Pankey v. Hot Springs Nat. Bank

• Decision Date: 22 November 1938
• Docket Number: No. 4375.,4375.
• Citation: 42 N.M. 674,84 P.2d 649
• Parties: PANKEYv.HOT SPRINGS NAT. BANK.
• Court: New Mexico Supreme Court

42 N.M. 674

84 P.2d 649

PANKEY

v.HOT SPRINGS NAT. BANK.

No. 4375.

Supreme Court of New Mexico.

Nov. 22, 1938.

Appeal from District Court, Sierra County; Eugene D. Lujan, Judge.

Action by Joseph L. Pankey against the Hot Springs National Bank. From the judgment, plaintiff appeals. On defendant's motion to dismiss the appeal.

Motion denied.

“Judicial discretion” is a discretion which is not arbitrary, vague, or fanciful, or controlled by humor or caprice, but is a discretion which is governed by principle and regular procedure for the accomplishment of the ends of right and justice.

E. L. Medler and Wm. A. Gillenwater, both of Hot Springs, for appellant.

Mechem & Hannett, of Albuquerque, and E. D. Tittmann, of Hillsboro, for appellee.

BICKLEY, Justice.

This case is before us again on appeal after proceedings taken as authorized in the cause reported in 42 N.M. 425, 80 P.2d 765.

It appears that appellant filed his motion appropriate to invoke the discretion reposed in the district court in Sec. 1 of Supreme Court Rule VII, to relieve appellant from the consequences of his failure to serve notice of appeal. Sec. 1 of said Rule VII is as follows: “Within fifteen days after the allowance of an appeal or the issuance of a writ of error, the appellant or plaintiff in error shall give notice thereof to the opposite parties, and make proof of service to be filed in the district court. No party not so served shall be deemed an appellee or defendant in error unless brought in by order of the court allowing the appeal or writ of error, on motion of the appellant or plaintiff in error, heard as an adversary proceeding, and in discretion and on just terms.”

The motion sets forth that the failure of appellant to give the required notice of appeal was due to inadvertence and mistake and that the appellee, through its attorney, had knowledge of facts showing that appellant intended to take an appeal, and was taking steps thereto.

It is also alleged in said motion that: “That heretofore and on the 14th day of February 1938, and after the expiration of three months from the date of the order granting an appeal herein, the defendant and appellee, Hot Springs National Bank, filed a motion to dismiss the appeal herein upon the ground that a transcript had not been filed in the Supreme Court within the time fixed by Rule XIV, Paragraph 1, when in truth and in fact the said plaintiff and appellant had theretofore and on the 5th day of February, 1938, and within the ninety day period allowed by the Rules to file said transcript had filed said transcript. That accompanying said motion to dismiss the appeal so filed in this Court on the 14th day of February, 1938, was a notice of the calling up of the same before the Judge of this Court at Hillsboro on the 17th day of February, 1938, at Two o'clock P. M., a copy of which said motion to dismiss appeal and notice are filed herein, made a part of this motion, marked Exhibit ‘D’, which said motion to dismiss was abandoned by defendant and never called up for submission to this Court.”

It is further alleged that within thirty days after allowance of the appeal, counsel for appellant sent by mail to one of the attorneys for appellee a copy of the praecipe for record on appeal. Apparently the purpose of these allegations was to show that the appellee knew that the appeal had been allowed. No pleading was filed by the defendant Hot Springs National Bank, denying the matters and things set forth in the motion, or otherwise in response thereto.

The district court heard the motion and the argument of counsel for the respective parties and entered an order denying the motion, from which order plaintiff-appellant Pankey applied for and was allowed a short appeal. There has been filed a “Supplemental Transcript of Proceedings” which discloses the proceedings on the motion to bring in defendant Hot Springs National Bank as appellee. There are some exhibits attached to the motion which might tend to support an inference that defendant had knowledge that plaintiff had been allowed an appeal. There was no oral testimony, and there were no findings of fact or conclusions of law made by the court and none were requested. In appellant's brief on the present or supplemental appeal, errors are assigned as follows:

“1st. The court below erred in holding that the failure to give the notice required by Rule VII, and file proof of service within fifteen days was a fatal defect to the appeal.

“2nd. The court below erred in arbitrarily denying the motion of the plaintiff and appellant and refusing to permit the defendant and appellee to be made a party to the appeal.

“3rd. The court below erred by the abuse of its discretion in denying the motion of the plaintiff and appellant and refusing to make an order authorizing the bringing in of the defendant and appellee as a party to the appeal.”

In connection with the first assignment of error, the brief of appellant states as follows: “The court in determining the motion of appellant, while this is not incorporated into the record, announced that in his opinion the failure to give the notice under rule VII was fatal to the appeal, and he therefore had no further jurisdiction. We make this as a statement of fact, in fairness to the court, as explaining the reasons for his action.”

No exceptions are taken to the assignments of error and the defendant in its answer brief does not challenge the statement of counsel for appellant last heretofore quoted.

Counsel for defendant calls attention to the absence of findings of fact or conclusions of law and the absence of any exceptions to the failure of the court to make findings and conclusions. It is asserted: “There is nothing in the record from which this court can ‘discover the considerations which actuated the trial court in its action.”’ And further: “There is nothing in the record to show that the district court did not exercise his discretion in denying the motion, or from which this court can infer a failure to exercise his discretion.”

[1] The statutes or rules of court governing appellate procedure usually require a citation, summons, or notice of appeal to appellee or defendant in error and compliance with the statute or rule in this respect is generally essential to the exercise of the right of appeal or to the jurisdiction of the appellate court of the person of appellee unless such citation or notice is waived. See 4 C.J.S., Appeal & Error, § 574.

It was required by § 2, Ch. 57, L. 1907, carried into the 1915 Code as § 4471, that when an appeal is taken, unless the same is taken in open court (which method of appeal is no longer in vogue) citation shall be issued by the clerk of the district court directed to and citing the opposite party to appear in the Supreme Court and answer such appeal on the return day thereof. This section was repealed by § 60, Ch. 43, L. 1917, and there was enacted in lieu thereof § 3 of said Ch. 43, which was not essentially different from the repealed section so far as material to the present consideration. Then in 1927, by § 1, Ch. 93, § 3, Ch. 43, L.1917 was amended with the result that all of the provisions relative to citation when an appeal is taken were eliminated. Perhaps the legislature realized that the matter of notice of appeal had been or would be taken care of by the Supreme Court under its rule-making power.

By our Rules of Appellate Procedure, promulgated Jan. 7, 1928, effective March 1, 1928, it was provided in Rule V in section 1 thereof, that upon the docketing of an appeal a citation should be issued by the Clerk of the Supreme Court and mailed by him to the attorney of record for the opposite party in the court below. Section 2 provided that within five days after taking an appeal the appellant shall give written notice thereof to the attorney of record of the opposite party or parties and that proof of service of such notice shall be filed and shall be a part of the record proper.

Wade in his text on New Mexico Appellate Procedure says that citation is the process by which a party is notified of an appeal taken or a writ of error sued out. § 262. And that the purpose of the citation is to notify the opposite party that the cause has been removed to the superior tribunal so that he may appear and protect his rights. That it performs in a measure the same functions as a summons issued out of an inferior court. § 263. Citing Dailey et al. v. Foster, 17 N.M. 337, 128 P. 71. At § 264, Mr. Wade says: “Acts required by the statute to perfect an appeal are jurisdictional and must be strictly complied with to vest the appellate court with power to entertain the appeal. (Citing Farmers' Development Co. v. Rayado Land & Irrigation Co., 18 N.M. 138, 134 P. 216.) Unless the citation, therefore, is issued in accordance with the statute, the appellate court will have no jurisdiction over the appellee or defendant in error on the return day and will be compelled to dismiss the proceeding.” (Italics ours.)

It is then said at § 265: “The necessity for the issuance and service of citation may be waived by the appellee or defendant in error, and a general appearance is construed as a waiver.” Citing Dailey v. Foster, supra; Childers v. Lahann, 18 N.M. 487, 138 P. 202.

In Crabtree v. Board of Com'rs of Socorro County, 37 N.M. 80, 18 P.2d 657, we said: “We have heretofore held, in Conley v. Davidson, 34 N.M. 421, 283 P. 52, and Robinson v. T. D. Neal Mercantile Co., 34 N.M. 436, 283 P. 52, that failure to notify within five days after taking appeal that an appeal had been taken is not jurisdictional, and that, where no showing of prejudice is made, a motion to dismiss should be overruled under the authority of section 3 of rule XIV. The last-mentioned rule provides: ‘No motion to dismiss an appeal or writ of error, strike a bill of exceptions or otherwise dispose of any cause except upon its merits, where such motion is based upon other than...