Evans v. Barber Super Markets, Inc.

363 P.2d 625 (1961)

69 N.M. 13

Jack N. EVANS and Grace D. Evans, Plaintiffs-Appellants, v. BARBER SUPER MARKETS, INC., and The Green Giant Company, Defendants-Appellees.

No. 6877.

Supreme Court of New Mexico.

July 12, 1961.

Koogler & Smith, Aztec, for appellants.

Tansey & Rosebrough, Farmington, for appellees.

COMPTON, Chief Justice.

Unfortunately this appeal cannot be disposed of on the merits due to appellants' failure to comply with the provisions of Sec. 21-2-1(5) (1), 1953 Comp., being our Appellate Rule (5) (1), which reads:

"Within thirty days from the entry of any final judgment in any civil action any party aggrieved may appeal therefrom to the Supreme Court * * *."

Pursuant to a motion filed by the defendant, Barber Super Markets, Inc., the complaint was dismissed for failure to state a claim upon which relief could be granted. The order of dismissal was entered August 29, 1960. The appellants moved for an appeal; however, the transcript fails to disclose an order granting an appeal.

While this jurisdictional question is not raised by the parties, the failure to do so is inconsequential. This court will notice the state of the record to determine *626 whether it has jurisdiction and may from its own discovery question that fact. State v. Arnold, 51 N.M. 311, 183 P.2d 845; Flores v. Duran, 68 N.M. 42, 357 P.2d 1091.

The order granting an appeal is the basis of our jurisdiction; jurisdiction cannot be conferred by waiver or consent of the parties. William K. Warren Foundation v. Barnes, 67 N.M. 187, 354 P.2d 126. Also, see Adams v. Tatsch, N.M., 362 P.2d 984.

The appeal must be dismissed, and it is so ordered.

CHAVEZ and MOISE, JJ., concur.

CARMODY and NOBLE, JJ., not participating.