IRVIN LEE SMITH, APPELLANT,
v.
MR. DAVE SERNA, DISTRICT ATTORNEY, MR. SHELLY, FORMER SHERIFF OF GRANT COUNTY, MR. LUCERO, THE ARRESTING OFFICER, MR. K. MYERS, FORMER UNDER-SHERIFF, MR. SHELLY, FORMER DEPUTY SHERIFF, APPELLEES
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The appeal must be dismissed for lack of a final judgment because only the complaint, not the action, was dismissed.
Plaintiff sued law enforcement officials for false arrest and imprisonment. The trial court dismissed the complaint but not the action. Plaintiff appe…
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PER CURIAM.
Smith brought this civil action against several New Mexico law enforcement officials, alleging damages arising out of false arrest and imprisonment. The complaint was dismissed for failure to state a claim upon which relief could be granted. Smith thereupon appealed.
The appeal clearly must be dismissed for lack of a final judgment. It was not the action, but merely the complaint which was dismissed. In Garrison v. Lacey, 10 Cir., 362 F. 2d 798, 799, this court stated:
“The hazards which beset a layman when he seeks to represent himself are illustrated by this appeal. The record contains no final judgment. The order sought to be reviewed dismissed the complaint but did not dismiss the action. Hence it is nonappealable. See Midwestern Developments, Inc. v. City of Tulsa, Oklahoma, 10 Cir., 319 F. 2d 53, certiorari denied 379 U.S. 989, 85 S.Ct. 702, 13 L.Ed.2d 610. * * * ”
See, also, Martinez v. Flores, 9 Cir., 299 F. 2d 888, and cases therein cited.
The appeal is dismissed.
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Budde v. Ling-Temco-Vought, Inc., 511 F.2d 1033 (10th Cir. 1975)
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Korgich v. Regents OF the NEW Mexico Sch. OF Mines, 582 F.2d 549 (10th Cir. 1978)
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Coffee Cnty. v. City of Tullahoma, 379 U.S. 989 (U.S. 1965)
- Guiberson Corp. v. Webber, 379 U.S. 989 (U.S. 1965)
- Midwestern Developments, Inc. v. The City OF Tulsa, 319 F.2d 53 (10th Cir. 1963)
- Garrison v. Lacey, 362 F.2d 798 (10th Cir. 1966)
- Martinez v. Flores, 299 F.2d 888 (9th Cir. 1961)