Crabtree v. Bd. of Com'rs of Socorro County, 3869.

• Decision Date: 23 January 1933
• Docket Number: No. 3869.,3869.
• Citation: 18 P.2d 657,37 N.M. 80
• Parties: CRABTREEv.BOARD OF COM'RS OF SOCORRO COUNTY et al.
• Court: New Mexico Supreme Court

37 N.M. 80

18 P.2d 657

CRABTREE

v.BOARD OF COM'RS OF SOCORRO COUNTY et al.

No. 3869.

Supreme Court of New Mexico.

Jan. 23, 1933.

Syllabus by the Court.

The notice of intention to take an appeal sought within twenty days of time limit therefor, prescribed by section 2 of Rule V, Rules of Appellate Procedure, held not jurisdictional, and motion to dismiss for want of such notice will be denied under authority of section 3 of Rule XIV, where prejudice is neither shown nor claimed.

Appeal from District Court, Socorro County; Owen, Judge.

Action by William D. Crabtree against the Board of Commissioners of Socorro County and others. From the judgment, plaintiff appeals. On motion to dismiss the appeal.

Motion denied.

Preliminary notice of intention required for appeal taken within twenty days of time limit therefor held not jurisdictional, and failure to give preliminary notice was not ground for dismissing appeal, where no prejudice was shown. Rules of Appellate Procedure, Rule 5, § 2; Rule 14, § 3.

James G. Fitch, of Socorro, C. M. Botts, of Albuquerque, and John F. Simms, of Albuquerque, for appellant.

George S. Downer, of Albuquerque, for appellees.

SADLER, J.

The case is before us on appellee's motion to dismiss appeal.

The appellant applied for his appeal within twenty days of the expiration of the six-month period allowed for making such application, but failed to give notice of his intention so to do as required by section 2 of rule V, Rules of Appellate Procedure. Within five days after taking such appeal, appellant's attorney served upon appellee's counsel the notice prescribed by section 2 of rule V, supra, to the effect that an appeal had been taken. After expiration of the six-month period for taking an appeal, the court sustained a motion by appellee to set aside the order allowing appeal, basing its action upon the fact that notice of intention to apply therefor had not been given as required by the above-mentioned rule.

Section 2 of rule V, relied upon by appellee, reads as follows: “Within five days after taking an appeal, the appellant shall give written notice thereof to the attorney of record of the opposite party or parties. Proof of service of such notice shall be filed and shall be a part of the record proper. Provided; that an appeal, applied for less than twenty days before the expiration of the statutory time prescribed for taking appeals, shall be allowed only on proof of service upon the attorney of record of the opposite party or parties of notice of intention to apply for such appeal.”

We have heretofore held, in Conley v. Davidson, 34 N. M. 421, 283 P. 52, and Robinson v. T. D. Neal Mercantile Company, 34 N. M. 436, 283 P. 52, that failure to notify within five days after taking appeal that an appeal had been taken is not jurisdictional, and that, where no showing of prejudice is made, a motion to dismiss should be overruled under the authority of section 3 of rule XIV. The last-mentioned rule provides: “No motion to dismiss an appeal or writ of error, strike a bill of exceptions or otherwise dispose of any cause except upon its merits, where such motion is based upon other than jurisdictional grounds, will be granted except upon a showing, satisfactory to the court, of prejudice to the moving party, or that the ends of justice require the granting thereof. No such motion will be entertained unless filed before the movant has filed his brief on the merits.”

The jurisdictional character of the notice here involved is therefore immediately presented. If jurisdictional section 3 of rule XIV is without application, we have no discretion to waive it, and the motion to dismiss must be sustained. If directory, we may exercise our discretion to excuse it. In determining its character, we may look to its purpose. Primarily, the office of the notice is to advise an adversary of the appeal at a time when he himself may, if he so elects, by cross-appeal review any unfavorable portions of the judgment assailed.

It sometimes happens that a judgment or decree is not in its entirety favorable to the party who has chiefly prevailed. Nevertheless be may he quite content to accept the judgment as it stands, provided no review is sought by his adversary. Under the practice prevailing before adoption of this rule, by waiting until the last day or near thereunto to take his appeal, an appellant more often than otherwise would deny to his adversary the right to prosecute a cross-appeal, since notice of it would not be brought home to the latter before the time to appeal had expired. A compliance with this rule prevents such prejudice or unfairness. The rule is salutary, and should be scrupulously observed.

Nevertheless,...