Drink, Inc. v. Babcock ( 1966 )

OPINION ON MOTION TO INTERVENE AND FOR REHEARING

PER CURIAM:

The motion by persons not parties to the action below to' intervene or be made parties to the action in the Supreme Court is denied. Supreme Court Rule 8 only authorizes the Supreme Court to add, as parties in cases pending in this court, those who were parties below but who were not joined as parties on appeal and to substitute upon suggestion of death for a party who has died after the appeal has been, taken. See Ferguson-Steere Motor Co. v. State Corporation Commission, 59 N.M. 220, 282 P.2d 705. However, the brief tendered by the petitioners for intervention will be received and has been considered as an Amicus Curiae brief on the principal issue on this appeal.

The motion for rehearing must be denied. Supreme Court Rule 20(1) (§ 21-2-1(20) (1), N.M.S.A.1953), reading: “None but jurisdictional questions shall be first raised in the Supreme Court,” -prevents consideration of questions which the Attorney General concedes were neither presented by the pleadings nor determined by the court below. Danz v. Kennon, 63 N.M. 274, 317 P.2d 321; Hay v. New Mexico State Highway Dept., 66 N.M. 145, 343 P.2d 845; Johnson v. Sanchez, 67 N.M. 41, 351 P.2d 449; Koran v. White, 69 N.M. 46, 363 P.2d 1038; Entertainment Corp. of America v. Haiberg, 69 N.M. 104, 364 P.2d 358; In re Guardianship of Caffo, 69 N.M. 320, 366 P.2d 848; Montano v. Saavedra, 70 N.M. 332, 373 P.2d 824; Gibson v. Helms, 72 N.M. 152, 381 P.2d 429; Shelley v. Norris, 73 N.M. 148, 386 P.2d 243; McDonald v. Artesia General Hospital, 73 N.M. 188, 386 P.2d 708; Higgins v. Board of Directors of New Mexico State Hospital, 73 N.M. 502, 389 P.2d 616. A non-jurisdictional question cannot be raised for the first time in the Supreme Court where no ruling was invoked in the trial court. Davis v. Severson, 71 N.M. 480, 379 P.2d 774. Fundamental error is neither asserted nor invoked here.

It follows that both the motion to intervene or add parties to the action pending in the Supreme Court and the motion for rehearing must be denied.

It is so ordered.

CHAVEZ, C. J., NOBLE and COMPTON, JJ., E. T. HENSLEY, Jr„ C. J., Ct.App., and WALDO SPIESS, J., Ct. App., concur.