Abeytia v. Interveners)
| Decision Date | 08 September 1915 |
| Docket Number | No. 1832.,1832. |
| Citation | 20 N.M. 614,151 P. 696 |
| Parties | ABEYTIA ET AL.v.SPIEGELBERG ET AL. (CATRON ET AL. INTERVENERS). |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
A cost bond, on appeal, under the statutes of this state, is not essential to the jurisdiction of the Supreme Court, and a failure to file the same, as required by the statute, may be waived.
Upon the allowance of an appeal to the Supreme Court by the district court, the case is, in contemplation of law, pending in the Supreme Court, and jurisdiction is transferred from the district court to the Supreme Court, and a motion to dismiss the appeal cannot properly be filed with the clerk of the district court.
Where an appellant fails to file a cost bond within 30 days, as required by the statute, appellee, if he desires to take advantage of the default, should file with the clerk of this court a transcript of so much of the record of the trial court as is necessary to show that a final judgment in the cause was rendered, that an appeal therefrom was allowed, and a certificate of the clerk of the district court that no cost bond has been filed, together with a motion, directed to this court, asking that the appeal be docketed and dismissed because of such default.
Appeal from District Court, Santa Fé County; E. C. Abbott, Judge.
Action by Aniceto Abeytia and others against Willie Spiegelberg and others, wherein T. B. Catron and others intervened. From a judgment for plaintiffs, defendants and interveners appeal. Appeal dismissed.
Upon the allowance of an appeal to the Supreme Court by the district court, the case is, in contemplation of law, pending in the Supreme Court, and jurisdiction is transferred from the district court to the Supreme Court, and a motion to dismiss the appeal cannot properly be filed with the clerk of the district court.
Catron & Catron, of Santa Fé, for appellants.
N. B. Laughlin and Renehan & Wright, all of Santa Fé, for appellees.
On the 26th day of March, 1915, an order was entered in the district court of Santa Fé county, granting appellants an appeal from a judgment and decree in partition, theretofore entered in said court. Appellants failed to file a cost bond within 30 days, as directed by the statute, or a supersedeas bond within 60 days, as authorized by the statute. On the 10th day of June, more than 70 days after the appeal had been allowed, no cost bond having been filed, appellees appeared in the district court and filed a paper, denominated a “motion,” in which they set forth the date of the allowance of the appeal, the fact that no cost bond or supersedeas bond had been filed, and asked that the appeal in the district court, or in the proper court, should be “annulled, avoided, and held for naught.” Later appellants applied to the district court for an order extending their time within which to “settle and sign the bill of exceptions.” Appellees appeared and objected to the court enlarging the time, on the ground that no cost bond or supersedeas bond had been filed. The court entered an order extending the time for 60 days within which to have the bill of exceptions settled and signed. Thereafter appellants filed the cost bond. Upon the expiration of 130 days from the entry of the order allowing the appeal, appellees filed in this court a skeleton transcript of the record, showing the judgment from which the appeal was taken, the order allowing the appeal, the motion of appellees to annul, avoid, and hold for naught the appeal, and the subsequent steps taken by the parties in the district court, together with a motion to docket and affirm the cause. Upon the hearing of the motion appellants filed a motion to docket the appeal and dismiss the same.
[1] This court has held (Canavan v. Canavan, 18 N. M. 468, 138 Pac. 200) that the giving of a cost bond is not essential to the jurisdiction of the appellate court, under our statute, and that it is required only for the protection of the appellee, or defendant in error, and may be waived. Failure to file the cost bond, within the time required, must be taken advantage of before the default is cured; otherwise, a motion to dismiss, on this ground, will not prevail. Appellees here argue, however, that they attempted to take advantage of the default, and filed in the only court which could receive a paper for filing in the cause their objections to the default. Whether they did so depends upon which court had jurisdiction of the cause, upon the allowance of the appeal. If it be conceded that the...
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State v. McClaugherty, 24,409.
...of the Supreme Court attached "upon the allowance of the appeal or the issuance of the writ of error"); Abeytia v. Spiegelberg, 20 N.M. 614, 617, 151 P. 696, 697 (1915) (stating that the Supreme Court had jurisdiction of the cause upon the allowance of the appeal, the procedure at that time......
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FAIRCHILD v. UNITED Serv. Corp.
...in this case.' Blackburn v. Knight, 81 Tex. 326, 16 S.W. 1075, 1078. But it is argued that the question was decided in Abeytia v. Spiegelberg, 20 N.M. 614, 151 P. 696, 697. In that case appellee moved in the district court for a dismissal of the appeal seventy days after it was granted. We ......
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State v. White
...except for the purpose of perfecting the appeal to this court. In contemplation of law it was pending here.' See, also, Abeytia v. Spiegelberg, 20 N.M. 614, 151 P. 696; and Pankey v. Hot Springs National Bank, 42 N.M. 674, 84 P.2d 649. Compare Damon v. Carmean, 44 N.M. 458, 104 P.2d The rul......
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Cook v. Mills Ranch-Resort Co.
...N. M. 503, 131 P. 493, Ann. Cas. 1915B, 1064; Id., 18 N. M. 468, 138 P. 200; Mundy v. Irwin, 19 N. M. 170, 141 P. 877; Abeytia v. Spiegelberg, 20 N. M. 614, 151 P. 696; Hubert v. American Surety Co., 25 N. M. 131, 177 P. 889. It is true that the appeal by a party aggrieved is a matter of ri......