Johnson v. Johnson , 74 N.M. 34 ( 1964 )

MOISE, Justice.

An examination of the record in this case discloses that the final decree appealed from was entered on July 26, 1962. On August 23, 1962 a motion for “Leave to Appeal” was filed, and on August 24, 1962 an order was entered granting such leave and fixing bond. Thereafter, on August 29, 1962, there was filed a notice dated August 24, 1962 that “Leave to Appeal from the Judgment of this Court entered on the 26th day of July, 1962” had been granted.

The complaint in this case was filed August 14, 1961 and accordingly the allowance of an appeal is governed by Supreme Court Rule 5(1, 5) (§ 21-2-1 (5) (1, 5), N. M.S.A.1953) effective March 15, 1961, and applicable to cases filed in district courts on and after that date.

Rule 5(5) reads:

“Appeals, as provided by law, shall be taken by filing a notice of appeal with the district court in which the judgment or order appealed from is rendered. * * * ”

This is the first time we have encountered a question of whether or not failure to file notice of appeal within 30 days after entry of a final judgment deprives this court of jurisdiction. We recently held that this court had jurisdiction to review a district court judgment where a notice of appeal containing the requisite information was timely filed, even though a motion and order allowing an appeal had been entered and it was quite apparent that the notice was in the form and intended as a compliance with Supreme Court Rule 7 (§ 21-2-1(7), N.M.S.A.1953). Reed v. Fish Engineering Company, 74 N.M. 45, 390 P.2d 283.

Under the rule as it existed prior to the amendment effective March 15, 1961, we had held that the timely filing of an order allowing an appeal was jurisdictional, Chavez v. The Village of Cimarron, 65 N.M. 141, 333 P.2d 882; Adams v. Tatsch, 68 N.M. 446, 362 P.2d 984, and this being true the court was bound to act on its own motion where the absence of jurisdiction was noticed, even though not raised by the parties. William K. Warren Foundation v. Barnes, 67 N.M. 187, 354 P.2d 126.

In the instant case, the parties do not mention the fact that the notice was filed more than 30 days after entry of the decree appealed from, but having noticed it we must consider it, whereupon we cannot escape the conclusion that we do not have jurisdiction to consider the appeal.

As we view the situation, as to all cases filed in the district court on and after March 15, 1961, the filing of the notice of appeal has replaced the filing of the order allowing the appeal as the basis for the appeal and, unless the notice is timely filed, no jurisdiction is vested in this court, just as was true concerning the order allowing appeal under the rule before its amendment. William K. Warren Foundation v. Barnes, supra.

This conclusion accords with the decision in the federal courts where appeals are taken by filing a notice of appeal. 28 U.S.C.A., Fed.R.Civ.Proc., Rule 73(a). Typical of numerous cases so holding are Morley v. United States (U.S.C.A. 6, 1953) 207 F.2d 654; Kahler-Ellis Company v. The Ohio Turnpike Commission (U.S.C.A. 6, 1955) 225 F.2d 922; Shotkin v. Popenhager (U.S.C.A. 5, 1958) 255 F.2d 100; Barnes v. American Broadcasting Company (U.S.C.A. 7, 1958) 259 F.2d 858; Smith v. Stone (U.S.C.A. 9, 1962) 308 F.2d 15.

Lacking jurisdiction to consider the appeal, the same is dismissed. It is so ordered.

CPIAVEZ and NOBLE, JJ., concur.