Clark v. Rosenwald

• Decision Date: 14 October 1924
• Docket Number: Nos. 2934, 2935.,s. 2934, 2935.
• Citation: 30 N.M. 175,230 P. 378
• Parties: CLARKv.ROSENWALD et al.
• Court: New Mexico Supreme Court

30 N.M. 175

230 P. 378

CLARK

v.ROSENWALD et al.

Nos. 2934, 2935.

Supreme Court of New Mexico.

Oct. 14, 1924.

Syllabus by the Court.

Where an appellant or plaintiff in error fails to make all interested parties in the court below parties to the appeal or writ of error, neither the parties to the appeal or writ of error, nor the parties omitted from the appeal or writ of error, can, by petition, motion, or otherwise, be made parties to the cause in the Supreme Court after the time within which an appeal may be prosecuted from the judgment in the court below has expired.

Appeal from District Court, San Miguel County; Leahy, Judge.

Suit by Lucian Rosenwald and another against the Rosenwald Realty Company, in which John S. Clark, as trustee in bankruptcy of the estates of E. Rosenwald & Son, and others, intervened. Petition of intervention and answers stricken, judgment for plaintiff, and the intervener brings error. On objections to petition of the Rosenwald Realty Company, original defendant in writ, to be joined as party plaintiff in such writ of error, and on motion of plaintiff in error that such company be compelled to become defendant to such writ. Petition dismissed, and motion overruled.

Where an appellant or plaintiff in error fails to make all interested parties in the court below parties to the appeal or writ of error, neither the parties to the appeal or writ of error nor the parties omitted from the appeal or writ of error, can, by petition, motion, or otherwise, be made parties to the cause in the Supreme Court after the time which an appeal may be prosecuted from the judgment in the court below has expired.

C. W. G. Ward, of East Las Vegas, for plaintiff in error.

C. J. Roberts, of Santa Fé, for defendants in error.

FORT, J.

A draft of this opinion, substantially in the following form, was prepared by Mr. Justice BRATTON prior to his resignation, and delivered to the undersigned, to be presented to the court after suggested corrections were made. Having been so submitted and duly adopted by the court, it is herewith set forth as follows:

Lucian Rosenwald and Emma Rosenwald instituted a suit against the Rosenwald Realty Company to recover a personal judgment upon several promissory notes. John S. Clark, as trustee in bankruptcy of the estates of E. Rosenwald & Son, Cecilio Rosenwald, Gilbert E. Rosenwald, and David E. Rosenwald, intervened and pleaded certain defenses to each and all of said notes. On August 18, 1923, his petition in intervention and the answers filed by him were stricken from the files. On September 1, 1923, a judgment by default, dated August 19th, was filed. On February 15, 1924, John S. Clark, trustee as aforesaid, filed his application for a writ of error to review such judgment. The writ immediately issued. On May 12, 1924, Rosenwald Realty Company, the original defendant in the suit, filed its petition for leave to join as a party plaintiff in such writ of error, and on June 5, 1924, the plaintiff in error filed a motion that the Rosenwald Realty Company be compelled to become a party defendant to such writ. Objections to the petition and the motion were filed, upon the ground, among others, that the time for appeal had expired before these proceedings were instituted in this court, and the case is before us upon the issues thus raised.

1. It is apparent that the petition of the Rosenwald Realty Company to become a party plaintiff in error, and the motion of the plaintiff in error that it be compelled to become a party defendant in error, were both filed after the time allowed by law within which a writ of error could have been sued out, or an appeal have been taken. Section 1, c. 43, Laws 1917. The question presented is whether or not omitted parties may be brought before the court by either of these methods after the time allowed by law for suing out a writ of error from the judgment in the district court has expired. Plaintiff in error, in support of his right to have new parties made in the Supreme Court, upon the petition and motion filed herein, relies upon section 14, c. 43, Laws 1917, which provides:

“Persons may be substituted as parties or compelled to become parties in cases pending in the Supreme Court in like time and manner, and with like effect, as provided for in original suits in district courts.”

Three cases were discussed in the argument in this court upon the question now under consideration, and in support of the contention of plaintiff in error. Watters v. Treasure Mining Co. et al., 21 N. M. 275, 153 P. 615, Baca v. Board of Commissioners, 21 N. M. 713, 158 P. 642, and Baca v. Coury, 27 N. M. 275, 199 P. 1015. It was conceded that in the Baca Case the application to...