138 P. 264 (N.M. 1914), M. J. Faggard & Co. v. Cunningham

• Citation: 138 P. 264, 18 N.M. 510, 1914 -NMSC- 008
• Opinion Judge: ROBERTS, C.J.
• Party Name: M. J. FAGGARD & CO. v. CUNNINGHAM.
• Attorney: Geo. L. Reese, of Portales, for appellant. T. E. Mears, of Portales, for appellee.
• Judge Panel: HANNA and PARKER, JJ., concur.
• Case Date: January 10, 1914
• Court: Supreme Court of New Mexico

Page 264

138 P. 264 (N.M. 1914)

18 N.M. 510, 1914 -NMSC- 008

M. J. FAGGARD & CO.

v.

CUNNINGHAM.

Supreme Court of New Mexico

January 10, 1914

Syllabus by the Court.

Under sections 3305 and 3366, Comp. Laws 1897, a defendant may appeal from a default judgment rendered and entered against him by a justice of the peace.

Appeal from District Court, Roosevelt County; McClure, Judge.

Action by M. J. Faggard & Co. against Mrs. C. Cunningham. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Geo. L. Reese, of Portales, for appellant.

T. E. Mears, of Portales, for appellee.

ROBERTS, C.J.

A default judgment was entered against appellant by a justice of the peace in precinct No. 1, Roosevelt county, from which he appealed to the district court. In that court a motion was interposed to dismiss the appeal upon the ground that no appeal could be taken from a default judgment entered by a justice of the peace, which was sustained. The sustaining of this motion presents the only question for review.

Section 3305, C. L. 1897, provides: "Any person aggrieved by any judgment rendered by any justice," of the peace, "may appeal by himself, his agent or attorney to the district court of the county where the same was rendered," etc.

While section 3365 reads: "In all cases before a justice of the peace in which judgment shall be rendered against any party, either party may take his appeal to the district court."

The above sections, it will be observed, confer the right of appeal upon "any person aggrieved" by any judgment, and the right is extended to "all cases." This being true, a defendant would have the right to appeal from a default judgment, unless some other sections of the statute expressly or impliedly denies the right. Appellee has not called our attention to any provision of the statute in any way limiting or restricting the above sections in this regard. Under section 3317, all cases appealed to the district court are tried de novo. "A statute allowing an appeal from 'all final judgments' includes and authorizes an appeal from a judgment by default." 6 Ency. Pl. & Pr. 227.

Section 3305, supra, was construed by the territorial Supreme Court in the case of Douthitt v. Bailey, 14 N.M. 530, 99 P. 342. The court say: "There is no restriction as to what cases can be appealed; the statute is mandatory...