MacLellan v. Eyermann
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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 2 3 4 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO JOANN M. MACLELLAN, Individually and as Guardian and Trustee of DAVID TIMOTHY KING, DANIEL J. KING, and JOHN R. KING, 6 Claimants-Appellants, 7 v. No. 33,123 8 VIRGINIA N. EYERMANN, 9 Personal Representative-Appellee, 10 IN THE MATTER OF THE ESTATE OF 11 PHILLIP TIMOTHY KING, Deceased. 12 APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY 13 J.C. Robinson, District Judge 14 Scott Hulse P.C. 15 Casey S. Stevenson 16 El Paso, TX 17 for Appellants 18 M. Yvonne Gonzalez 19 Silver City, NM 20 for Appellee 1 MEMORANDUM OPINION 2 VIGIL, Judge. 3 {1} Appellant, JoAnn M. MacLellan, Individually and as Guardian and Trustee of 4 David Timothy King, Daniel J. King, and John R. King, seeks to appeal from the 5 district court s amended order, dated July 31, 2013, denying her request to vacate the 6 district court s order, dated July 2, 2013, denying her claims. [DS 2, RP 397, 357] 7 We issued a notice proposing to summarily remand to allow the district court to 8 consider an outstanding motion for relief from judgment filed by MacLellan in the 9 district court on August 1, 2013. MacLellan did not file a response to our proposed 10 disposition, but the Personal Representative of the Estate of Phillip Timothy King, 11 Virginia N. Eyermann, filed a timely memorandum in opposition. 12 {2} We continue to believe that MacLellan s post-judgment motion should be 13 construed as a motion under NMSA 1978, Section 39-1-1 (1953), and that in the 14 interests of judicial economy, this case should be remanded to the district court so that 15 it can rule on this motion. Accordingly, we remand this case to the district court. 16 {3} IT IS SO ORDERED. 17 18 __________________________________ MICHAEL E. VIGIL, Judge 19 WE CONCUR: 2 1 ___________________________________ 2 LINDA M. VANZI, Judge 3 ___________________________________ 4 M. MONICA ZAMORA, Judge 3
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