Farish v. N.M. M. Co.

• Decision Date: 31 January 1889
• Citation: 5 N.M. 234,21 P. 82
• Parties: FARISHv.NEW MEXICO M. CO.
• Court: New Mexico Supreme Court

5 N.M. 234

21 P. 82

FARISH

v.NEW MEXICO M. CO.

Supreme Court of the Territory of New Mexico.

Jan. Term, 1889.

Error to district court,Santa Fe county.

Rule 24 of the New Mexico supreme court provides that whenever it shall be intended to review by appeal or writ of error a judgment of the district court, a record of the pleadings and proceedings, containing a proposed bill of exceptions, if appellant desires to present exceptions not appearing on the record, shall be prepared by appellant, etc. Comp.Laws 1884, § 522, requires the courts in the exercise of chancery jurisdiction to conform their decisions, decrees, and proceedings to the laws and usages peculiar to that jurisdiction in the territory and in the United States courts. Held, that the rule did not intend to alter section 522 so as to require a bill of exceptions in a case in equity.

Francis Downs, for plaintiff in error.

W. T. Thornton and Edward L. Bartlett, for defendant in error.

BRINKER, J.

This is a motion to dismiss the writ of error, and strike the record from the files, for the reasons: First, because a writ of error does not lie to review a decree in chancery; second, because the folios of the transcipt are not numbered, nor the pages and margins the size required by the rules; third, because the plaintiff in error failed to deliver to the solicitor for defendant in error copies of the printed record; fourth, because the record shows that a proposed record and bill of exceptions was not settled and signed by the judgeof the court below, as required by rule 24. This court held, in accordance with the practice of the federal courts, that a writ of error would not lie in a cause in chancery. Kidder v. Bennett, 2 N. M. 37. The decision was rendered January 24, 1880. On January 26, 1880, the legislature passed an act, the first section of which is in these words: “All cases, either in law or equity, finally adjudged or determined in the district courts, may be removed into the supreme court of the territory for review, either by appeal or writ of error.” This section is in Comp. Laws 1884, § 2193. The enactment of this section so soon after the decision in Kidder v. Bennett, supra, shows conclusively that the legislature intended to abrogate the rule announced in that case. As to the second point, we think the requirement of the rule as to numbering the folios of the transcipt is directory, and the record should not be stricken out for a failure to comply with it. We held in Mora v. Schick, 13 Pac. Rep. 341, in considering a similiar provision, that as no penalty was prescibed for violating the rule we would not strike out the record. In Miller v. Preston, 17 Pac. Rep. 565, we held that the section of the statute requiring instructions to be numbered was directory, and would not be strictly enforced unless prejudicial error resulted. The third point was waived upon the argument. We will say, however, that it was not well taken. The motion was not filed on the second day of the term, nor supported by affidavit, and 24 hours' notice of the intention to file it was not given as required by rule 23. Mora v. Schick, 13 Pac. Rep. 341. We do not think the fourth ground of the motion tenable. Rule 24 provides: “Whenever it shall be intended to review by appeal or writ of error a judgment of the district court, a record of the pleadings and...