In re Murray.

• Decision Date: 28 April 1914
• Docket Number: No. 1596.,1596.
• Citation: 19 N.M. 53,140 P. 1042
• Parties: IN RE MURRAY.
• Court: New Mexico Supreme Court

19 N.M. 53

140 P. 1042

IN RE MURRAY.

No. 1596.

Supreme Court of New Mexico.

April 28, 1914.

Syllabus by the Court.

In the absence of an assignment of errors, where the same is required by statute or rule of court, no relief is asked of the appellate court, and it will not enter upon a consideration of the case. And where the appellant or plaintiff in error has failed to file an assignment of errors, as required by section 21, c. 57, S. L. 1907, and no attempt is made to excuse the default, the appeal or writ of error will be dismissed.

Appeal from District Court, Torrance County; before Justice E. L. Medler.

In the matter of Charles C. Murray, receiver of the New Mexico Central Railroad Company, petitioning for an order ratifying and approving the resolution passed by the Board of County Commissioners of Torrance County, recommending an adjustment and settlement of the taxes assessed against the said railroad for the years of 1910, 1911, and 1912, respectively. From an adverse order, the County Treasurer of Torrance County appeals. Appeal dismissed.

In the absence of an assignment of errors, where the same is required by statute or rule of court, no relief is asked of the appellate court, and it will not enter upon a consideration of the case. And, where the appellant or plaintiff in error has failed to file an assignment of errors, as required by Section 21, Chapter 57, Sess.Laws 1907, and no attempt is made to excuse the default, the appeal or writ of error will be dismissed.

F. W. Clancy, Atty. Gen., for appellant.

E. W. Dobson, of Albuquerque, for appellee.

ROBERTS, C. J.

Upon petition of Charles C. Murray, receiver of the New Mexico Central Railroad Company, the district court of Torrance county entered an order approving a resolution passed by the board of county commissioners of said county recommending an adjustment and compromise of the taxes assessed against said railroad company for the years 1910, 1911, and 1912, respectively, and the county treasurer was ordered and directed to accept the amount so found to be due by the decree in full settlement of the said taxes. From this order the county treasurer appealed to this court, but has failed to file any assignments of error. For this default, appellee moves to dismiss the appeal. Both parties have filed briefs on the merits of the case, but appellant has made no offer to cure his failure to file assignments of error. If the appellant must make and file assignments of error, in order to secure a consideration of the cause on appeal, which he fails to do, it follows necessarily that the merits of the case will not be considered by this court.

Section 21, c. 57, S. L. 1907, provides: “On appeals and writs of error, the appellant and plaintiff in error shall assign errors and serve a copy of such assignment of error on the opposite party in the same manner that copies of pleadings are served, and file a copy with the clerk of the supreme court on or before the return day to which the cause is returnable, which said assignment of errors shall be written on a separate paper and filed in the cause, and shall be also copied into the brief of appellant or plaintiff in error, and each error relied upon shall be stated in a separate paragraph. In default of such assignment of error and filing the same the appeal or writ of error may be dismissed and the judgment affirmed, unless good cause for failure be shown. Unless exception is filed or taken to the assignment of error the opposite party shall be deemed to have joined in error, upon the assignment of error so filed.”

From the above it will be seen that the statute contemplates that assignment of errors shall be filed in all civil cases taken to the Supreme Court by appeal, or in which a writ of error may have been sued out. The assignment of errors is, in legal contemplation, the complaint of the appellant or plaintiff in error. In it he sets forth the errors committed by the trial court, which he seeks to have reviewed by the appellate court. In a sense, it performs the same office as does a complaint filed in the trial court. Without a complaint the jurisdiction of the trial court cannot be invoked. In the absence of an assignment of errors, where the same is required by statute or rule of court, no relief is asked of the appellate court, and it will not enter upon a consideration of the case. Appellant contends, however, that this court...