Jordan v. Jordan.

• Decision Date: 15 September 1923
• Docket Number: No. 2845.,2845.
• Citation: 29 N.M. 95,218 P. 1035
• Parties: JORDANv.JORDAN.
• Court: New Mexico Supreme Court

29 N.M. 95

218 P. 1035

JORDAN

v.JORDAN.

No. 2845.

Supreme Court of New Mexico.

Sept. 15, 1923.

Syllabus by the Court.

The right of appeal to the Supreme Court is a creature of constitutional or statutory authority, in the absence of which such right does not exist.

Section 2 of article 6 of the Constitution prescribes the appellate jurisdiction of the Supreme Court, but it does not give to litigants the right to invoke such jurisdiction by appeal.

An appeal from an order vacating a final judgment is governed by the provisions of section 2 of chapter 43, Laws of 1917.

Such an appeal must be prayed for within 20 days after the entry of the order appealed from.

Appeal from District Court, Quay County; Ryan, Judge.

Suit by James O. Jordan against Clella E. Jordan. From an order vacating a decree of divorce, plaintiff appeals. Affirmed.

Const. art. 6, § 2, prescribes the appellate jurisdiction of the Supreme Court, but does not give to litigants the right to invoke such jurisdiction by appeal.

R. A. Prentice, of Tucumcari, for appellant.

H. A. Kiker, of Raton, and M. B. Keator, of Tucumcari, for appellee.

BRATTON, J.

On May 4, 1920, the appellant instituted this suit against the appellee to obtain a decree of divorce on account of her having abandoned him. He further sought the custody and control of their two minor children. In addition, he charged that the parties owned, as community property, a certain described quarter section of land, situated in Quay county, of the value of $800, and prayed that the appellee's interest therein be awarded to him, to be used in the maintenance, support, and education of such children. The appellee filed her written waiver of service of summons and entered her general appearance, in which she declared she would not defend the suit, but did not intend thereby to consent that a decree of divorce be granted.

Upon a trial of the cause, which occurred on October 20, 1920, the trial court granted the appellant a divorce, as well as the custody of the two children as prayed for. In addition, it found that the parties were possessed of community property, consisting of both realty and personalty, of the value of $5,105. The appellee's interest in this entire community estate was awarded the appellant. Afterwards, and on September 21, 1922, an order was made and entered, vacating said decree in so far as it attempted to divest the appellee of her interest in the community property, except the quarter section of land which had been described in the complaint. As to this tract of land the original decree was undisturbed. On December 15, 1922, the appellant filed his motion, praying allowance of an appeal from such order, which was granted by an order dated December 18, 1922.

At the threshold of our consideration of the case we are met with appellee's contention that the appeal was not prayed for within the required time, and that it was not perfected within the time prescribed by law. It is contended that the appeal involves an order affecting a substantial right, made after the entry of final judgment, and that the right to appeal therefrom, as well as the time within which such appeal shall be prayed, is governed by the provisions of section 2, chapter 43, Laws of 1917, the pertinent portions of which are:

“Appeals shall also be allowed to the district court, and entertained by the Supreme Court, in all civil actions, from such interlocutory judgments, orders or decisions of the district courts, as practically dispose of the merits of the action, so that any further proceeding therein, would be only to carry into effect such interlocutory judgment, order or decision. Appeals shall also be allowed by the District Court, and entertained by the Supreme Court, from all final orders affecting a substantial right made after the entry of final judgment. * * * Application for allowance of appeal under the provisions of this section must be made within twenty days from the entry of the judgment, order, decision or conviction appealed from.”

[3] That the appeal is governed by the provisions of this section of the Appellate Procedure Act seems undebatable. By the terms of that chapter, two classes of appeals...