Hubert v. Am. Sur. Co.

• Decision Date: 16 November 1918
• Docket Number: No. 2309.,2309.
• Citation: 25 N.M. 131,177 P. 889
• Parties: HUBERTv.AMERICAN SURETY CO.
• Court: New Mexico Supreme Court

25 N.M. 131

177 P. 889

HUBERT

v.AMERICAN SURETY CO.

No. 2309.

Supreme Court of New Mexico.

Nov. 16, 1918.Rehearing Denied Jan. 27, 1919.

Syllabus by the Court.

Where an appellant fails to file a cost bond within 30 days as required by section 15, c. 43, Laws 1917, the appeal fails or abates, and in such case the appellee is not entitled to docket the case and secure an affirmance under section 22 of said chapter for failure of the appellant to file a transcript within 80 days.

Appeal from District Court, Eddy County; Richardson, Judge.

Action by F. E. Hubert, receiver, against the American Surety Company. Judgment for defendant, and plaintiff appeals. Motion by appellee for an affirmance of the judgment denied, and motion of appellant to dismiss the appeal granted.

Where an appellant fails to file a cost bond within 30 days as required by section 15, c. 43, Laws 1917, the appeal fails or abates, and in such case the appellee is not entitled to docket the case and secure an affirmance under section 22 of said chapter for failure of the appellant to file a transcript within 80 days.

Bujac & Brice, of Roswell, for appellant.

Stennis & Phillips and D. G. Grantham, all of Carlsbad (F. C. Wilson, of Santa Fé, of counsel), for appellee.

ROBERTS, J.

On the 31st day of May, 1918, upon application of the appellant, an order was entered in the district court of Eddy county granting appellant an appeal to the Supreme Court. Appellant filed no cost bond as required by section 15, c. 43, Laws 1917. On the 16th day of October, 1918, appellee filed, in this court, a motion to docket and affirm the judgment of the lower court under the provisions of section 22 of said chapter 43, Laws 1917. On the same day, but after the motion to docket and affirm had been filed, appellant filed a motion asking this court to dismiss the appeal. He also filed an application for a writ of error, which, however, need not be considered in this connection. The rights of the parties depend upon the construction of the two sections of the act of 1917 above referred to.

It is appellant's contention that by reason of his failure to file the cost bond within the time required by said section 15, i. e., 30 days, the appeal failed or abated; consequently, no right existed in the appellee under said section 22 to docket the cause and secure the affirmance of the judgment.

On behalf of appellee it is contended that notwithstanding the fact that said section 15 provides, “in case the appellant or plaintiff in error shall fail to file a cost bond as herein provided, the appeal or writ of error, as the case may be, shall fail,” nevertheless the Supreme Court has jurisdiction of the case and should docket and affirm upon motion of appellee for failure of appellant to file a transcript within 80 days after the appeal is allowed. The effect of section 15 was considered by this court in the case of Hernandez v. Roberts, 173 Pac. 1034, and it was held that the section had the effect of abating an appeal or writ of error where no cost bond is filed within the time required by the statute; that the failure to file a cost bond was an incurable defect which could not be waived by the appellee. Hence it follows that the Supreme Court, of its...