(dissenting).
On March 31,1975, Jemez Properties, Inc. filed a complaint in ejectment against the Luceros. On April 14, 1975, the Luceros answered and counterclaimed as owners of the land and sought to quiet title thereto. On June 5, 1975, Jemez Properties moved to amend its complaint substituting the Walshes as plaintiffs in place of Jemez Properties, and leave was granted to file a first amended complaint. None was then filed. Subsequently, the Walshes alone did file an amended complaint as owners of the property.
On August 25, 1975, the Luceros moved for dismissal of the above action with prejudice, and as grounds for said motion, would show the court “that the parties have settled their differences.” On the same day, an Order was entered
* * * that the above-entitled cause be, and it hereby is, dismissed with prejudice, and that the title of defendants, as claimed in their counterclaim regarding the property, which is the subject matter of this law suit, be, and it hereby is quieted and set at rest as against plaintiff * * *.
The only plaintiff whose action was dismissed with prejudice and against whom title was quieted was Jemez Properties, Inc. It did not include the Walshes.
On November 8, 1976, some 14V2 months later, Jemez Properties and the Walshes filed a motion “To set aside as null and void the final order of the court on August 25, 1975, pursuant to Rule 60(b) of the New Mexico Rules of Civil Procedure * * * that the deed under which the defendants claim title had in fact been falsified. * *" The Walshes were without authority to join in the motion because they were not parties in the August 25, 1975 Order.
On March 1, 1977, an Order was entered: 1. That the Final Order in Cause No. 6260 [the 1975 Lucero Judgment] is hereby set aside and declared void.
* * * * * *
4. That Plaintiffs in Cause No. 6260 are granted leave until March 15, 1977 to file amended complaints.
The Luceros now claim op appeal that the court erred in setting aside'their prior judgment of August 25,1975 becáuse the motion to vacate the judgment was untimely.
Jemez Properties argue that the Luceros’ contention cannot be raised because the Luceros did not appeal the March 1, 1977 Order that set aside the Luceros’ judgment of August 25, 1975.
Both arguments are correct, but Jemez Properties’ argument controls.
Rule 60(b) of the Rules of Civil Procedure allows a motion to be made not more than one year after judgment when the judgment was procured by fraud, misrepresentation or other misconduct. Parks v. Parks, 91 N.M. 369, 574 P.2d 588 (1978). Jemez Properties’ motion was late in filing and unless some other avenue of relief can be found, the Order of August 25, 1975 in favor of Luceros cannot be set aside.
Jemez Properties cannot rely on Rule 60(b)(4) — “the judgment is void.” The court had jurisdiction of the parties, the subject matter and the power and authority to act. Heckathorn v. Heckathorn, 77 N.M. 369, 423 P.2d 410 (1967). See Nesbit v. City of Albuquerque, 91 N.M. 455, 575 P.2d 1340 (1977).
Jemez Properties cannot rely on Rule 60(b)(6) — “any other reason justifying relief from the operation of the judgment.” This provision cannot be used to circumvent the one-year time period allowed for motions for relief from judgments on the ground of fraud. Parks, supra. Inasmuch as it cannot circumvent the one-year time period, Rule 60(b)(6) does not provide a reservoir of equitable power limited to exceptional circumstances where the limitation period has expired. The majority opinion cites Perez v. Perez, 75 N.M. 656, 409 P.2d 804 (1966) and Battersby v. Bell Aircraft Corporation, 65 N.M. 114, 332 P.2d 1028 (1958). Neither of these cases involve the one-year time period for filing a motion for relief from a judgment.
At this stage of the proceedings, Jemez Properties had no basis under Rule 60(b) to vacate the Luceros’ 1975 judgment. However, this judgment did not quiet out any interest that the Walshes had, if any, to the land involved in this case. The trial court erred in declaring the Luceros’ 1975 Judgment void by reason of fraud. But this erroneous ruling did not erase itself from the record.
The Luceros did not appeal the March 1, 1977 Order that set aside their August 25, 1975 quiet title judgment. If the Order entered on March 1, 1977 was final, and the final order was not appealed, it was as final as a final judgment. The final judgment entered would be that the Luceros did not have valid and legal title to the property involved, and Jemez Properties then had the right to proceed with ejectment. The case would be restored to the procedural position it was in on March 1, 1977, the time the Luceros’ 1975 judgment was set aside. In other words, if the March 1, 1977 Order was a final order, Jemez Properties, absent relief under Rule 60(b), would obtain this relief for failure of the Luceros to appeal. The question for decision is:
Was the March 1, 1977 Order that set aside the Luceros’ August 25, 1975 judgment a final and appealable Order?
In New Mexico, the answer is found by the application of Rule 3(a)(3) of the Rules of Civil Appellate Procedure. An appeal is allowed from:
“any final order after entry of judgment which affects substantial rights.”
Hoover v. City of Albuquerque, 56 N.M. 525, 245 P.2d 1038 (1952) holds that an order entered after final judgment wherein substantial rights are affected under Rule 3(a)(3), in response to a Rule 60(b) motion, is a final appealable order.
What is meant by the phrase “which affects substantial rights?”
In Singleton v. Sanabrea, 35 N.M. 205, 292 P. 6 (1930), a default judgment was entered for plaintiff against defendant. From an order vacating the default, plaintiff appealed. Defendant moved to dismiss the appeal on the ground that the order setting aside a default judgment was not an appealable order. The motion was denied. The court said:
Laws authorizing appeals relate to the remedy, and should be construed liberally in furtherance of the remedy.
The order does affect a substantial right and in that sense is a final order. But for such order, the plaintiff would have been entitled in law to the immediate fruits of his judgments. Of this right the order deprived him. [Emphasis added.] [Id. 206, 292 P. 7.]
This rule was followed in Kerr v. Southwest Flourite Co., et al., 35 N.M. 232, 294 P. 324 (1930); Gutierrez v. Brady, 45 N.M. 209, 113 P.2d 585 (1941) where the motion to vacate was denied; Davis v. Meadors-Cherry Company, 63 N.M. 285, 317 P.2d 901 (1957) where an order “reopening a judgment is not an order vacating a judgment”; Starnes v. Starnes, 72 N.M. 142, 381 P.2d 423 (1963); Gallegos v. Franklin, 89 N.M. 118, 547 P.2d 1160 (Ct.App.1976).
Under ' this rule, Luceros’ substantial rights were affected because their quiet title judgment was entered on their counterclaim after the parties settled their differences. This judgment was taken from them. But for the order entered setting aside the judgment, the Luceros would have had the right to good and valid title to the property as against Jemez Properties and could not be subject to ejectment. Of this right, the order deprived him.
The Luceros’ rely on Albuquerque Prod. Credit Ass’n v. Martinez, 91 N.M. 317, 573 P.2d 672 (1978). Judge Andrews states that Hoover was overruled by implication under the APCA opinion. I disagree. APCA did not discuss nor mention Rule 3(a)(3) which allows an appeal from “any final order after entry of judgment which affects substantial rights.”
In APCA, APCA as a defendant filed a cross-claim against defendant Martinez, but it was void because not served on Martinez. On February 28, 1968, entry of judgment was made on APCA’s cross-claim against Martinez. Four years later, Martinez’ heirs moved to set aside the APCA judgment under Rule 60(b) and in December, 1972, the 1968 judgment was set aside because it was void. No time limit applies where a void judgment is entered. APCA did not appeal. The order entered was final and Martinez’ heirs were restored to the former position of Martinez — a cross-claim filed by APCA against Martinez.
On September 21, 1973, APCA filed a motion requesting permission to file an amended cross-claim and on January 10, 1977, the motion was granted.
On appeal, in discussing the effect of the order that vacated the void 1968 judgment, the court quoted from 7 Moore’s Federal Practice, ¶ 60.30[3] at page 431 (2d Ed. 1975). The pertinent part of the quotation is:
[W]here the order granting relief merely vacates the judgment and leaves the case pending for further determination, the order * * * is interlocutory and nonappealable. [Emphasis added.] [Id. 319, 573 P.2d 674.]
This quotation means that when a judgment is vacated, and the parties take no action thereon by appeal or otherwise, and simply leaves the case pending for further determination, the order is non-appealable and the Supreme Court does not have jurisdiction to hear the appeal. See United States v. Agne, 161 F.2d 331 (3d Cir. 1947), the case from which the rule was taken.
APCA does not stand for the proposition that an order vacating a judgment is not a final appealable order that does not affect the substantial rights of a party. The federal courts do not have an appealable provision like Rule 3(a)(3).
On March 1, 1977, this case stood with Jemez Properties’ complaint and Luceros’ answer, interrogatories propounded and answers and Jemez Properties’ right to file an amended complaint. On March 15, 1977 an amended complaint was filed by the Walsh-es and on April 13, 1977, the Luceros answered. On November 4, 1979, the Walshes filed a motion for summary judgment. On November 8, 1977, Walshes filed a request for admission of facts which was not answered. On November 15, 1977, an extended hearing was held on Walshes’ motion for summary judgment. Although the court stated that it would grant summary, summary judgment was not entered. Findings of fact and conclusions of law were filed and the court rendered its decision. Judgment was entered on the merits after “having heard the testimony of witnesses, considered the exhibits admitted, arguments of counsel * * * and the Court having made its Findings of Fact and Conclusions of Law.”
The appeal was taken from this judgment. The Luceros challenged Finding No. 1 that plaintiffs owned the land in the Canon de San Diego Grant; Findings Nos. 5, 6, 11-14, 20 — 21, amounting to a misrepresentation by defendants and a knowing wrongful occupation of the lands in question by defendants. Luceros also challenged Conclusions of Law Nos. 2, 3 and 7, that plaintiffs had superior title to the lands in question and that defendants had no color of title thereto.
There was sufficient evidence to support the findings of the trial court. The only question involved in this appeal is whether the trial court erred in awarding the Walsh-es $3,000.00 in attorney fees.
Aboud v. Adams, 84 N.M. 683, 691, 507 P.2d 430, 438 (1973) quoted the following with approval:
“In the absence of a statute or rule of court it cannot be said that attorney fees are such items as are properly taxed as costs, or may be considered as items recoverable as damages.”
The Walshes were not entitled to attorney fees.
The judgment below should be affirmed subject to the withdrawal of $3,000.00 as attorney fees.