(dissenting).
I respectfully dissent.
(1) The trial court did not have jurisdiction to escape one judgment and enter another.
On June 29, 1972, plaintiff and defendants entered into a stipulation in settlement of a workmen’s compensation claim.
On September 6, 1972, a complaint for workmen’s compensation with tbe stipulation attached thereto was filed in court.
On September 8, 1972, judgment was entered approved by the attorneys for plaintiff and defendants. It decreed “that Plaintiff have and recover, from the Defendant the sum of $57.00 per week for a maximum of five hundred weeks. * * * ” On the same day, at the same time, plaintiff filed a motion for payment of compensation in a lump sum.
On November 20, 1972, a hearing was held. On January 8, 1973, the court’s findings of fact and conclusions of law were filed and judgment was entered in which the court decreed a lump sum settlement.
“All judgments * * * issued in workmen’s compensation cases shall be governed by the laws of this state with respect to judgments * * * in civil cases and shall have the same force and effect.” Section 59-10-16(B), N.M.S.A.1953 (Repl. Vol. 9, pt. 1). “Judgment” as used in the Rules of Civil Procedure “includes a decree and any order from which an appeal lies.” Section 21-1-1(54) (a), N.M.S.A.1953 (Repl. Vol. 4). The judgment of September 8, 1972, was a decree from which an appeal lies. La Rue v. Johnson, 47 N.M. 260, 141 P.2d 321 (1943); Fresquez v. Farnsworth & Chambers Company, 238 F.2d 709, 711 (10th Cir. N.M. 1956); Walterscheid, Civil Procedure — “Final Judgment Rule” in Workmen’s Compensation Cases, 8 Natural Resources Journal (1968).
Apart from appellate procedure, there are instances in which a judgment payable in installments is not final until the full statutory period has elapsed. This rule applies where there is a claim for increase or diminution of compensation or latent injuries. Durham v. Gulf Interstate Engineering Company, 74 N.M. 277, 279, 393 P.2d 15 (1964) and cases cited.
The judgment of September 8, 1972, was a final judgment from which an appeal lies. Section 59-10-16.1, N.M.S.A.1953 (Repl. Vol. 9, pt. 1). The motion of September 8, 1972, was orally decided on November 20, 1972, and by written judgment on January 8, 1973, more than 30 days after the filing thereof. When this event occurred, the motion was denied by operation of law and the trial court was without jurisdiction to proceed with a hearing, findings of fact and a second judgment. Section 21-9-1, N.M.S.A.1953 (Repl. Vol. 4); Wagner Land and Investment Co. v. Halderman, 83 N.M. 628, 495 P.2d 1075 (1972).
The rules of civil procedure for the district courts apply to all claims under the Workmen’s Compensation Act except where provisions of the Act directly conflict with these rules. Section 59-10-13.9, N.M.S.A.1953 (Repl. Vol. 9, pt. 1); Buffington v. Continental Casualty Company, 69 N.M. 365, 372, 367 P.2d 539 (1961); Corzine v. Sears, Roebuck and Company, 80 N.M. 418, 421, 456 P.2d 892 (Ct.App.1969) (concurring opinion); State ex rel. Sanchez v. Reese, 79 N.M. 624, 625, 447 P.2d 504 (1968).
The plaintiff did file a motion to alter the judgment within ten days after the judgment pursuant to § 21-1-1(59) (e), N. M.S.A.1953 (Repl. Vol. 4). But plaintiff failed to have a determination made within time allowed by statute.
(2) Section 59-10-13.8 is applicable.
The proceedings set forth above fall within the provisions of § 59-10-13.8, N. M.S.A.1953 (Repl. Vol. 9, pt. 1). A final settlement signed by the parties was approved by the court and a judgment of record entered. In Tocci v. Albuquerque & Cerrillos Coal Co., 45 N.M. 133, 142, 112 P.2d 515 (1941), the court said:
It is not a proper function of the courts to relieve either party to a contract from its binding effect where it has been entered into without fraud or imposition and is not due to a mistake against which equity will afford relief. It is not enough that in the light of subsequent events the agreement of settlement proves to have been unwise or unfortunate.
Plaintiff’s motion for payment of a lump sum sought an order directing defendant to pay a lump sum. No such power is granted by the workmen’s compensation statute after a final settlement is approved and judgment entered. Section 59-10-25(B) set forth in the majority opinion is not applicable. Ritter v. Albuquerque Gas & Electric Co., 47 N.M. 329, 334, 142 P.2d 919 (1943).
(3) Section 59-10-13.5 is not applicable.
The only basis upon which plaintiff sought relief was § 59-10-13.5, N.M.S.A. 1953 (Repl. Vol. 9, pt. 1, 1971 Supp.). It provides for the methods of paying compensation. Section A provides that “Compensation shall be paid by the employer to the workman in installments.” Section B, set forth in the majority opinion, provides that the liability of the employer may be discharged by payment of a lump sum whenever, in cases of death, the court determines that a lump sum payment is for the best interests of the parties entitled to compensation. Section B was amended in 1973 to provide for a petition to be filed.
The methods of paying compensation can be determined: (1) when the employer admits liability and begins payment; (2) when the employer and employee agree upon the method of payment before a claim is filed; (3) when, upon agreement, a judgment is entered; (4) when a trial is had and judgment entered; (5) when the judgment is altered according to law.
Section B is inapplicable after a final judgment is entered by agreement of the parties and it is not altered according to law. No provision is made in this section for a court determination after judgment is entered. No provision is made in this section for filing a motion after judgment is entered to allow the court to direct defendant to pay a lump sum.
(4) Assumingv the majority opinion is correct, attorney fees should be awarded.
Section 59-10-23(D) reads in part:
In all cases where compensation to which any person shall be entitled under the provisions of the Workmen’s Compensation Act shall be refused and the claimant shall thereafter collect compensation through court proceedings * * *, then the compensation to be paid the attorney for the claimant shall be fixed by the court. * * * [Emphasis added].
Section 59-10-13.5(B) reads in part:
Whenever the court determines * * * that it is for the best interests of the parties entitled to compensation * * *, the liability of the employer for compensation may be discharged by the payment of a lump sum equal to the present value of all future payments of compensation. * * * [Emphasis added].
Lump sum compensation is awarded in lieu of installment compensation. Lump sum compensation was refused. The majority agree thát plaintiff was entitled to lump sum compensation through court proceedings under a provision of the Workmen’s Compensation Act. In my opinion, claimant is entitled to attorney fees. “[I]n view of the nature of the case, a matter of first instance, the work done and the results accomplished, a fee of Three Thousand Dollars” was held reasonable. Shillinglaw v. Owen Shillinglaw Fuel Company, 70 N.M. 65, 71, 370 P.2d 502 (1962).
Judge Hendley’s opinion says “The amount of compensation was not in excess of what plaintiff was first awarded.” This is not pertinent under § 59-10-23 (D), supra.
The judgment should be reversed.