City of Hobbs v. Chesport, Ltd. ( 1966 )

MOISE, Justice

(dissenting).

I feel compelled to express my disagreement with the disposition by the majority of appellant’s points II and III for the asserted reason of failure to comply with Supreme Court Rule 12(1) (§ 21-2-1(12) (1), N.M.S.A.1953) which requires that when less than a complete record is called for in the praecipe “a concise statement of the points” on which appellant intends to rely is required, “[t]he review shall be limited to the points as stated.” and that the two points in question are not set forth.

My disagreement arises because the matters omitted in the praecipe had no possible effect on this appeal, being generally pertinent to other parties not involved in this appeal, no counterpraecipe was filed to include anything omitted, and appellee has not argued or suggested that the omitted material in any way prejudiced it on this appeal. As I read the points set forth by appellant, the arguments not being considered are within the general statement of point II. Again, appellee does not claim otherwise or that it has been in any manner prejudiced.

Under the circumstances, it seems to me that to refuse to consider the point is to exalt form over substance. We have precedent in cases where deviation from the rules was even more serious than here. See Chronister v. State Farm Mutual Automobile Ins. Co., 67 N.M. 170, 353 P.2d 1059; State v. Gonzales, 43 N.M. 498, 95 P.2d 673; State v. Apodaca, 42 N.M. 544, 82 P.2d 641. Under the circumstances here present the rule in Robinson v. Black, 73 N.M. 116, 385 P.2d 971, should not be applied.

For the reasons stated, I dissent.