(dissenting).
I dissent.
As my sisters say, I exalt form over substance. They believe that the failure to state a cause of action allows entry of a summary judgment; that sustaining a motion for summary judgment constitutes a summary judgment; that an order sustaining a motion for summary judgment is a final judgment from which to appeal.
On April 8, 1975, plaintiff brought a class action to declare void a 5% penalty assessed against property listed and valued prior to March 1, 1974. Defendants did not answer. Instead, they filed a motion for summary judgment. A hearing was held.
Two years later, absent any fault of the parties for delay, the district court sustained the motion for summary judgment. It was entitled “ORDER SUSTAINING MOTION FOR SUMMARY JUDGMENT.” In the Order entered, the district court stated that in his opinion, the motion should be sustained:
. as the Plaintiff, in his pleadings has not shown any cause of action under the statutes of the State.
No finding was made “that there is no genuine issue as to any material fact,” and that defendants are entitled to a judgment as a matter of law. Rule 56(c) of the Rules of Civil Procedure. A summary proceeding is used to determine whether an issue of fact exists, not to determine whether plaintiff’s complaint states a claim for reiief. Rekart v. Safeway Stores, Inc., 81 N.M. 491, 468 P.2d 892, 38 A.L.R.3d 354 (Ct.App.1970).
Furthermore summary judgment was not entered for defendants. The Order states:
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED BY THE COURT that the Motion for Summary Judgment be and the same is granted.
An appeal can only be taken from a final judgment. The granting of a motion for summary judgment is nothing more than a determination that the party is entitled to a judgment. It does not constitute the entry of a final judgment. Felger v. Nichols, 30 Md.App. 278, 352 A.2d 330 (1976); Dowling v. Jensen, 28 Ill.App.2d 174, 171 N.E.2d 107 (1960).
The Order granting defendants’ motion was not submitted to the parties for approval as to form. Nevertheless, we have often cautioned attorneys to “Beware The Ides Of March.” Defendants should have sought entry of a final judgment and plaintiff should not have taken an appeal from an Order sustaining a motion. The expense involved and the labor lost in the preparation of briefs and oral argument is viewed by me with antagonistic eyes.
Four years have passed since the complaint was filed. I look with disfavor of a class action of this kind even though it was filed before Rule 23(a) and (c) of the Rules of Civil Procedure was revoked and vacated by Supreme Court Order on July 22, 1976. See Braziel-Castoria, The Future of Class Actions in New Mexico, 7 N.M.L.Rev. 225 (1977).
This case should be remanded to the district court and plaintiff should be granted an opportunity to establish his claim.