Upon any hearing before the judge of a court, wherein the judgment of the court upon such hearing shall not be rendered at the time of such hearing, but shall be taken under advisement by the judge, no judgment or order relative to the matters pertaining to such hearing shall be entered until notice of the same shall have been given to the attorneys for the respective parties in the action.
History: Laws 1897, ch. 73, § 136; C.L. 1897, § 2685(136); Code 1915, § 4229; C.S. 1929, § 105-845; 1941 Comp., § 19-902; 1953 Comp., § 21-9-2.
ANNOTATIONSCross references. — For entry of judgment, see Rule 1-058 NMRA.
Failure to notice not error if no motion to vacate is made. — In a divorce proceeding, where the court entered an order determining the wife's specific share of community assets; no notice was given to the husband of the any presentment of the order; no presentment hearing was held; and the husband failed to file a motion to vacate the order when he learned of its entry, the order was not void for want of notice of entry or a presentment hearing. Muse v. Muse, 2009-NMCA-003, 145 N.M. 451, 200 P.3d 104.
Applicability to workmen's compensation. — The provisions of this section are applicable to actions for recovery of compensation under the Workmen's Compensation Act. Moore v. Phillips Petroleum Co., 1932-NMSC-025, 36 N.M. 153, 9 P.2d 692.
Duty of court to notify counsel. — It was the duty of the court, having had the cause under advisement, to notify counsel of its proposed judgment and give them an opportunity to present findings and conclusions. Barelas Community Ditch Corp. v. City of Albuquerque, 1957-NMSC-044, 63 N.M. 25, 312 P.2d 549.
Order modifying child custody and awarding support, submitted ex parte by wife's counsel, contrary to prior arrangement, required notice to be served on husband's counsel before judgment was entered. Skelton v. Gray, 1984-NMSC-051, 101 N.M. 158, 679 P.2d 826.
Notice to opposing counsel. — Judgments and orders must indicate by counsels' signatures that all parties affected have seen them before they are presented for the judge's signature, and the judge shall be satisfied by proof of service that notice of presentation has been given to the attorneys for all parties. Whoever files an order or judgment shall forthwith provide all other parties with a copy showing the date of filing. Montano v. Encinias, 1985-NMSC-107, 103 N.M. 515, 709 P.2d 1024.
Court has inherent power to direct manner of service. R.V. Smith Supply Co. v. Black, 1939-NMSC-016, 43 N.M. 177, 88 P.2d 269.
Remedy for judgment without notice is motion to vacate. — Where, after taking under advisement, district court makes findings and enters judgment without notice to losing party, the remedy is by motion to vacate judgment. Moore v. Brannin, 1929-NMSC-003, 33 N.M. 624, 274 P. 50.
Counsel not consent to judgment though endorsed proposal. — Where defense counsel endorsed proposed judgment by signing his name below the word "submitted," and failed to submit requested findings and conclusion, he did not waive the right of appeal nor consent to entry of the judgment. Barelas Community Ditch Corp. v. City of Albuquerque, 1957-NMSC-044, 63 N.M. 25, 312 P.2d 549.
Failure of notice not error if no vacate motion made. — Failure to give notice of the entry of judgment is not available as error if no motion to vacate has been made, particularly if appellant has obtained consideration nunc pro tunc of his objections and their incorporation in the record. McKinley County Abstract & Inv. Co. v. Shaw, 1925-NMSC-031, 30 N.M. 517, 239 P. 865.
Lack of notice not error where jurisdiction lost. — The taking of an appeal within the time provided was jurisdictional and trial court's denial of appellant's motion to correct docket entries to show timely filing of notice of appeal on the basis that it had lost jurisdiction over the cause due to passage of 30 days from time of entry of judgment was not error, even where appellant was not notified of date of entry of judgment. Lopez v. Allied Concord Fin. Corp., 1971-NMSC-016, 82 N.M. 338, 481 P.2d 700.
When notice not required. — Where at the time the verdict is rendered the court announced that the motion for new trial would be considered filed and overruled, and judgment entered, no notice is required to be given to counsel of the entering of judgment. Fullen v. Fullen, 1915-NMSC-091, 21 N.M. 212, 153 P. 294; Sandell v. Norment, 1914-NMSC-087, 19 N.M. 549, 145 P. 259.
Judgment is not automatic lien on personal property. Von Segerlund v. Dysart, 137 F.2d 755 (9th Cir. 1943).
Judge without authority to change judgment after penitentiary commitment. — In the absence of an adjudication by the supreme court to the contrary, a district judge is without authority to change, alter or amend a judgment after issuance of commitment to the penitentiary. 1959 Op. Att'y Gen. No. 59-122.
Law reviews. — For annual survey of civil procedure in New Mexico, see 18 N.M.L. Rev. 287 (1988).
Am. Jur. 2d, A.L.R. and C.J.S. references. — Filing of notice of appeal as affecting jurisdiction of state trial court to consider motion to vacate judgment, 5 A.L.R.5th 422.
Authority of court, upon entering default judgment, to make orders for child custody or support that were not specifically requested in pleadings of prevailing party, 5 A.L.R.5th 863.
49 C.J.S. Judgments §§ 102, 112.