Kidder v. Bennett

• Citation: 2 N.M. 37
• Case Date: January 24, 1880
• Court: Supreme Court of New Mexico

2 N.M. 37

CLARENCE P. KIDDER
v.
JOSEPH F. BENNETT ET AL.

Supreme Court of the Territory of New Mexico.

Jan. 24, 1880.

The only remedy for a party aggrieved by an order or decree in equity is by appeal; error will not lie.

*1 Writ of Error to the District Court for the county of Grant.

This is a motion to dismiss a writ of error in a proceeding in chancery.

-, for defendant in error.

The first authority with reference to writs of error is the organic act, which says: Writs of error, bills of exception, and appeals, shall be allowed to the supreme court, in all causes from the final decisions of said district courts, under such regulations as may be prescribed by law. Organic Act, sec. 10, page 10.

Our statutes state that the supreme and district courts shall have power to issue all writs granted by law to the circuit and district courts of the United States, and the supreme court to establish all rules and forms of proceedings touching such writs in conformity with the known general principles, usages and objects of such process: Comp. Laws, p. 102, sec. 70. Also the said supreme and district court, in the exercise of chancery jurisdiction arising in all cases and matters of equity, shall conform in their decisions, decrees, and procedure to the laws and usages peculiar to such jurisdiction in this territory and the supreme, circuit and district courts of the United States: Comp. Laws, page 102, sec. 9.

The law also provides, that hereafter no writ of error shall be allowed by the supreme court of this territory, except within one year after the rendition of the judgment on which said writ of error is based, and that said supreme court shall make rules for the government of the practice in writs of error in common law cases: Stat. June 9, 1874, p. 44.

Under the above law the supreme court adopted the rules of Jan. 27, 1874, with reference to writs of error. See amendments to rules, etc., 1, 2, 3, 4, 5, 6.

It is a well recognized fact that writs of error at common law only were allowed in common-law cases, and appeals in chancery cases: Tomlin's Law, etc., Title Appeal, vol. 1, p. 81. The above principle is well recognized.

In the court of the United States appeals only lie in chancery cases, writs of error only in common-law cases: McCullum v. Eager, 2 How., 61.

If a writ of error was proper under our rules, this transcript is not sufficient: Rule 6, “Writs of Error.” Clerk may make return to the same by transmitting a true copy of the record...