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Long v. Continental Divide Electric Cooperative3/17/1994
DONNELLY, Judge.
The issue before us arises out of Plaintiffs' motion to lift a stay of enforcement of a judgment during the pendency of Defendant's appeal. After reviewing the motion and Defendant's response, we hold that the district court erred in issuing the stay.
FACTS
Plaintiffs, on behalf of their minor child, filed a personal injury lawsuit against Defendant for damages sustained by the child resulting from severe burns received by her. While climbing a tree the child came into contact with an electric line owned by Defendant. Following trial the jury returned a verdict for Plaintiffs totalling almost $500,000, together with interest. Judgment was entered on the verdict on July 28, 1993. Defendant filed a timely notice of appeal on August 27, 1993. At the time it filed its appeal, Defendant did not file a supersedeas bond or request a stay of execution. On November 11, 1993, more than ninety days after the date of the judgment and more than sixty days after the notice of appeal was filed, Defendant filed a petition requesting permission to file a supersedeas bond and asking the district court to grant a stay of execution. On November 30, 1993, the district court allowed Defendant to file a supersedeas bond and granted Defendant's requested stay.
Discussion
Plaintiffs contend the district court erred in permitting Defendant to file a supersedeas bond and granting a stay of enforcement of the judgment. NMSA 1978, Section 39-3-22(A) (Repl. Pamp. 1991), provides "there shall be no supersedeas or stay of execution upon any final judgment or decision of the district court in any civil action in which an appeal is taken . . . unless the appellant . . . within sixty days from the entry of the judgment or decision, executes" a supersedeas bond. (Emphasis added.) The statute thus provides a sixty-day period after judgment in which an appellant may perfect a stay and supersede a judgment. . The statute also provides that for good cause shown the district court may grant an appellant additional time, not to exceed thirty days, in which to post the supersedeas bond. Section 39-3-22(A). Under the statute, therefore, the maximum amount of time allotted for the purpose of filing a bond and obtaining a stay of execution pending appeal is ninety days from the date of judgment. Defendant in this case did not request a stay or attempt to post a bond until more than two weeks following the ninety-day maximum established by the statute.
Similarly, SCRA 1986, 1-062(D) (Repl. 1992) also limits the time within which an appellant may obtain a stay pending appeal by filing a supersedeas bond. The rule allows the posting of a bond at any time within thirty days after the filing of a notice of appeal and grants the district court discretion to extend the time to post a bond for up to thirty additional days. Under the rule, if certain post-trial motions are filed, the district court is authorized to grant more time in which to file a supersedeas bond than the time limits imposed by statute. SCRA 1-062(D). No such motions were filed here. Therefore, we need not resolve any potential conflict between the rule and the statute. Under either the rule or the statute the absolute deadline for Defendant to post a bond and obtain a stay of execution was October 26, 1993, ninety days from the date of judgment and sixty days from the notice of appeal. Defendant's request for a stay, and the district court's grant of the stay, occurred after the deadlines specified by both the statute and the rule.
As observed in 4 C.J.S. Appeal and Error Section 42
Page 1 2 3 New Mexico Personal Injury Attorneys
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