Pickering v. Justice of the Peace In and For Precinct No. 2, San Juan County
| Decision Date | 28 January 1911 |
| Citation | 113 P. 619,16 N.M. 37,1911 -NMSC- 006 |
| Parties | PICKERING et ux. v. JUSTICE OF THE PEACE IN AND FOR PRECINCT NO. 2, SAN JUAN COUNTY. |
| Court | New Mexico Supreme Court |
Petition by D. H. Pickering and another for prohibition against L Current, Justice of the Peace in and for Precinct No. 2 of San Juan County, N.M. Petition denied.
Edwards & Martin, for petitioners.
This cause is here on an alternative writ of prohibition issued by one of the justices of this court on a petition filed with the clerk December 30, 1910, and made returnable on the first day of our present term. The respondent, who is a justice of the peace at Aztec, in San Juan county, a long distance from Santa Fé, and who presumably has no personal interest in the matter, has not appeared or made any return to the writ, and the petitioners have moved for judgment by default. Under the circumstances we think it unnecessary to proceed by attachment against respondent, and that we should determine from the allegations of the petition whether a writ of prohibition absolute should issue.
The allegations are that on November 17, 1910, a summons was issued by L. Current, a justice of the peace of San Juan county, to the petitioners, directing them to appear before the said justice at Aztec, in said county, at 10 o'clock a.m. November 24, 1910, to answer to a plea in assumpsit by one M. B. Scott, as assignee, that service was made on the petitioners at 3:30 p.m. of November 19th, and that judgment was rendered November 24th between 10 and 11 o'clock less than five full days from the time of service, that the petitioners failed to appear in said cause for the reason that they were misled by the justice of the peace, and that as judgment was rendered on a legal holiday, it was void.
Under section 3244, Comp. Laws 1897, it was necessary that the service of the writ be made five days before the return day the day of service or the day of return being excluded in making up the five days. Section 2900, subd. 7, Comp. Laws 1897. Service at any hour of November 19th was therefore sufficient for any hour of November 24th as a return day. There is a statute of this tesritory providing that certain days shall be holidays for commercial purposes (section 2544, Comp. Laws 1897), but none prohibiting judicial proceedings on such days. In the absence of such statutory provisions judicial acts on holidays, including judgments, are valid. 21 Cyc. 442-445. But, if the petitioners were in any way wronged by the action of the justice of the peace complained of, the ordinary remedies were open to them. They knew of the alleged injurious acts on November 26th, as their affidavit in this cause shows, and they then had the right to appeal, and, if that had become necessary,...
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