Jaritas Live Stock Co. v. Spriggs Et Ux.

• Decision Date: 01 December 1937
• Docket Number: No. 4325.,4325.
• Citation: 74 P.2d 722,42 N.M. 14
• Parties: JARITAS LIVE STOCK CO.v.SPRIGGS et ux.
• Court: New Mexico Supreme Court

42 N.M. 14

74 P.2d 722

JARITAS LIVE STOCK CO.

v.SPRIGGS et ux.

No. 4325.

Supreme Court of New Mexico.

Dec. 1, 1937.

Appeal from District Court, Colfax County; Thomas J. Mabry, Judge.

Action by the Jaritas Live Stock Company against Rossco Spriggs and wife. From the judgment, the named defendant appeals, and plaintiff moves to dismiss.

Motion denied.

Court rule authorizing an appeal to the Supreme Court by an aggrieved party within “three months” from entry of any final judgment requires that appeal be within three calendar months. Supreme Court Rules, rule 5, §§ 1, 5.

V. A. Doggett, of Raton, for appellant.

F. S. Merriau and Fred C. Stringfellow, both of Raton, for appellee.

PER CURIAM.

[1] This cause is before us on a motion to dismiss the appeal and involves construction of sections 1 and 5 of rule 5 of this court, which sections are as follows:

“1. Within three months from the entry of any final judgment in any civil action any party aggrieved may appeal therefrom to the Supreme Court.”

“5. Appeals, as provided by law, shall be allowed upon written application to and the order of the district court in which the judgment is rendered.”

The parties agree that “three months,” as used in the foregoing section, means three calendar months (62 C.J. 970); also, that the motion for appeal was filed in the clerk's office of the district court of Colfax county, Eighth judicial district, on the day next preceding the last day of the three-month period, and was forwarded by mail, with a prepared order, to Hon. Thomas J. Mabry, judge of the Second judicial district, at Albuquerque, who presided at the trial by designation of the chief justice, and that the order was not signed until the day after the expiration of the three-month period. The issue involved here was dearly stated in State v. Capital City Bank, 31 N.M. 430, 246 P. 899, 901, cited by both parties, wherein Mr. Chief Justice Parker commented upon a statute with similar provisions to our rule, as follows: “Whether an aggrieved party might not be in time if he filed his application in the clerk's office for an appeal within six months from the entry of the final judgment, and notwithstanding the court might fail to make the order of allowance until after the expiration of the six months, we do not decide, because the same is not involved here. Common prudence would seem to dictate the filing and presentation to the judge of the application for an appeal and the securing of the order within the six months. Circumstances might arise on account of the absence of the judge, or his inability to act for some reason, which might put an appellant in a disadvantageous position, unless it could he held under section 1 of the act that, if the party files his application for an appeal within time, the court might thereafter make the allowance of the appeal; but until such question is presented, we express no opinion thereon.”

[2] It is the policy of this court to construe its rules liberally to the end that causes on appeal may be determined on the merits, where it can be done without impeding or confusing administration or perpetrating injustice. Courts of many other states hold such views: Smythe v. Boswell, 117 Ind. 365, 20 N.E. 263; Hannah Cummings Adm'x v. Jesse Hugh, 2 Vt. 578; Jones v. Moise et al. (Ind.App.) 8 N.E.2d 99; McFadden v. Pennzoil Co., 326 Pa. 277, 191 A. 584; State v. Kacar, 74 Mont. 269, 240 P. 365; In re Loewenbach's Will, 210 Wis. 253, 246 N.W. 332; Carras v. Bungalow Sandwich Shoppe Co., 257 Mich. 467, 241 N.W. 230; 2 R.C.L. 100, § 73.

The United States Supreme Court in Latham v. United States, 9 Wall. (76 U.S.) 145, 19 L.Ed. 772 said:

“This is a motion to dismiss the appeal from the judgment of the Court of Claims, on the ground that it was not allowed within the ninety days fixed by the...