Jung v. Myer.

• Decision Date: 25 April 1902
• Citation: 68 P. 933,11 N.M. 378
• Parties: JUNGv.MYER.
• Court: New Mexico Supreme Court

11 N.M. 378

68 P. 933

JUNG

v.MYER.

Supreme Court of the Territory of New Mexico.

April 25, 1902.

Appeal from district court, Bernalillo county; before Justice J. W. Crumpacker.

Action by Fred H. Jung against Ben Myer. From an order denying plaintiff's motion to strike the answer of defendant from the records, the plaintiff appeals. Appeal dismissed.

In a territory the constitution and laws of the United States, and especially the organic act of the territory itself, stands exactly in the relation a state constitution occupies in a state. All territorial enactments not consistent with them are null and void.

R. W. D. Bryan, for appellant.

Niel B. Field, for appellee.

McMILLAN, J.

It is urged on behalf of the respondent that this court is without jurisdiction to hear the appeal taken herein, as the act of the legislature authorizing appeals where the judgment appealed from is not final in its character is inconsistent with, if not in direct conflict with, the organic act of the territory. The provisions of chapter 82 of the Laws of 1901, under which it is claimed on behalf of appellant that this appeal is authorized, are as follows: “The supreme court of the territory shall have exclusive jurisdiction to review upon appeal or writ of error all judgments, orders and decrees, made or rendered in the district courts in either of the following cases: (a) Where a final judgment has been rendered in an action commenced in the district court, or a justice of the peace; also to review an interlocutory judgment or order or decree involving the merits of any cause, and necessarily affecting the final judgment. (b) Where, an order, judgment or decree has been made or rendered in any action affecting a substantial right, which either in effect determines the action, or prevents a final judgment, or discontinues the action, or grants, or refuses a new trial, or determines a statutory provision of the territory to be unconstitutional or in conflict with the organic law of the territory, or determines a demurrer which goes to the substantial right of the case. (c) Where a final order, judgment or decree affecting a substantial right has been made in a special proceeding or upon a summary application in an action after judgment, and any intermediate order, judgment or decree, involving the merits of the action. When an order or judgment dissolving or sustaining an attachment is rendered in the district court, such order or judgment may be reviewed on appeal or writ of error, taken or sued out by any person aggrieved thereby.” This act clearly authorizes an appeal from an interlocutory order affecting a substantial right, and unless its provisions are in conflict with the organic act the questions presented by the appeal are properly before this court. The provisions of the organic act (section 10) limiting the jurisdiction of the supreme court upon appeals, in so far as the same are material to the questions herein presented, are as follows: “That the judicial power of said territory shall be vested in a supreme court, district courts, probate courts, and in justices of the peace. *** The jurisdiction of the several courts herein provided for, both appellate and original, and that of the probate courts and of justices of the peace, shall be as limited by law: provided, *** that the said supreme and district courts, respectively, shall possess chancery as well as common law jurisdiction. *** Writs of error, bills of exception, and appeals, shall be allowed in all cases from the final decisions of said district courts to the supreme court, under such regulations as may be prescribed by law, but in no case removed to the supreme court, shall trial by jury be allowed in said court. ***” These provisions are limitations on the appellate jurisdiction of this court, and must be considered in connection with the legislative power and authority granted by the organic act (section 7), which are as follows: “That the legislative power of the territory, shall extend to all rightful subjects of legislation, consistent with the constitution of the United States and the provisions of this act.” The language used in the organic act (section 10) regulating writs of error, bills of exception, and appeals, is clear and specific. It provides that they “shall be allowed in all cases from the final decision of said district courts to the supreme court, under such regulations as may be prescribed by law.” The supreme court derives its appellate jurisdiction from the organic act, and by the terms of the act itself it has no appellate jurisdiction except from final decisions of the district courts. It was by the provisions of the organic act that the supreme court was brought into existence, and all of its jurisdiction is derived from the organic act and subsequent congressional legislation. Arellano v. Chacon, 1 N. M. 269, in which the court says: “The judicial powers of this territory are clearly vested and carefully distributed by congress in what is termed the ‘Organic Act.’ This act declares that the several courts, both appellate and original, and those of the probate and justices of the peace, should have jurisdiction as limited by law. It then immediately proceeds to prescribe by law limits to justices of the peace, and confining them beyond the power of the territorial legislature to enlarge, and in very same sentence vests the supreme and district courts ‘with chancery as well as common-law jurisdiction.’ So plain and complete an endowment of judicial power in the courts of highest dignity and authority in the territory must be taken as negativing the like jurisdiction in the inferior courts, as also excluding the legislature from the authority to clothe them with the jurisdiction so affirmatively reposed in the supreme and district courts.” It has been urged, not only in the case at bar, but elsewhere, that the words of the organic act (section 10), “the jurisdiction of the several courts herein provided for, both appellate and original, and that of the probate courts, and of justices of the peace, shall be as limited by law,” delegate to the territorial legislature the power to regulate the jurisdiction of the several courts. We cannot approve of this construction, for the reason that the organic act, after the words above quoted, further provides that “the said supreme court and district courts, respectively shall possess chancery as well as common law jurisdiction,” and, further, “writs of error, bills of exception, and appeals, shall be allowed in all cases from the final decisions of said district courts to the supreme court, under such regulations as may be prescribed by law, but in no cause removed to the supreme court shall trial by jury be allowed in said court.”

It will be seen from these quotations from the organic act that the jurisdiction of the supreme and district courts has been specifically defined,-first, that they shall possess chancery and common-law jurisdiction, and that the supreme court shall have appellate jurisdiction, and that writs of error, bills of exception, and appeals shall be allowed in all cases from the final decisions of the district courts to the supreme court. It will be observed that the procedure by which writs of error, bills of exception, and appeals are perfected is left to the legislative assembly by the use of the words “under such regulations as may be prescribed by law.” It is only the regulation of procedure that is delegated to the legislative assembly, whereas the words used in connection with the jurisdiction of the several courts are of an entirely different purport. Huntington v. Moore, 1 N. M. 471, in which the court says: “That part of the organic act which provides that appeals shall be allowed ‘under such regulations as may be prescribed by law,’ is only intended to give to the legislature the power of prescribing the manner in which appeals may be taken after final judgment or decree is had. This power they appear to have exercised, and have prescribed the manner in which appeals may be taken to the supreme court on final judgment or decree.” The first declaration in the organic act (section 10) touching the question of jurisdiction is to the effect that “the jurisdiction of the several courts herein provided for, both appellate and original, and that of the probate courts, and of justices of the peace, shall be as limited by law.” Then follow the various specific limitations as to the jurisdiction of the supreme and district courts; so that we must conclude, upon a fair construction, that the words “shall be as limited by law” refer to the subsequent specific provisions touching the jurisdiction of such courts as are set forth in the organic act itself. Archibeque v. Miera, N. M. 160, in which the court says: “The jurisdiction of these several courts is thus limited by the organic law as to their appellate and original powers. It fixes their character; and that portion of the organic act which provides that the jurisdiction of the several courts herein provided for, both appellate and original, and that of the probate courts and of justices of the peace, shall be limited by law, provided, etc., it does not confer upon the legislature the power to below upon the supreme court original jurisdiction, nor appellate powers upon the other courts therein mentioned. It only provides that the jurisdiction of the supreme court, with its appellate power, shall be as limited by law.”

Some weight...