Quintana v. R. H. Tomkins.

• Court: New Mexico Supreme Court
• Writing for the Court: By Court, BAKER, C. J.:
• Citation: Quintana v. Tomkins, 1 N.M. 29, 1853 NMSC 1 (N.M. 1853)
• Decision Date: 31 January 1853
• Parties: NICOLAS QUINTANAv.R. H. TOMKINS.

1 N.M. 29

NICOLAS QUINTANA

v.R. H. TOMKINS.

Supreme Court of the Territory of New Mexico.

Jan. 1853.

That neither the treaty between the United States and Mexico nor the laws of the United States prescribed the means whereby Mexican citizens remaining in the Territory of New Mexico might elect to retain Mexican citizenship did not deprive Mexican citizens of right to make such election which was granted by the treaty.

*1 APPEAL from Santa Fe county. The case is stated in the opinion.

M. Ashurst, for the appellee. By Court, BAKER, C. J.:

At an election for justices of the peace, held in and for Santa Fe county, on the first Monday of September, 1852, the appellant received a plurality of votes and was returned by the probate judge as having been duly elected as justice of the peace. The appellee, having also received a number of votes for the same office, contested the election of the appellant, and the probate judge, upon the hearing of the case, gave judgment in favor of the appellant; thereupon the appellee appealed to the district court, and at the September term a motion was made by the appellant, Quintana, to dismiss the appeal, which motion was overruled, and, upon a hearing of the cause, that court reversed the judgment of the probate judge, and adjudged that the appellant was not a citizen of the United States, and was therefore disqualified to hold the office of justice of the peace. To reverse this judgment of the district court the appellant has brought the case to this court, by appeal.

Three grounds are urged for a reversal: 1. Overruling the motion to dismiss the appeal; 2. Overruling the objections of appellant to the admission of the testimony on the part of the appellee upon the hearing of the cause; and, 3. The rendering of the judgment for the appellee.

The following are the various sections of the law prescribing the appellate jurisdiction of the courts, regulating appeals, and prescribing the mode of determining cases of contested elections: Every person aggrieved by any judgment or decision of any circuit court in any civil case may make his appeal to the superior court: R. C., act 49, sec. 9. The superior court shall have appellate jurisdiction in all cases, both civil and criminal, which may be determined in the circuit court: Id., sec. 8.

The circuit courts in the several counties shall have *** appellate jurisdiction from the judgments and orders of the prefects and alcaldes in all cases not prohibited by law, and shall possess a superintending control over them: Id., sec. 18.

Appeals from the judgments of the prefects shall be allowed to the circuit court in the same manner and subject to the same restrictions as in case of appeals from the circuit court to the superior court: Id., sec. 22.

The fiftieth section of the election law acts, 203, provides that the election of justices of the peace may be contested before the probate judge, and that the contest shall be heard and determined in a summary manner. The fifty-first section provides that if a contested election be pending, the person holding the certificate of election shall take possession and discharge the duties of the office until the contest is decided.

The opinion of the probate judge in the transcript of the record from his court is substantially a judgment, and determines the matter in contest, the citizenship of the appellant, and his due election as justice of the peace.

*2 There is nothing in the objection that it was not rendered at a regular term of the probate court, for the statute requires the matter to be heard and determined in a summary manner, and the decision could as regularly be made in vacation as in...