*1 partial 4. Total or disability. erly recovery limited his for these fees to n required by It was the Legislature $750. trial The court found that Scho limit, impose inequitable this however it disability ber’s The 30%. determina might seem in the circumstances. degree disability tion of the in work compensation men’s generally cases is of the trial court is af- matter for the trial and absent mis respects, except firmed in all in finding application of the law or lack of substantial disability and order that payments evidence, appellate court should not sub February cease on 1978. The cause is stitute its for that of the trial remanded and the court below is instructed Industries, Evans, court. Ideal Basic payments to order disability for 30% to con- There is tinue changed pursuant until and unless finding substantial evidence to this 52-1-56, § N.M.S.A.1978. Plaintiff partial disability, and so we do not dis $1,500 awarded for the services of his attor- turb it. ney on this IT IS SO ORDERED. expert 5. The limit on $750 witness fees. Chapter 38 of the New Mexico WOOD, J., ANDREWS, J., C. concur.

Statutes, N.M.S.A.1978,regulates civil trials general. chapter Section 38-6-4 of that allows the district payment court to tax the expert costs,

of an witness as but limits

compensation to That statute $750. reads pertinent part:

Per mileage diem and for witnesses. B. judge district McKEE, Individually Frankie L. and as pending in the district order Representative Personal of the Estate payment fee, of a reasonable to be McKee, Deceased, of Mona V. Plaintiff- taxed as costs . . . for witness who Appellee, qualifies expert as an and who testifies in expert

the cause. . . . The total witness compensation be allowed CORPORATION, Gary UNITED SALT prevailing the court to the party shall not W. Grice and Richard G. fifty ($750). exceed seven hundred dollars Defendants-Appellants. This statute is made to cases No. 4463. arising Compensation under the Workmen’s 52-l-35(B), Act N.M.S.A.1978which Court of Appeals of New Mexico. part: states in Dec. 1980. charged, No costs shall be taxed or except collected the clerk fees for wit-

nesses compensation workmen’s [in cases] testify subpoena. under These wit-

nesses shall be allowed the same fee for mileage

attendance and as is fixed law

in other civil actions. claim expert

No is made that the witnesses testify subpoena.

Despite expenses of Schober’s fees, expert witness which the court testimony

found reasonable which was case,

necessary prop- to Schober’s the court *2 Ritchie, Dickason, Sloan, Rodey,

James C. Robb, A., Albuquerque, Akin P. & for de- fendants-appellants. Socorro, Fitch, plaintiff-

Thomas G. for appellee.

OPINION HERNANDEZ, Judge. brought personal rep- suit as the

Plaintiff decedent, resentative estate was killed an automobile accident. two Plaintiff that the individuals in negligent liable other vehicle were also al- vehicle. Plaintiff leged employees that the individuals were Corporation, of defendant United vicariously that United Salt was liable employer negligent was en- trustment the vehicle. The two individu- appear, al defendants failed to answer or and default entered them New Rule of Pro- Mexico Civil cedure moved fault, simply and a the two enter a default aside him, pro denied decree The motion was formal confesso other defendants. granted proceed this court the cause the an- the district * * * * interlocutory We affirm. swers of other defendants Vega, supra. Frow v. De La Federal courts granted The district expressed whether the Frow have doubt 54(b)(2), provides as under Rule *3 holding is still under modern follows: Compa- procedure. Redding rules of See & (2) Judgment involving multiple par- ny, Corpora- v. Russwine Inc. Construction involved, multiple parties ties. When are tion, (D.C.Cir.1972). 463 F.2d Nonethe- may adjudicating judgment be entered less, the doctrine has said to have a more, fewer issues as to one or but all application proceedings. limited in modern parties. judgment shall be than all Such unlikely it most that Frow re- “We think a final one unless the in its discre- adoption the any subsequent force to tains tion, provides expressly and a otherwise event, most, Frow Rule In at of provision to that in the effect is contained liability of in situations where the controls made, provision If is such upon the necessarily depends one defendant judgment the terminate then shall not Con- liability of the others.” International party parties action as to or the (2d Vesco, Corporation v. 535 F.2d trols subject be to time shall revision 1976). held that a This court has also Cir. adjudicat- judgment the before against multiple de- verdict one of directed ing rights all claims and liabilities the appealable under is not final and fendants parties. all the to 54(b) if the as Rule issues determined court is entitled “FI- judgment The district may affect the one defendant “will or that (As NAL JUDGMENT to Some Defend- relating the to the determination of issues” ants),” judgment shall and states that “this v. Texico Con- other defendants. Nichols judgment constitute a final and order Day Adven- ference Association Seventh against Defendants W. Grice and 310, (Ct.App. tists, N.M. 430 P.2d 881 Richard W. Patton.” Under 1967). judgment then as to terminated the action resolved, then, question to subject Grice and Patton and was not the defendants against claims whether the revision. joint the default are claims which United Salt contends that the district deter- the trial to “will or affect” refusing erred in aside the liability Salt. mine the United de- the individual necessarily depends Salt liability of United materially because the liability of individual defend- upon the prejudices rights in de- of United Salt ants, should not be fending This ar- against on the claims it. final. gument is based on calls what defendant doctrine,” La the “Frow v. De from Frow of lia alleged one basis Plaintiff (15 Vega, Wall.) 552, liability 82 U.S. 21 L.Ed. 60 complaint the vicarious bility in his (1872). The Frow employees case involved a bill for the torts employer anof equity claiming to restrain employ defendants from their scope acting within title to certain lands of an because joint claim claim is a ment. This Supreme conspiracy. The that a Court held defendants, liability of the because the final decree on merits could not be necessarily depends upon a show employer separately against made one of defend- by employees was committed a tort ing that joint pending ants where a charge was still employ of their acting scope within the against the others. upon the ment, employees are they committed the tort. See proceeding showing

The true where that mode of Neeld, Corp. 91 N.M. joint charge against bill makes a Oil several Samedan Thus, defendants, though even one of them makes P.2d de- 577 the second claim United Phelps Corp. of discretion. Dodge v. Guer- joint claim the fact that ra, one is 582 P.2d 819 Discre- apply claim is sufficient the case law tion, sense, only in this is abused when the position cited above. United Salt’s is tech judge arbitrarily has acted or unreasonably nically cited, correct under the rules of law particular under the circumstances. Ri- and a final default should not Mayfield, chins v. have been ordered. (1973). Rule necessarily confers discre- tion upon the trial court to refuse to set asserts, however, . Plaintiff aside a if this would not be “in- standing challenge has no justice.” consistent with substantial See validity final in this Neill, Adams McGahey & N.M. general rule of law is that “[a] court of review will not assign entertain ments prejudicial of error which While the final default injurious but not to others as to him.” 5 technically in error under the Frow *4 Appeal C.J.S. and Error 1497. United doctrine, this court should reverse the appeal Salt’s contention on the dis district court’s decision not aside that trict court will committed error which judgment unless there is an abuse of discre prejudicial to it at trial. In order to deter were tion. There sound reasons for the then, mine if has standing, we court’s judg district decision. The final must examine the merits of that claim. No prevent delay seeking in ment will to satis prejudice by is shown in United its fy judgment obligation the of those defend pleadings. possibility prejudice The appear against ants who did not and defend prevented trial can by a motion in limine possibility prejudice, The the claim. testimony restrict judgment, about the above, through regu can be handled stated byor voir dire jury examination and correct procedures. Finally, lar it trial should be regarding any testimony. instructions such represent noted that United Salt has been There is no indication that the default final by in this action outset, ed counsel from the judgment present any will greater induce given plaintiff’s notice and was applica perjury by ment for the defend individual judgment. tion for default United Salt had might ants than exist in action. civil present then to opportunity argu the Because we no find substantial basis judgment the against ments default or to believing preju that United Salt will be steps judgment, take to avoid other error, injured diced or there is no nothing final but it did was standing appeal judg for this from that believe, under given. We do not these cir ment. cumstances, court’s that the district refusal standing, Even there were how if the default was arbi to set aside ever, the same would be un result reached trary or unreasonable. precise der the “harmless error” rule. The court is The of the district af- alleged issue in this is the of the error firmed. refusing district court to set aside final Setting default aside a IT SO ORDERED. IS discretionary appellate with the trial courts J., ANDREWS, concurs. will not interfere with the action of the SUTIN, J., upon trial except showing of abuse dissents. Insurance, Upland

1. The second claim United Salt was for driver.” Mutual Noel, negligent of the vehicle. “The ra- 214 Kan. This entrustment 519 P.2d not, then, ‘negligent cases is tionale of the entrustment’ claim was claim Unit- necessarily upon negligence depend driver not founded ed Salt because it did not upon negli- liability primary of the automobile but of the other defendants chattel, gence supplying liability of the entruster of United Salt. find automobile, incompetent an reckless What Grice and Patton admitted SUTIN, (dissenting). Judge driving that one or the other was the truck I dissent. They tractor. did not admit that both alleged that “De- complaint Plaintiff’s reckless, in a drove the vehicle wanton and or Defendant Rich- Gary W. Grice fendant proof willful manner. Without of which Patton, negligently drove a 1971 ard G. operating one was the vehicle at the time of owned Defend- tractor truck GMC diesel collision, cannot negli- Corporation, which ant United Salt stand. proximately caused the gent [Emphasis add- V. McKee.” Mona death of “The of a default ed.] is not considered an defendant admission that Grice and complaint unliqui- also defendant of the amount of

The with the individually entrusted damages by plaintiff.” Patton were dated claimed on the judgment was entered vehicle. No Gallegos, supra. [Id. 1160.] plaintiff’s theory alleged in entrustment punitive damage “A claim is not admitted complaint. Gallegos, supra. a default.” [Id. compensatory complaint sought also 547 P.2d 1160.] damages pu- sum It is obvious that if Grice and Patton had $100,000.00. damages nitive in the sum of filed motions to vacate the default entered as a Final ment, we would have reversed the district Judgment that “Defendant W. found steps gives court. The law in and Richard Grice and Defendant G. error. the benefit of this reversible negligently drove a 1971 GMC diesel truck *5 * * * authority or The trial court was without negligent operation tractor fixing power to enter a proximately caused the death of Mona V. default * * * McKee”; by of recovery “That in the absence the amount of evidence, and, does, W. Grice and Richard G. Patton was is if it reckless, wanton, willful and with total dis- merely erroneous or voidable. void and not others, property regard for the life and Walters, (Okl.Ct. 702 v. Graves McKee”; including V. “That the sole Mona App.1975). proximate and cause of the actions of De- be uniform that “a appears rule Gary W. Grice and Richard fendants G. absolutely enti- void is judgment which is * * * * * * plaintiff has Patton and respect, authority and there- tled to no $250,000.00.” damaged in the sum [Em- time, may impeached fore be allegations phasis The same were added.] sought is to be en- proceeding in which it punitive damages with reference to made validity ques- is in which the forced or $100,000.00 special damages. and the sum of tioned, anyone rights with whose or in- “ORDERED, ADJUDGED Judgments 49 C.J.S. it conflicts.” terests Plaintiff have and AND DECREED that Am.Jur.2d, (1947); Judg- 46 p. 794 § Gary W. and recover of Defendants Grice (1969). ments, p. United Salt 800 § them, G. and each of Richard plaintiff’s default to attack was allowed for which said Defend- sum relationship with judgment because of * * jointly severally are and liable ants and Patton. Grice [Emphasis added.] (c) the Rules of Civil Rule and Franklin, Gallegos v. In default provide for Procedure (Ct.App.1976), P.2d 1160 this Court said: 547 under Rule Grice setting it aside and default, By virtue of the the defend- defaulting defendants. Patton were and allegations admitted the ants have appearing defendant. was an United Salt complaint. averments are taken as These defendants who is one of several When require For those matters which true. defaults, jointly it is an details, plaintiff examination of must discretion to enter default [Emphasis abuse of proof. furnish added.]

387 their together right him until matter has been ment with to appeal adjudicated to all regard defendants. for relief when an abuse of discretion oc- Thompson-Hayward Reliance Ins. Cos. curs. Common sense dictates that all de- Co., 214 Kan. Chem. jointly severally liable should from Frow v. De This rule flows La entity procedural treated as one pur- Wall.) Vega, (15 21 L.Ed. U.S. poses to avoid vexatious results. If United Miller, (1872); Wright and Federal 10 C. loses, plaintiff wins. Procedure, (1973); Practice wins, plaintiff loses. A default judgment, Practice, ¶ (1976); 55.06 Moore’s Federal law, disfavored in the should not be used as Indus., Exquisite Equisite Form Fab- crutch to plaintiff’s claim for London, (S.D.N.Y. F.Supp. 403 rics of relief. 1974). typically This doctrine arises where 54(b)(2) of the Rules of Civil Proce- is party appealing who has defaulted dure majority set opinion forth in the is not Patton for relief. Grice and judgments. to default It reads However, rule should insure to the above pertinent part: Salt. the benefit of United multiple involved, When parties are extending opinion, To avoid this I have judgment may adjudicating be entered setting refrained out the innumerable from more, all issues as to one or but fewer legal problems arise if the that parties. [Emphasis than all added.] Prejudice, allowed to stand. confusion and inconsistent result to hearing verdicts A default absent a appearing defendant would show that “adjudication not an all issues.” “Notice doctrine applied should be in this heard, case. See hearing, opportunity or an to be generally, Annot. defense Successful one upon the is essential to a decision merits. codefendant, finding or a for “defendants” Any give well other conclusion could rise to as inuring defaulting to benefit of defend injustice remedy.” without serious and that ant, 78 A.L.R. example, For if Sandoval, 444, 446, Otero defaults, one separate debtor no judg P.2d 319 Grice Patton did not him, be entered since hearing application on an receive notice of remaining joint right debtors have the plaintiff default and no *6 defend for all of them. Diamond National hearing was not was held. Evidence Corp. Hotel, Inc., v. Thunderbird 85 Nev. presented. adjudi- wants to If a trial court 271, (1969); 454 P.2d 13 State ex rel. Ever issues, refuse cate the it can to enter a Sanders, 75, ett v. Or. 544 274 P.2d 1043 dismiss the action and (1976). city against But in a a suit upon plaintiff failure offer evidence or owners of or various tracts land to foreclose judgment. demonstrate entitlement liens, paving plea a of limitations owners 194, Hunton, Wagner v. N.M. 76 appeared inure to the benefit (1966). 474 City of owners who defaulted. of Albu “adjudication” essentially implies An Huddleston, 240, querque v. 55 N.M. 230 notice, hearing by legal after P.2d 972 issue evidence on the factual involved. To multiple complex legal avoid (Tex.Civ. Fillip, Genzer v. 730 134 S.W.2d problems, judicial history has shown that a 25, App.1939); People Hugo, 168 v. N.Y.S. good rule law one factual Sohmer, (1917); People v. 101 Misc. 481 207 situation applied comparable will be to a (1913); N.Y. 101 Western N.E. 164 principles. one under common sense It is Klein, Assur. Neb. 67 N.W. Co. 48 fair to withhold of de- States, (1896); (Krug) 873 Rank v. until the who default matter has F.Supp. (D.C.Cal.1956); 1 State Hoff- adjudicated regard to all appear- with man, P.2d 741 Or. ing jointly defendants Ap- who are liable. pearing long judg- It has that default defendants should be entitled been held to the principle in the in the benefit of that ments are not favored law. defense of 55(b) Rules of Civil Procedure does of the “open season” default- declare defendants, especially large where sums

ing money When a are involved. defendant appear, process and fails to

is served A

inquiry should be made. defendant that a default has been

should be notified held, hearing upon based

entered. facts, testimony, evidence and the trial can determine its discretion wheth-

court judgments. grant deny default

er to necessary procedure to enable the

This to enter Herrera v. Corporation,

Springer P.2d Sutin, J., (Ct.App.1973), dissenting,

rev’d, N.M. also, Phelps, Gengler v.

See Sutin, J., special- (Ct.App.1976),

ly concurring. Corporation attacked the de-

United Salt pursuant

fault to Rule

the Rules of Civil Procedure. Based (1)

the fact that the default went

beyond allegations complaint liable; (2)

held both Grice and Patton large void due to a compensatory punitive

ment for dam- thereof;

ages without evidence

(3) the trial court abused its discretion in

awarding plaintiff judgment; a default

(4) Corporation interests were affected;

adversely of its motion denial

set aside the default was reversi-

ble error. *7 CHURCH, Plaintiff-Appellant,

Jane Ann CHURCH,

David Harlan

Defendant-Appellee.

No. 4934. Appeals of New Mexico.

Court

June 1981.