Madre v. Meyer

• Decision Date: 07 November 1912
• Citation: 17 N.M. 371,128 P. 68
• Parties: ACEQUIA MADRE ET AL.v.MEYER ET AL.
• Court: New Mexico Supreme Court

17 N.M. 371

128 P. 68

ACEQUIA MADRE ET AL.

v.MEYER ET AL.

Supreme Court of New Mexico.

Nov. 7, 1912.

Syllabus by the Court.

Appellee cannot secure the dismissal of an appeal and affirmance of the judgment of the lower court, under section 21, c. 57, Laws 1907, as amended by section 2, c. 120, Laws 1909, without filing three copies of the transcript of record, as required by said section.

Appellant cannot, in the face of a motion to dismiss the appeal and affirm judgment, well taken, dismiss the appeal and cut off appellee's rights to an affirmance, given him by the statutes.

Upon the failure to assign error and file a copy of such assignment of error with the clerk of the Supreme Court, and serve the opposite party, as required by section 21, c. 57, S. L. 1907, the appeal will be dismissed and the judgment of the lower court affirmed, in the absence of any showing excusing the default.

Appeal from District Court, Taos County; before Justice John R. McFie.

Action between the Acequia Madre and others against Ferdinand Meyer and others. From the judgment, the Acequia Madre and others appeal. Motion of appellees to dismiss the appeal and judgment granted.

Appellee cannot secure dismissal of an appeal and affirmance of a judgment, under Laws 1907, c. 57, § 21, as amended by Laws 1909, c. 120, § 2, without filing three copies of the transcript, as required by such section.

A. C. Voorhees, of Raton, for appellants.

Renehan & Wright, of Santa Fé, for appellees.

HANNA, J.

On February 23d appellants applied for and were granted an appeal to the Supreme Court from a judgment entered by the district court of Taos county on the 2d day of December, 1911. Appellants failed to file a transcript of record and proceedings prior to the return day, as required by section 21, c. 57, S. L. 1907, as amended by section 2, c. 120, S. L. 1909, said return day being the 2d day of July, but sent to the clerk, on the 5th day of July, said transcript, which, however, was not filed until July 19th, as the required fees did not accompany the same. On July 19th appellees filed a motion to dismiss the appeal and affirm the judgment, because of the failure to file the transcript within the time limited.

Appellants also failed to assign errors and serve a copy of such assignment on appellees, and file a copy with the clerk of the Supreme Court on or before the return day, as required by section 21 of chapter 57, supra. Because of such failure, appellees moved to dismiss the appeal and affirm the judgment. Thereafter appellants filed a dismissal of the appeal.

Three questions are presented for our determination: (1) Can an appellee secure the dismissal of an appeal and the affirmance of the judgment of the lower court without filing three copies of the transcript of record, as required by section 2, c. 120, S. L. 1909? (2) Can the appellant, in face of a motion for affirmance, well taken, dismiss the appeal and cut off appellee's right to an affirmance, granted him by the statute? (3) Shall the judgment be affirmed for failure to assign errors and file copy of such assignment of error with the clerk of the Supreme Court, and serve the opposite party, as required by section 21, c. 57, supra, in the absence of any showing excusing the default?

1. Section 21, as amended, requires the appellant to file in the office of clerk of the Supreme Court at least 10 days before the return day of any writ of error or appeal, as perfect and complete a transcript of the record and proceedings in the cause as may be necessary to enable the court to properly review it, and then proceeds: “If he fail to do so the appellee or defendant in error may produce and file in the Supreme Court, at any time after such return day, three copies of a written or printed transcript containing the judgment or order allowing the appeal therefrom, * * * and may move to docket said cause and affirm said judgment; and if it appear from said transcript that a judgment was rendered in said cause and that an appeal or writ of error has been taken or sued out therefrom, the court shall affirm said judgment, unless good cause be shown to the contrary.” The section also provides for an extension of time within which to file the transcript, and the method by which it may be obtained; but, as no application was made for or extension granted, we need not incorporate that portion of the section in this opinion.

[1] The appellees did not file the copies of the transcript, as required by the section, but withheld their motion to affirm until after appellants had filed the transcript. While the act requires diligence on the part of the appellant in perfecting his appeal, we think it requires equal diligence on the part of appellee; and that it should not be so construed as to permit appellees to await the filing of the transcript by the appellants, and then move for an affirmance. It is a harsh remedy, designed to secure diligence and a speedy determination of litigation; and, if appellee does not avail himself of the provision of the act by a strict compliance therewith, he waives the benefits conferred. If he elects to take advantage of the default of the appellant, he must do so before the default has been cured, by a compliance on his part with the requirements of the section. The statute does not give him the right to an affirmance upon the incoming of the tardy transcript, but only in case he files three copies of the transcript; and these he must file before the appellant has cured his default, if he desires to profit thereby. That this is the proper construction is made clear by the proviso at the end of said section 2, which authorizes the Supreme Court, or the judge of the district court where such judgment was rendered, etc., to grant to the appellant or plaintiff in error further time to file a complete transcript, even though the time to file the same may have expired. It is clear, therefore, that the judgment should not be affirmed, because of the failure to file transcript within the time limited; appellees not having taken advantage of such default, as required by said section 2.

[2] 2. Can the appellants, when confronted by a motion for affirmance, well taken under the statute, dismiss their appeal, thereby preserving their right to a subsequent appeal? The question must, we think, be answered in the negative. The appellees, having recovered a judgment in the lower court, are vitally interested in the final determination of the litigation....