Madre v. Meyer

Citation17 N.M. 371, 128 P. 68
Case DateNovember 07, 1912
CourtSupreme Court of New Mexico

17 N.M. 371
128 P. 68

ACEQUIA MADRE ET AL.
v.
MEYER ET AL.

Supreme Court of New Mexico.

Nov. 7, 1912.


[128 P. 68] 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 [128 P. 69] 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...

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3 practice notes
  • Residences v. Martinez, NO. A-1-CA-37494
    • United States
    • New Mexico Court of Appeals of New Mexico
    • 4 Febrero 2019
    ..."to end the litigation by securing an affirmance of the judgmentPage 7 of the lower court." Acequia Madre v. Meyer, 1912-NMSC-044, ¶ 10, 17 N.M. 371, 128 P. 68 ("[H]ad appellants filed the dismissal prior to the motion for affirmance, no question could, we apprehend, be raised as to the rig......
  • El Castillo Retirement Residences v. Martinez, NO. A-1-CA-37494
    • United States
    • New Mexico Court of Appeals of New Mexico
    • 4 Marzo 2019
    ..."to end the litigation by securing an affirmance of the judgmentPage 7 of the lower court." Acequia Madre v. Meyer, 1912-NMSC-044, ¶ 10, 17 N.M. 371, 128 P. 68 ("[H]ad appellants filed the dismissal prior to the motion for affirmance, no question could, we apprehend, be raised as to the rig......
  • State Tax Comm'n v. Santa Teresa Land Co., No. 2826.
    • United States
    • New Mexico Supreme Court of New Mexico
    • 17 Enero 1925
    ...[233 P. 840] will be sustained, upon the authority of section 22 of chapter 43, Laws 1917, and Acequia Madre et al. v. Meyer et al., 17 N. M. 371, 128 P. 68, Gauss-Langerberg Hat Co. v. Bank, 17 N. M. 233, 124 P. 794, Hubbell v. Armijo, 18 N. M. 68, 133 P. 978, In re Murray, 19 N. M. 53, 14......
3 cases
  • Residences v. Martinez, NO. A-1-CA-37494
    • United States
    • New Mexico Court of Appeals of New Mexico
    • 4 Febrero 2019
    ..."to end the litigation by securing an affirmance of the judgmentPage 7 of the lower court." Acequia Madre v. Meyer, 1912-NMSC-044, ¶ 10, 17 N.M. 371, 128 P. 68 ("[H]ad appellants filed the dismissal prior to the motion for affirmance, no question could, we apprehend, be raised as to the rig......
  • El Castillo Retirement Residences v. Martinez, NO. A-1-CA-37494
    • United States
    • New Mexico Court of Appeals of New Mexico
    • 4 Marzo 2019
    ..."to end the litigation by securing an affirmance of the judgmentPage 7 of the lower court." Acequia Madre v. Meyer, 1912-NMSC-044, ¶ 10, 17 N.M. 371, 128 P. 68 ("[H]ad appellants filed the dismissal prior to the motion for affirmance, no question could, we apprehend, be raised as to the rig......
  • State Tax Comm'n v. Santa Teresa Land Co., No. 2826.
    • United States
    • New Mexico Supreme Court of New Mexico
    • 17 Enero 1925
    ...[233 P. 840] will be sustained, upon the authority of section 22 of chapter 43, Laws 1917, and Acequia Madre et al. v. Meyer et al., 17 N. M. 371, 128 P. 68, Gauss-Langerberg Hat Co. v. Bank, 17 N. M. 233, 124 P. 794, Hubbell v. Armijo, 18 N. M. 68, 133 P. 978, In re Murray, 19 N. M. 53, 14......

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