Mundy v. Irwin.

• Decision Date: 15 June 1914
• Docket Number: No. 1638.,1638.
• Citation: 19 N.M. 170,141 P. 877
• Parties: MUNDYv.IRWIN.
• Court: New Mexico Supreme Court

19 N.M. 170

141 P. 877

MUNDY

v.IRWIN.

No. 1638.

Supreme Court of New Mexico.

June 15, 1914.

Syllabus by the Court.

A cost bond is required, on appeal or writ of error, only for the protection of the appellee or defendant in error, and is not essential in order to confer jurisdiction, and failure to give same may be cured by tendering and filing a bond before advantage of the failure to file same is taken by an adversary.

A motion to dismiss the appeal, or for diminution of the record proper, based upon failure to incorporate the opinion of the trial court in the transcript of record, will be overruled where it appears that the opinion has been incorporated into and made a part of the final decree, or judgment, which is included in the transcript of record.

Without the certificate of the court or referee, required by section 24, c. 57, Laws 1907, the testimony cannot be considered as any part of the record for the purpose of having the same reviewed by this court, upon appeal or writ of error, without any bill of exceptions.

Section 16, c. 57, Laws 1907, providing for a supersedeas or stay of execution upon any final judgment, must be strictly complied with, and failure to file a sufficient bond within the 60 days limited by the act will result in failure to stay the execution.

Additional Syllabus by Editorial Staff.

A bond conditioned merely for the payment of costs, and not for payment of the judgment as well as costs, as required by Laws 1907, c. 57, § 16, was insufficient as a supersedeas bond.

A general appearance by the appellee, without objection to failure to file a cost bond on appeal, waives the right to make such objection.

Appeal from District Court, Chaves County; before Justice Mechem.

Action by E. S. Mundy against W. J. Irwin. Judgment for plaintiff, defendant appeals, plaintiff moves to dismiss the appeal, and defendant moves for leave to correct the transcript of record. Both motions denied.

A motion to dismiss the appeal, or for diminution of the record proper based upon failure to incorporate the opinion of the trial court in the transcript of record, will be overruled where it appears that the opinion has been incorporated into and made a part of the final decree, or judgment, which is included in the transcript of record.

Gibbany & Black, of Roswell, for appellant.

Hiram M. Dow, of Roswell, and Robert C. Dow, of Carlsbad, for appellee.

HANNA, J.

[5] This appeal was taken July 28, 1913. On September 4, 1913, what purported to be a supersedeas bond was filed, the condition of which undertaking was as follows, to wit:

“The condition of this application is such that if the said W. J. Irwin shall prosecute his said appeal with due diligence, and shall pay all costs that may be adjudged against him in case such appeal be dismissed or the decision of the district court be void; otherwise to remain in full force and effect.”

The statutory requirement concerning bonds of this character, as set forth in section 16, c. 57, S. L. 1907, is that such bonds are to be conditioned upon payment of the judgment as well as costs, and it is therefore clear that this bond is insufficient as a supersedeas bond.

[1] Appellee moves that this appeal be dismissed because of failure to file a cost bond within the statutory period of 30 days, and by appellant it is contended that, should the undertaking referred to be insufficient as a supersedeas bond, it is sufficient as a cost bond, and was filed before any advantage was taken of the failure to file same within the period of 30 days fixed by our statute. We agree with appellant's contention.

The so-called supersedeas bond is sufficient as a cost bond and was filed before advantage was taken of the failure to file within 30 days.

As announced by this court in the case of Canavan v. Canavan, 138 Pac. 200, in an opinion by Chief Justice Roberts:

“The filing of the bond * * * is not necessary to our jurisdiction. It attaches upon the allowance of the appeal or the issuance of the writ of error. Other statutory requirements, of course, must be complied with in order to give the court jurisdiction over the parties, but it acquires jurisdiction of the cause by the allowance of the appeal or issuance of the writ of error. Many steps are required of the appellant or plaintiff in error before he can bring the case to a hearing on the merits, and a failure on his part to comply with the statutory requirements, advantage being taken thereof by his adversary, may preclude a hearing on the merits and result in a dismissal of the appeal.”

This court is of the opinion that a cost bond is required on appeal or writ of error only for the protection of the appellee or defendant in error, and is not essential in order to confer jurisdiction, and failure to give same may be cured by tendering and filing a bond before advantage of the failure to file same is taken by an adversary.

[6] It further appears that a general appearance was entered in this cause without raising objection to the failure to file a cost bond, which in itself would necessitate the overruling of the motion to dismiss under the rule announced by this court in the Canavan Case, supra.

[2] As a second ground of appellee's motion to dismiss,...