Lea County State Bank v. Mccaskey Register Co.

• Decision Date: 16 September 1935
• Docket Number: No. 4060.,4060.
• Parties: LEA COUNTY STATE BANKv.McCASKEY REGISTER CO.
• Court: New Mexico Supreme Court

39 N.M. 454

49 P.2d 577

LEA COUNTY STATE BANK

v.McCASKEY REGISTER CO.

No. 4060.

Supreme Court of New Mexico.

Sept. 16, 1935.Rehearing Denied Oct. 10, 1935.

Appeal from District Court, Lea County; McGhee, Judge.

Action by the Lea County State Bank against the McCaskey Register Company. From a judgment of the district court dismissing the defendant's appeal from a judgment for the plaintiff which had been entered in a justice of the peace court, defendant appeals.

Reversed and remanded with directions.

District court could release appellant from error or omissions in further perfecting appeal from judgment of justice's court after initial steps in perfecting appeal had been taken. Comp.St.1929, § 79-515.

O. E. Little, of Roswell, for appellant.

Tom W. Neal, of Lovington, for appellee.

BICKLEY, Justice.

This case originated in a justice of the peace court. Appellee was plaintiff and appellant was defendant. Trial was had on July 5, 1930, which resulted in judgment for appellee against appellant. No appeal from the judgment was taken within ten days “in the ordinary way.” On August 4, 1930, within thirty days from the rendition of the judgment, the defendant (appellant here) made out his petition in writing to the district court, said petition complying substantially with the requirements of section 79-515, Comp. St. 1929, which petition prayed the court: “To enter an order herein granting an appeal from the judgment in said cause, from the justice of the peace court, to this court, and that the defendant have all other and further relief to which it may be entitled.”

Upon the same day, District Judge Richardson made an order reciting the presentation of petition, finding “that an appeal should be granted the defendant” and ordered “that an appeal from said judgment be and that same is hereby granted to the defendant, and the Clerk of this Court is ordered to issue a Writ of Certiorari to the Justice of Peace of Precinct No. 8, of Lovington, New Mexico, to forthwith deposit a full transcript of the papers in this cause with said clerk, said writ to issue upon the filing of a sufficient bond to the defendant in the sum of $200.00 conditioned as provided by law.”

On the 6th day of September, 1930, an “appeal bond” was filed in the office of the clerk of the district court, approved as to form and sufficiency by the clerk of said court.

On the 25th day of October, 1930, there was filed in the office of said clerk what is designated as a transcript of the civil docket of the justice of the peace who tried the cause, attached to which was a certificate of the justice of the peace that the above and foregoing is a true and perfect copy of his civil docket in said cause, but no signature of the justice of the peace appears on said certificate. Accompanying said transcript of the civil docket were papers relating to the suit which included writ of garnishment, answer of defendant, and judgment rendered by the justice of the peace. On the 8th of June, 1932, there was filed in the office of the clerk what was designated as a special appearance and motion to dismiss cause, for want of jurisdiction of the district court to hear and determine the same, because there is no certified transcript of the proceedings in the justice court filed as required by law, and for other reasons. On the day following the filing of this motion, there was filed in the clerk's office an affidavit of Grace E. Beauchamp, deputy county clerk, setting forth that O. E. Little, attorney for defendant, requested her to issue certiorari to the justice of the peace to forthwith send up the full transcript, together with the papers in said cause, and also requested her to issue a summons notifying the plaintiff that an appeal had been taken and citing him to appear at the next term of district court to answer the same, and that it was her official duty to have said papers issued, but that through oversight she failed to do so. On the same day, there was filed in the clerk's office an affidavit of L. O. Tomlinson, which stated that he was the justice of the peace when O. E. Little, attorney for defendant in said cause, requested by petition the clerk of the district court to issue certiorari to forthwith send up the transcript, together with the papers in said cause, and “that he sent all the papers, which were in his possession at that time to said district clerk.” A few days later, Mr. Little, the attorney aforesaid, filed in the district court an affidavit of diligence. On the 15th day of June, 1932, Hon. George W. Hay, the judge of the sixth judicial district, sitting under order of the Chief Justice of the Supreme Court, as and for Hon. G. A. Richardson, judge of the fifth judicial district, caused to be entered an order embodying his ruling on the motion heretofore referred to, to dismiss the cause, Judge Hay found and concluded:

“That the Attorney for defendant made due and written request upon the Clerk of this court to issue the Writ of Certiorari, and Summons, as provided by law, and that the same be served upon the Justice of the Peace and the plaintiff respectively as provided by law; that it was no fault nor negligence on the part of the defendant nor its Attorney that caused the said Writ and Summons not to be issued and served as provided by law, but that the same was an oversight of the Clerk of this court; that notwithstanding the failure to issue the Writ, the said Justice of the Peace was notified of the Appeal and requested to file a Certified Transcript and that a transcript as provided by law was filed and the Certificate attached thereto, but that said Certificate of the Justice of the Peace was not signed by him; that the affidavit of said Justice of the Peace, same being legally subscribed and sworn to, shows that all available papers and the transcript of this record have been filed with the clerk of this Court; that the plaintiff, through its Attorney, had actual knowledge of the Appeal and that its rights in the matter have not been in any way prejudiced by the failure to serve Summons upon the plaintiff, and that a Summons has now been issued by the Clerk of this court in this cause, citing the plaintiff to appear in this court; that the same should be now served upon the plaintiff; that the transcript filed by the said Justice of the Peace with the Clerk of this court, is sufficient as a transcript in this case and that the plaintiff's Motion to Dismiss this cause is not well taken and should be overruled.

“It is therefore ordered by the court that the plaintiff's Motion to Dismiss this cause be, and the same is hereby overruled, and the Summons heretofore issued in this cause may be served upon the plaintiff.”

On February 2, 1933, there was filed in the office of the clerk of the district court plaintiff's second motion to dismiss for want of jurisdiction of the district court, because (a) there was no certified transcript of the proceedings in the justice court filed as required by law; (b) that the transcript which has been filed in this case was not filed in answer to a writ of certiorari; (c) that no writ of certiorari has ever been issued in this cause and none has ever been served on the justice of the peace; and (d) that no notice of appeal was served on plaintiff or its counsel before one term of court had passed.

When the last-mentioned motion came on for hearing before Hon. James B. McGhee, judge of the fifth judicial district, the court overruled the motion and proceeded with the trial de novo. When the plaintiff rested its case, the defendant moved for judgment and this precipitated further consideration by the court of the motion to dismiss, the court taking the matter under advisement and later filed his memorandum opinion reaching the conclusion that the motion to dismiss should be sustained, and subsequently entered an order reciting: “That on account of the failure of the Clerk of this court to issue a writ of certiorari, and consequent failure of the Justice of the Peace to make return thereto and file a duly authenticated transcript of the proceedings alleged to have been held by the Justice Court of Precinct No. 8, that this court has not acquired, and does not now have jurisdiction to hear and determine any matters in this cause, save and except the defendant has not caused a writ of certiorari to issue and the proper transcript to be filed.”

Thus we have for determination the clear-cut question: “What is the basis of the jurisdiction of the district court under statutes providing for a transfer of a cause (determined in the justice of the peace court) for trial de novo?”

[1] It is generally and uniformly stated that jurisdiction attaches in the superior court to which the cause is removed when an appeal is perfected. The divergence of opinion arises over what steps are necessary to perfect the appeal. Appellee says that the appeal is not perfected until “the full transcript, together with the papers in the cause,” are filed in the office of the clerk of the district court.

Appellant says the appeal is perfected when it has been granted or allowed pursuant to petition therefor and the filing and approval of the appeal bond. We are in agreement with appellant's contention.

Since one district judge found the transcript sufficient on motion and the judge who tried the case and the parties seem to have regarded it sufficient in fact, we will assume that the recital in the order that the defendant had not caused “the proper transcript to be filed” means that it was irregularly filed because, as contended by movant, “the transcript which has been filed in this case was not filed in answer to a writ of certiorari,” and that: “No writ of certiorari has ever been issued in this cause and none has ever been served on the justice of the peace.”

Article 6, § 27, Constitution, declares: “Appeals shall be allowed in all cases from the final judgments and decisions of the probate courts...