Gonzales v. Gallegos.Dodge v. Baca. Marques v. Same.Sanchez v. Gallegos.

• Citation: 62 P. 1103,10 N.M. 372
• Parties: GONZALESv.GALLEGOS.DODGEv.BACA. MARQUESv.SAME.SANCHEZv.GALLEGOS.
• Decision Date: 23 August 1900
• Court: Supreme Court of New Mexico

10 N.M. 372

62 P. 1103

GONZALES

v.GALLEGOS.DODGE

v.BACA. MARQUES

v.SAME.SANCHEZ

v.GALLEGOS.

Supreme Court of the Territory of New Mexico.

Aug. 23, 1900.

Syllabus by the Court.

1. An election contest for a county office under sections 1726-1736, Comp. Laws 1897, is a special statutory proceeding, and not a “civil action” within the meaning of the Code.

2. Where the answer is not served at the time and in the manner provided by section 1732, it is not error to strike it from the files upon motion.

3. Where application is made for leave to serve answer after statutory period for such service has expired, it is not error to deny such application.

Appeal from district court, Union and Guadalupe counties; before Chief Justice William J. Mills.

Actions by Manuel Gallegos against Jose Merced Gonzales, by Placido Baca y Baca against Roman Dodge, by Pasqual Baca against Juan Marques, and by Desiderio Gallegos against Leopoldo Sanchez. Consolidation by stipulation. Judgment rendered for plaintiffs, and defendants appeal. Affirmed.

By stipulation the above four cases are to be considered as one. The facts being the same in all of the cases, the law is equally applicable to all. A record has been filed in the first case only, but by the stipulation this record is to be considered the record in all, and the decision rendered shall apply to and dispose of all the cases. The above cases are election contests, brought under the statute enacted for the determination of such contests, the same being embraced in chapter 3, tit. 12, Comp. Laws 1897. There is no dispute as to the facts concerning the proceedings in the court below, and they may be stated as follows: First. Manuel Gallegos, appellee, brought his action in the district court of Union county, to contest the election of the appellant Jose Merced Gonzales to the office of clerk of the probate court of Union county, N. M., by filing his notice of contest in the office of the clerk of the district court for said county on the 7th day of December, A. D. 1898. Second. A writ of summons and a copy of the appellee's notice of contest were served on appellant on the 14th day of December, A. D. 1898, by leaving the same with the wife of appellant, at his place of residence, she being a person over the age of 16 years. Third. On the 26th day of December, A. D. 1898, the appellant filed his answer in the office of the clerk of the district court, and on the same day served and delivered a copy of his said answer to the attorney of record of the said appellee, Charles A. Spiess, Esq. Fourth. On the 7th day of February, A. D. 1899, the appellant filed his motion praying for leave to serve upon the appellee in person a copy of his answer. Fifth. On the 10th day of February, A. D. 1899, appellee filed his motion to strike out appellant's answer from the files in said cause, and praying for judgment upon the averments contained in his notice of contest. Sixth. On the 2d day of March, A. D. 1899, the court overruled appellant's motion for leave to serve copy of his answer on appellee, and sustained appellee's motion to strike appellant's answer from the files, and rendered judgment as prayed for in appellee's said motion. Seventh. On the 10th day of March, A. D. 1899, appellant filed his motion praying for a new trial of said cause, which said motion was heard and overruled by the court on the 20th day of November, A. D. 1899, and from said judgment and ruling of the court appellant brings the cause to this court on appeal. From the record in the case of Manuel Gallegos, contestant, versus Jose Merced Gonzales, contestee,-the only record filed,-this controversy may be summarized as follows. The respondent in the court below, Jose Merced Gonzales, did not serve a copy of his answer upon the contestant, Manuel Gallegos, but served such copy upon his attorney of record in said cause. Afterwards, on the 7th day of February, 1898, and not within 20 days after the date of the service of a copy of the notice of contest upon him, the appellant, Gonzales, moved the court for an order permitting him to serve the contestant, Gallegos, with his answer to the notice of contest. The refusal of the court below to grant this order, and the action of the court in striking the answer of appellant from the files and pronouncing judgment in favor of the appellee, has been assigned as error in this cause. The following are the only assignments of error relied upon and stated in the record by counsel for appellants: Assignment of error No. 1: “The court erred in sustaining appellee's motion to strike the answer of appellant from the files of said cause, and in granting and rendering judgment for appellee as therein prayed for.” Second assignment of error: “The court erred in overruling the appellant's motion for leave to serve a copy of his answer upon the appellee, even though 20 days had elapsed since the service upon appellant of the appellee's notice of contest.”

Where the answer is not served at the time and in the manner provided by section 1732, it is not error to strike it from the files upon motion.

O. A. Larrazolo, for appellants. C. A.

Spiess, for appellees.

McFIE, J. (after stating the facts).

The questions presented by this record have been passed upon and decided by this court adversely to the contention of appellants in the cases of Bull v. Southwick, 2 N. M. 321; Vigil v. Pradt, 5 N. M. 161, 20 Pac. 795,-and therefore are not now open questions, unless they become such by the enactment of the Code of Civil Procedure. In the case of Bull v. Southwick, 2 N. M. 321, the court, in construing a statute identical in terms with the statute now under consideration, said: “It is also my opinion that the very object of the statute in regard to the pleadings and practice in contested election cases is to afford, and at the same time to compel the observance of, a speedy mode of conducting and terminating such cases. Its language is plain, and free from all ambiguity. There is no room for mistaking its purport and meaning, and I cannot conceive of any reasonable excuse for not following its provisions by either party. The statutory provisions as to the time of filing and serving the notice of contest, answer, and reply are, in effect, statutes of limitation, taking from the judge all discretion as to extending the time.” The statutes relating to election contests in this territory have been practically the same since their first enactment, in 1874, so far as the provisions now involved are concerned. The sections involved in this case read as follows:

“Sec. 1729. The respondent shall file his answer to the notice of contest, and serve a copy thereof on the contestant within twenty days from and after the service of such notice of contest upon him, exclusive of the day of such service; and any material fact alleged in the notice of contest, not specifically denied by the answer within the time aforesaid, shall be taken and considered as true.”

“Sec. 1732. A copy of the notice of contest, answer and reply shall be served respectively in the same manner as process is now by law required to be served, in an action at law.”

In 1889 these statutes were considered by this court in the case of Vigil v. Pradt, 5 N. M. 161, 20 Pac. 795. In that case service of the answer was attempted, but not made on the contestant within 20 days after the service of notice of contest, and in that case there was also a motion made by respondent asking leave to serve a copy of the answer to the notice of contest, which motion was refused, as was done in the case at bar. Also, in that case, the answer of respondent was stricken from the files, and judgment rendered in favor of the contestant upon the averments contained in the notice of contest, as was done by the district court in the case at bar. In deciding the case and re-examining the case of Bull v. Southwick, the court said: “The plain language of the statute (section 1235, now section 1729) is: ‘The respondent shall file his answer to the notice of contest, and serve a copy...