Reger Ex Rel. Reger v. Preston

WOOD, Judge, Court of Appeals

(dissenting) .

Section 21-1-1(41) (e), N.M.S.A.1953, does not state that only matters in the court file are to be considered in ruling on a motion to dismiss. Whether the party opposing the motion claims inability to comply (the negative aspect, see Ringle Development Corp. v. Chavez, 51 N.M. 156, 180 P.2d 790) or diligence that is compliance (the positive aspect, see Featherstone v. Hanson, 65 N.M. 398, 338 P.2d 298), the motion is to be decided on the basis of what is “made to appear” to the trial court.

How is anything “made to appear” to the trial court? By…