Armijo v. Abeytia

• Decision Date: 31 January 1891
• Citation: 25 P. 777,5 N.M. 533
• Parties: ARMIJO et al.v.ABEYTIA et al.
• Court: New Mexico Supreme Court

5 N.M. 533

25 P. 777

ARMIJO et al.

v.ABEYTIA et al.

Supreme Court of the Territory of New Mexico.

Jan. Term, 1891.

Appeal from district court, Bernalillo county.

Where a contract provides that property bailed “is to be considered the same as money received,” a right of action for its value arises immediately upon the breach, and plaintiffs cannot recover rent also for the time after such breach.

William B. Childers, for appellants.

Neill B. Field, for appellees.

SEEDS, J.

The abstract of the record in this case was filed in the supreme court upon January ___, 1889, being only ___ days before the first day of the January term of that year. The appellants failed to deliver to the attorney of the appellees two copies of the transcript 10 days before the first day of the term, as required by rule 23 of the rules of the supreme court. The first day of the 1889 term fell upon January 7th. Upon the 5th day of January, 1889, the appellees gave notice to the appellants that they would upon January 8th, being the second day of the term, move the court to strike the case from the docket, and affirm the judgment of the district court. They filed their affidavit and motion, in accordance with that notice, upon January 8, 1889. The motion of the appellees was predicated upon two grounds, viz.: (1) “Because you did not, at least ten days before the first day of the January term, 1889, of said supreme court, file in the office of the clerk of said court a complete transcript of the record and proceedings in said cause.” (2) “Because you did not, a least ten days before the first day of the said term of said supreme court, deliver to Neill B. Field, the attorney for the appellees, two printed copies of the transcript of the record in said cause.” Counsel for appellees strenuously contends for the rights of his clients under this motion; and as the questions therein raised, if now decided, may definitely settle a matter of procedure, the motion will be considered with some thoroughness.

The two grounds of the motion involve the construction of a section of the Compiled Laws of New Mexico of 1884, (section 2189,) and also of a rule of the supreme court, (No. 23.) Section 2189 provides substantially as follows: The appellant shall file in the supreme court, at least 10 days before the first day of such court to which the appeal is returnable, a perfect transcript of the record and proceedings in the case. If he fail to do so, the appellee may produce in court such transcript; and, if it appears thereby that an appeal has been allowed in the cause, the court shall affirm the judgment, unless good cause shall be shown to the contrary. The facts show that the record was not filed as herein contemplated, but it was filed some ___ days before the first day of the term, and before the appellee filed his motion to affirm the judgment. Is the motion, upon this ground, well taken?

1. The object of the statute is, undoubtedly, to assure promptness in obtaining the decision of the appellate court, in order that the successful litigant in the nisi prius court, if rightfully entitled to his judgment or decree, may not, by negligence or willful dereliction on the part of the appellant, be deprived of his rights. However, it is evident that the enforcement of the appellee's rights under this statute, in the first instance, depends upon his own action. The appellant is prima facie negligent, and loses his right to prosecute his appeal, when less than 10 days remain before the first day of the term, and the transcript is not filed. Then is the time for the appellee to move; for immediately, in contemplation of law, his rights are infringed. He then has a duty to perform,-a duty just as imperative as the previous duty of the appellant, -and that is to produce in court the transcript, and move to affirm the judgment. If he fails to do so, but allows the appellant to file the transcript, the presumption certainly arises that, as he has not moved before, he does not consider his rights interfered with. The appellee contends that it would be a useless and vain thing for him, after the appellant had filed the transcript, to also file a transcript, and then move to affirm the judgment; that the appellant's is sufficient. True, it would be useless and vain; but the error of the learned counsel is in assuming that, immediately upon the closing of the 10 days without appellant's filing the record, he has an absolute right to have the judgment affirmed. If he fails to act with promptness, he may in effect extend the day of grace to his adversary, who may take advantage of it, as in this case. While such statutes should not be so interpreted as to render them easy of evasion, and of no practical value, at the same time they should have some flexibleness, so that they may not be oppressive. This holding is not without the support of respectable authorities. Rule 9 of the supreme court of the United States is essentially the same as the statute under consideration; and that court has held that it does not consider the rule as applying where the transcript has been filed by the appellant before the motion to dismiss. Bingham v. Morris, 7 Cranch, 99; Owings v. Tiernan, 10 Pet. 24; Sparrow v. Strong, 3 Wall. 103; Evans v. Bank, 134 U. S. 330, 10 Sup. Ct. Rep. 493.

2. The second ground of the appellee's motion is based upon a portion of rule 23 of the rules of the supreme court, which reads as follows: “And he [the appellant] shall also deliver to the attorney of the adverse party, at least ten days before the first day of the term, two printed copies of said transcript of record. *** In case the appellant or plaintiff in error neglects to furnish to the adverse party the said number of copies of the transcript of record, the latter shall be entitled to move, on affidavit and twenty-four hours' notice of motion, on the second day of the term, that the cause be stricken from the docket, and the judgment appealed from be affirmed, or the appeal dismissed.” It will be noticed that, as to this rule, the day upon which the motion can be filed is fixed,-the second; that it is based upon affidavit and notice of the motion to the appellant 24 hours before its being filed. While the rule contemplates that these copies should be delivered 10 days before the first day, yet it would seem that the delay would not be fatal, if delivered before the filing of the motion; for the rule says, “in case the appellant neglects to furnish,” etc., not “neglects to furnish ten days before,” etc. But in this case the appellants have neglected to furnish the copies in accordance with the rule, and the appellees have in every particular complied with the requirements as to filing their motion for dismissal. While there is no direct adjudication in the reported cases of the territory upon this rule, yet there are negative expressions in a number of cases which plainly indicate the opinion of the supreme court upon it. In Evans v. Baggs, 4 N. M. 147, 13 Pac. Rep. 207, the court says: “When it is desired to strike out records under this rule, all the requirements of the rule must be complied with. The motion must be filed upon the second day of the term, supported by affidavit; and notice must be served upon appellant or his counsel, twenty-four hours previous to the filing of the motion, that it will be filed, and upon what ground it is based.” See, also, Mora v. Schick, 4 N. M. 158, 13 Pac. Rep. 341. The motion under consideration, as to its second ground, fully complied with the rule as interpreted by this court in the above citation. It would seem, therefore, that the motion as to the second ground was well taken, and should be sustained. However, there is another phase of this motion which requires attention. The statute (section 2189) says, among other things, that “the court shall affirm the judgment unless good cause shall be shown to the contrary.” The appellant's counsel filed an affidavit in this court alleging that his client was a poor man, and was not able to obtain the money with which to procure a transcript of record of the case until after the time for filing it in the clerk's office had expired. Was this such good cause shown as to take the case out of the statutes? It is not the duty of the attorney to furnish the means for his client. The fact that a man is poor is not, as a general rule, a reason why he should be shown any more leniency than a prosperous person. At the same time, where a man is poor, and makes a laudable effort to protect his rights, and is temporarily embarrassed, he should not be denied the merciful provisions of the law, when by granting it the adversary is in no worse position than he would have been if the unfortunate litigant had been able to do certain acts a few days earlier. It is true that the affiant has not said that his client used due diligence, commensurate with his circumstances, to procure the needed money; but, as the record shows that the transcript was filed five days before the first of the term, the presumption here would certainly be that he had made diligent effort. Of course, as his transcript was in time any way, under the construction heretofore given to the statute, the question is only material upon the second ground. Are we justified in making any exceptions to rule 23? It is conceivable that, if we are not, the righteousness of the statute in its desire to save the rights of those who have failed to file the transcript, but could not do so, in time, though for “a good cause,” would be nullified. Suppose a transcript was procured, but before it was filed, through no fault whatever of the appellant, it was burned or stolen; that with all possible celerity it would be impracticable to obtain a new one and file it before the third day of the term. Now, clearly, this would be “a good cause,” under the statute, to interfere in behalf of the appellant; but, if the court has no power to relax the...