Bearup v. Coffer
| Citation | 55 P. 289,9 N.M. 500,1898 -NMSC- 029 |
| Parties | BEARUP et ux. v. COFFER. |
| Decision Date | 19 December 1898 |
| Court | Supreme Court of New Mexico |
Syllabus by the Court.
Where a plaintiff makes the oath required by section 2893 of the Compiled Laws of 1897, after suit instituted, and prior to the time within which he is ruled to give security for costs it is error for the court to abate the cause for failure to give such security; the oath, standing in the stead of the cost bond, being sufficient answer to the rule.
Error to district court, Socorro county; before Justice H. B Hamilton.
Ejectment by D. E. Bearup and wife against John E. Coffer. There was a judgment for defendant, and plaintiffs bring error. Reversed.
H. M Dougherty, for plaintiffs in error.
S Alexander, for defendant in error.
This is an action in ejectment, brought by one Dennis E. Bearup and his wife, Maud Bearup, against John E. Coffer, for the recovery of certain mining grounds described in the declaration. The plaintiffs in error were duly ruled on the 28th day of January, 1897, which was during a regular term of the district court of the Fifth judicial district of the territory of New Mexico within and for the county of Socorro, to give a bond for costs in the sum of $500 in said cause, within 60 days from and after the date of said order. Thereafter, on March 6, 1897, there was made and entered in said district court an order extending the time to file bond for costs in this cause to the 1st day of April, 1897. On March 29, 1897, there was filed in the office of the clerk of said court by plaintiffs in error an affidavit of poverty, in conformity with the statute. On May 10, 1897, said court entered judgment abating said cause for failure to give bond for costs. On October 8, 1897, plaintiffs in error filed a motion to set aside the judgment of abatement. On November 10, 1897, the court overruled said motion; and on April 30, 1898, the cause was brought into this court by writ of error.
Each of the alleged errors complained of grows out of the court's ruling in sustaining the motion of defendant in error to abate the cause for failure of plaintiffs in error to give security for costs, and the adjudication of abatement of the cause. Where, as in this case, the record shows the making by plaintiffs in error, within the time by which they were ruled to give security for costs, of a sufficient oath that they were too poor to pay costs, the material question is whether or not such an oath is an answer to the rule. It is solvable by the construction of the statutes involved (sections 2892 and 2893 of the Compiled Laws of 1897, originally enacted as sections...
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