Collins v. Heirs

• Decision Date: 25 June 1921
• Docket Number: No. 2596.,2596.
• Citation: 27 N.M. 222,199 P. 362
• Parties: COLLINSv.UNKNOWN HEIRS ET AL.
• Court: New Mexico Supreme Court

27 N.M. 222

199 P. 362

COLLINS

v.UNKNOWN HEIRS ET AL.

No. 2596.

Supreme Court of New Mexico.

June 25, 1921.

Syllabus by the Court.

A motion to dismiss a writ of error or appeal for failure to file a transcript of record or assignments of error within the time required by statute, not made until after the appellant or plaintiff in error has cured the default, will be denied.

Where an appellant files a motion for extension of time within which to file assignments of error before appellee has taken advantage of the default, such motion has the effect of curing the default if granted by this court.

An extension of time granted by the trial court for settling and signing the bill of exceptions automatically extends the return day for the appeal or writ of error to 10 days beyond such extended time.

The trial court may grant a second extension of time within which to settle and sign the bill of exceptions, where a præcipe for the record has been filed within the time limited by the statute.

Appeal from District Court, Sandoval County; Hickey, Judge.

Action by A. E. Collins against the Unknown Heirs and others. Judgment for plaintiff, and defendants appeal. Motion to dismiss appeal and affirm judgment denied.

The trial court may grant a second extension of time within which to settle and sign the bill of exceptions, where a praecipe for the record has been filed within the time limited by the statute.

Simms & Botts, of Albuquerque, and M. C. De Baca, of Bernalillo, for appellants.

H. B. Jamison, of Albuquerque, for appellee.

ROBERTS, C. J.

Appellee has filed a motion to dismiss the appeal and affirm the judgment in this cause. A statement of the facts first upon which the motion is based will lead to a better understanding of the motion.

The appeal was taken July 15, 1920; cost bond was filed and approved, and præcipe for the record was filed, all within the statutory time. On September 17, 1920, a motion was filed for additional time to have bill of exceptions settled, signed, and filed. This motion was granted on September 25, and the time was extended for 90 days. The effect of this order was to extend the time for settling and signing the bill of exceptions to January 11, 1921. On December 31, 1920, a motion for further additional time to have bill of exceptions settled, signed, and filed was filed, but the motion was not acted upon until January 26, at which time an order was entered, granting the additional time requested and extending the return day until March 12. The transcript of record was filed in this court within the extended time, and on March 14 appellee filed a motion, requesting the court to grant them two weeks additional time within which to file assignments of error. On March 16 appellee filed this motion to dismiss the appeal and affirm the judgment because (1) assignments of error had not been filed within the time required by the statute; and (2) because the original return day of the appeal had never been extended by the trial court; and (3) because the court was without power to grant the second extension.

[1] It has been frequently decided by this court that a motion to dismiss a writ of error or appeal for failure to file a transcript or assignments of error within the time required by statute, not made until after the appellant or plaintiff in error has cured the default, will be denied. Armijo v. Abeytia, 5 N. M. 533, 25 Pac. 777; Sacramento Valley Irrigation Co. v. Lee, 15 N. M. 567, 113 Pac. 834; Eagle M. Co. v. Lund, 15 N. M. 696, 113 Pac. 840; Gauss-Langenberg Hat Co. v. Raton National Bank, 17 N. M. 233, 124 Pac. 794.

[2] When appellant filed its notion for extension of time within which to file assignments of error before appellee had taken advantage of its default, such motion had the effect of curing the default, if granted by this court. It has been the uniform practice to grant such a request for extension of time where any reasonable showing is made of necessity...