Ojo Del Espiritu Santo Co. v. Baca.

• Decision Date: 30 December 1922
• Docket Number: No. 2272.,2272.
• Citation: 28 N.M. 509,214 P. 768
• Parties: OJO DEL ESPIRITU SANTO CO.v.BACA.
• Court: New Mexico Supreme Court

28 N.M. 509

214 P. 768

OJO DEL ESPIRITU SANTO CO.

v.BACA.

No. 2272.

Supreme Court of New Mexico.

Dec. 30, 1922.

Syllabus by the Court.

A record of the district court may be amended upon the recollection of the judge, supplemented from the record already made, and the evidence of officers in immediate attendance upon the court, including the attorneys in the case.

Section 4181, Code 1915, interpreted, and held to apply only to cases where the judge, owing to his other official duties, is unable to hear a matter at the very time the same is set for hearing.

A writ of certiorari may be issued by this court of its own motion to require the district court to clear up an ambiguity existing in its order settling a bill of exceptions.

Appeal from District Court, Santa Fé County; Reed Holloman, Judge.

On motion to quash writ of certiorari. Motion denied.

For former opinions, see 214 Pac. 764, 767. See, also, 214 Pac. 771.

Section 4181, Code 1915, interpreted, and held to apply only to cases where the judge, owing to his other official duties, is unable to hear a matter at the very time the same is set for hearing.

A. B. Renehan, of Santa Fé, and Marron & Wood, of Albuquerque, for appellant.

Catron & Catron, of Santa Fé, for appellee.

PARKER, C. J.

This case was originally before this court upon a motion made by the appellee to strike from the record the bill of exceptions, the “special bill of exceptions appearing by certificate,” and the instructions of the court given to the jury. So far as the main bill of exceptions and the special bill of exceptions are concerned, the motion is based upon two grounds, viz: (1) That the record fails to show that 5 days' notice was given by the appellant to the appellee of his intention to apply to the district judge to have the proposed bill of exceptions settled and signed as is required by section 27, c. 43, Laws 1917, and that in fact no notice of 5 days was given the appellee of such proposed settling and signing of said bill of exceptions; (2) that the record shows that the appeal in the cause was taken on January 23, 1918, and that the pretended bill of exceptions was settled and signed on June 22, 1918, and a special bill of exceptions was settled on July 9, 1918, both of which said dates were long after the return day of said appeal and more than 80 days after the granting of the same, and the record failed to disclose any order extending the time within which to settle and sign the bill of exceptions. The motion to strike out the instruction to the jury is based upon the proposition that the instructions are not part of the record proper and can be made a part of the record only by bill of exceptions, while in this case they appear only in the record proper, without having been settled and signed as a part of the bill of exceptions. In the certificate of the trial judge to the bill of exceptions, there appeared the following recitals:

“This cause having come on to be heard this 22d day of June, 1918, upon the motion of the defendant appellant for settlement as a bill of exceptions in said cause of the stenographer's transcript on file, consisting of the preceding 506 pages of the matters and things therein contained, and for the certification of the defendant's costs, and A. B. Renehan appearing for the defendant and C. C. Catron for the plaintiff having advised the court that he has no objection to the transcript and bill of exceptions as tendered, except as appears therein, and the court being sufficiently advised in the premises,” etc.

Upon consideration of the motion to strike the bill of exceptions, we heretofore held, in our opinion handed down on September 2, 1920, that this certificate, fairly interpreted, would seem to indicate that there was a waiver on the part of the appellee as to the contents of the bill of exceptions and not a waiver by him of his statutory right to 5 days' notice of the application to the district judge to have the bill of exceptions settled and signed. We thereupon held that the bill of exceptions should be stricken from the transcript, there being no evidence therein that the required notice had been given.

In regard to the so-called special bill of exceptions, we held that there was no pretense that any notice whatever was given appellee of the proposed settling and signing of the same, and it appearing from the certificate attached thereto that it was settled and signed upon the request of counsel for the appellant, the same should be stricken from the record. We likewise held that the instructions, not having been ordered to be filed by the clerk, were not a part of the record proper and should be stricken therefrom.

Upon consideration of the motion to strike, we held that the fact of an extension of time within which to perfect an appeal need not necessarily appear in the transcript of record, but that a certificate of the district clerk, filed in the office of the clerk of this court, was sufficient evidence upon which this court might determine whether the settling and signing of the bill of exceptions was had within the statutory time. A motion for a rehearing upon the motion to strike was filed by appellant, and a counter motion was filed by appellee to strike the same from the files, on the ground that the motion was not accompanied by a brief. This motion was sustained. Upon examination, however, of this motion for a rehearing, we became somewhat doubtful of our construction of the order settling the main bill of exceptions and stated, in an opinion handed down on March 18, 1921 (214 Pac. 764), that the court would grant a rehearing of its own motion of the former judgment upon the motion to strike the bill of exceptions. Thereupon the appellee filed an application in this court for a writ of certiorari to correct the record below, which application was denied in an opinion handed down October 6, 1921 (214 Pac. 767), upon the ground that appellee had submitted his case on the motion to strike upon the record as it then stood, and it could not afterwards seek to avoid a possible adverse ruling by this court by correcting the record. On December 3d, the court of its own motion ordered a writ of certiorari to the district judge to certify to this court the circumstances relative to the notice of the time and place of settling and signing the bill of exceptions in the case, on the ground that the court itself desired the equivocal language used in the order settling the bill cleared up. The writ issued, and the district judge has made a return to the same in which he states:

That, at the time of the presentation of the bill of exceptions for settlement and signature, he noticed the statement therein as follows:

“C. C. Catron for the plaintiff, having advised the court that he has no objection to the transcript and bill of exceptions as tendered, except as appears therein.”

That he thereupon called up C. C. Catron by telephone, informing him that said record had been presented for the purpose of settling and signing the bill of exceptions, and also asking him if he was making any objections to the settling and signing of the same; that, in response to said statement of the court to Mr. C. C. Catron, he stated to the court over the telephone that he had received no notice whatever, and that he was not at that time objecting to anything or consenting to anything, that he was not taking any action in the matter whatever, and was standing on his legal rights, and...