Weaver v. Weaver , 15 N.M. 333 ( 1910 )

OPINION OF THE COURT.

POPE, J.

[After making the foregoing statement of facts:] It is the law of this Territory that appeals lie only from final judgments. Indeed, the organic act prohibits entertaining appeals from any other class of decisions. Jung v. Myer, 11 N. M. 378; De Harrison v. Perea, 11 N. M. 505; Cutler v. Hinman, 14 N. M. 62.

Upon this basis appellee contends that the appeal should be dismissed because the order vacating the original decree was discretionary and was not a final judgment. The appellant does not contest the proposition that only final judgments are appealable, but contends that the order complained of was for purposes of .appeal, a final judgment for the reason that the court below was without jurisdiction to make it. To support this contention Phillips v. Negley, 117 U. S. 665, is cited. It was held in that case that an order vacating a judgment rendered at a preceding term was appealable and this upon the ground that under the facts of that case the judgment had passed beyond the control of the court. We agree with the appellant, following the case just cited, that if the court below exceeded its power in sustaining a motion to vacate, such decision is appealable. But how are we to determine whether the court did exceed its power save upon an examination of the grounds upon which it proceeded? And how are we to examine those grounds if we dismiss the appeal? The mere fact that the original decree was vacated at a term subsequent to the term of its entry does not of itself 'establish that the court acted without jurisdiction. Circumstances are conceivable under which such action even at a subsequent term would be within the power of the court. We deem it anticipating the present case to discuss what might constitute such circumstances. It is sufficient to say that they may exist, and to determine that they do not exist so as to dismiss this appeal we would have to examine the grounds of the motion to vacate. In other words, in order to determine whether we had jurisdiction to decide the case, we would in effect have to consider it and decide it.

We deem this situation within the reasoning of Michigan Insurance Company v. Whittemore, 12 Mich. 310, where, in overruling a motion to dismiss the appeal, it is said: “But it is stated that the granting of the motion was discretionarjr in the court below. Conceding it to be so, how is this court to determine that question without looking into the nature and merits of the motion on which the order appealed from was made, and how can it do this on a motion to dismiss the appeal without, inquiring into the merits of the' appeal itself ? There may be no ground for appeal, but that does not go to the right to appeal.”

So in Phillips v. Negley, supra, it was said:

“The question of our jurisdiction is necessarily included in the question of the validity of the proceeding itself.”

Following the practice in the cases just cited we conceive it to be proper in cases such as this to postpone a 'motion to dismiss to the hearing on the merits, and in this ease it is so ordered.

Mechem, Justice, who was absent, did not participate in this decision.