observing that an appellate court may consider indispensability even if it was not raised at trial
How later courts described this case
- observing that an appellate court may consider indispensability even if it was not raised at trial
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Safeco Insurance Co. of America v. United States Fidelity & Guaranty Co., 101 N.M. 148 (1984)
See Sellman v. Haddock, 62 N.M. 391, 397, 310 P.2d 1045, 1049 (1957) (observing that an appellate court may consider indispensability even if it was not raised at trial), overruled on other grounds by Safeco Ins. Co. of Am. v. U.S. Fidelity & Guar. Co., 101 N.M. 148, 679 P.2d 816 (1984).
The opinion
SADLER, Justice (dissenting).
This appeal presents as near perfect a case for applying the ancient saw found in legal lore — lex non curat de minimis — ■ “the law does not concern itself about little things,” — as ever has come to my attention.
The case had reduced itself to a $50 law suit by the time it reached judgment. The defendant raises the vexing legal question upon which Mr. Justic KIKER has prepared a lengthy and exhaustive opinion for the court announcing a decision of a question on which we should decline to speak. Why?
Because the plaintiff started the suit seeking recovery of over $500, whereas he showed himself entitled to only $50 thereof, if any, under the court’s findings. But the defendant, who alone could justly complain of plaintiff’s effort to appropriate the entire damage to himself, by failing to appeal, showed himself perfectly willing to accept the recovery of $50 and drop the matter.
Now, by raising here for the first time, as say the majority, even though defensively, the question of absence of an indispensable party, the defendant would set us off on an investigation and study absorbing much of our valuable time, as demonstrated by the prevailing opinion, when following trial he was willing to remain mum and face the judgment, but for the plaintiff’s appeal. He, the defendant, who was satisfied then, thus has no right to complain, if we treat him so now.
The plaintiff cannot justly complain, since he is getting $50 he probably could not have shown himself entitled to at all, attempting, as he was, to split a cause of action the court found he had assigned. Thus, it aggrieves me none at all to apply the legal maxim invoked above, without either gratifying defendant’s curiosity on the question of parties, or hearing plaintiff’s appeal on the merits, if there be any merit in his effort to have judgment on a cause of action, either all or part of which he had assigned. We should dispose of the appeal by quoting to him the legal maxim — lex non curat de minimis.
This would call for an affirmance. The majority think plaintiff should have a new trial, thus imposing an added expense on the Dona Ana County court fund, as well as making an undue requisition on the time of the parties, the court below and this Court, as well, should a second appeal follow.
I dissent.