Douthitt v. Bailey
| Decision Date | 02 September 1908 |
| Citation | 99 P. 342,14 N.M. 530,1908 -NMSC- 026 |
| Parties | DOUTHITT v. BAILEY. |
| Court | New Mexico Supreme Court |
Rehearing Denied Jan. 12, 1909.
Syllabus by the Court.
A justice of the peace who refuses to allow an appeal, when a good and sufficient bond is tendered, even when the person desiring to take the appeal had pleaded guilty before him may be sued under section 3308, Comp. Laws 1897, for the refusal to grant the appeal, and the penalty described in that section may be recovered from him.
[Ed Note.-For other cases, see Justices of the Peace, Cent. Dig § 45; Dec. Dig. § 27. [*]]
A justice of the peace who sits in a case in which he has not jurisdiction, or who exceeds his jurisdiction, cannot justify his refusal to grant an appeal, when a proper bond is tendered, on the ground that he had no jurisdiction to hear and determine the case.
[Ed Note.-For other cases, see Justices of the Peace, Cent. Dig § 45; Dec. Dig. § 27. [*]]
Appeal from District Court, Chaves County; before Justice Wm. H. Pope.
Action by Elgin Douthitt, by next friend, Thomas J. Douthitt, against Joshua B. Bailey, under Comp. Laws 1897, § 3308, for a refusal by Bailey, as a justice of the peace, to grant an appeal. Judgment for plaintiff, and defendant appeals. Affirmed.
Elgin Douthitt, a minor, was arrested on the charge of having put staples into the well of J. A. Browning, so that the pump in said well would not work. He was arrested on a warrant issued by the appellant, Joshua B. Bailey, a justice of the peace for precinct No. 2 of Chaves county, and was brought before the said justice for trial. On being arraigned he pleaded guilty, and was fined by the said justice in the sum of $50 and was sentenced to jail for the period of three months. From this judgment of the justice of the peace appellee prayed an appeal to the district court of Chaves county, and presented a bond, but the appeal was denied, and the appellee was committed to the jail of Chaves county to serve out the sentence which had been imposed. Afterwards application was made to the presiding judge of the district court of Chaves county, who granted an appeal. What became of the case on the appeal is not shown in the record, nor is it material to the determination of this case. Appellee brought suit against the justice of the peace, under section 3308, Comp. Laws 1897, for the refusal to grant the appeal, and recovered judgment for the sum of $200, from which judgment this appeal is taken.
J. M. Hervey, for appellant.
U. S. Bateman and D. C. Griffith, for appellee.
MILLS C.J.
We regret that the attorneys for the appellee did not file a brief in this case, as it would have saved this court a considerable amount of labor in looking up the law which is applicable to it. We have, however, endeavored to ascertain the law of the case; and, if our opinion is not as exhaustive as it might be, it is owing to the lack of time which has been at our disposal. This suit was brought under section 3308, Comp. Laws 1897, which reads as follows, to wit: "If any justice of the peace shall wrongfully refuse to allow an appeal in any case where an appeal is now or may hereafter be permitted by law, or shall demand from any person the payment of any sum of money as a condition precedent to the granting of such appeal, or to the approval of any bond which may be required by law to perfect such appeal or any stay of proceedings thereon, such justice of the peace so offending shall forfeit and pay to the party aggrieved a penalty of $200.00, to be recovered by him in an action of debt prosecuted in his own name, in the district court of the county in which said justice is acting." There is no dispute as to the facts in this case, and under the instructions of the court the jury returned a verdict in favor of the plaintiff, appellee herein, for the sum of $200.
The defense to the case was: "(1) That it must appear before the defendant can be liable, that he wrongfully refused to allow the appeal in question; (2) that if it appeared that the defendant was advised by the district attorney to refuse the appeal, and that he acted on such advice, then such refusal was not wrongful; and (3) that if the damage to the pump was more than $100, then the justice of the peace had no jurisdiction of the offense, and would have no jurisdiction to allow the appeal." Justices of the peace are provided for in the organic act under which this territory was created. Section 10 of that act provides for justices of the peace, and limits their jurisdiction, as provided by law, with the further limitation that they shall not have jurisdiction when the title or boundary lands are in dispute, or when the debt or sum claimed shall exceed $100. The jurisdiction of the justices of the peace is set out in ...
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