erected. City of Albuquerque v. Jackson, 1984-NMCA-062, 101 N.M. 457, 684 P.2d 543.