Loftus v. Johnson.

• Decision Date: 30 December 1916
• Docket Number: No. 1824.,1824.
• Citation: 22 N.M. 302,161 P. 1115
• Parties: LOFTUS ET AL.v.JOHNSON.
• Court: New Mexico Supreme Court

22 N.M. 302

161 P. 1115

LOFTUS ET AL.

v.JOHNSON.

No. 1824.

Supreme Court of New Mexico.

Dec. 30, 1916.

Syllabus by the Court.

In all actions tried without a jury the testimony taken before a court or that taken by a referee, the transcribed notes of the stenographer in such cases, properly certified by the court or referee, and all motions, orders, or decisions made or entered in the progress of the trial of any such action shall become and be a part of the record for the purpose of having the cause reviewed by the Supreme Court upon appeal or writ of error, without any bill of exceptions.

Section 31, c. 57, Sess. Laws 1907 (section 4500, Code 1915), provides a method by which less than the entire record may be incorporated into the transcript, but, under this section, all that portion of the record essential to a review in the Supreme Court of the questions presented must be incorporated into the transcript of the record.

Upon a doubtful or deficient record every presumption is indulged in favor of the correctness and regularity of the decision of the court below.

The duty of having a transcript properly prepared and filed rests upon the appellant or plaintiff in error.

Section 4502, Code 1915, provides that a suggestion or motion for a certiorari to supply a diminution of the record shall be made on the first day of the term to which the appeal or writ of error is returnable, and shall be accompanied by an affidavit setting forth reasons, satisfactory to the court, for the omission of the same from the transcript.

Error to District Court, San Juan County; Abbott, Judge.

Action by J. Allen Johnson against T. L. Loftus and others. Judgment for plaintiff, and defendants Loftus and others bring error. Motion to dismiss denied.

Upon a doubtful or deficient record, every presumption is indulged in favor of the correctness and regularity of the decision of the court below.

Frank A. Burdick, of Farmington, for plaintiffs in error.

HANNA, J.

This is a suit brought by the defendant in error, J. Allen Johnson, against the town of Farmington, and Messrs. Loftus, Hall, and Tucker, plaintiffs in error, seeking damages for the alleged negligent performance of a contract for the construction of a waterworks system to supply the town of Farmington.

At this time the case is not before us on its merits, but upon a motion by the defendant in error to dismiss the appeal, the grounds of which motion are: First, where only a portion of the record and proceedings of the trial court is deemed necessary to a review of the case, and such portion is called for by the præcipe filed in the office of the clerk of the district court, under the provisions of section 4500, Code 1915, it is necessary that the court stenographer transcribe the whole of his stenographic notes and file the same in the office of the clerk of the court in which the action in which they were taken was tried. Section 4500 does not clearly provide for the filing in the office of the clerk of the transcribed notes of the evidence or proceedings had at the trial, though inferentially such would seem to be called for. The præcipe is directed to the clerk of the court and calls for a portion or portions of the proceedings, which, it would seem, the clerk would be unable to incorporate in the transcript to be prepared by him unless all of the proceedings were on file in his office.

In the case of bills of exceptions, under the provisions of section 4495, it was evidently the intention of the Legislature to authorize any party to an action to require the court stenographer to transcribe the whole or any part of his notes, which are then to be filed in the office of the clerk of the court and thereafter embodied in the bill of exceptions. This section and section 4500 were both included in the appellate procedure act of 1907, and the fact that the filing of the transcribed notes in the office of the clerk of the court is not required under section 4495 would perhaps cast some doubt upon the construction of section 4500.

We have not been favored with a brief by defendants in error in support of the motion to dismiss, and by reason of the fact that our determination upon the second point raised makes the decision upon this, the first point raised, a moot question, we are disposed to pass the question without deciding, until such time as the court has the question before it properly briefed.

The second and only other point raised by the motion to dismiss is that where a portion only of the record or proceedings of the trial court is sought to be brought to this court for review, under sections 4493 and 4500, Code 1915, it is necessary that the portion of the proceedings so brought up for review shall be properly certified by the court or referee, which certificate must also show that the portion of the testimony or proceedings so brought up for review contains all the evidence in the court below upon the question or questions sought to be reviewed.

[1] The provisions of section 4493 are plain, and it is there clearly provided that:

“In all actions tried without a jury the testimony taken before a court or that taken by a referee, the transcribed notes of the stenographer in such cases, properly certified by the court or referee, and all motions, orders or decisions made or entered in the progress of the trial of any such action shall...