Sacramento Valley Irr. Co. v. Lee

• Citation: 113 P. 834,15 N.M. 567
• Parties: SACRAMENTO VALLEY IRR. CO.v.LEE et al.
• Decision Date: 29 August 1910
• Court: Supreme Court of New Mexico

15 N.M. 567

113 P. 834

SACRAMENTO VALLEY IRR. CO.

v.LEE et al.

Supreme Court of the Territory of New Mexico.

Aug. 29, 1910.Rehearing Denied Jan. 5, 1911.

Syllabus by the Court.

Where the plaintiff in error files a transcript of the record, but not, as required by section 21, c. 57, Laws 1907, 10 days before the return day of the writ, and also files assignments of error, but not before return day of such writ, a motion to dismiss the writ of error, on those grounds, not made until after such filing, will be denied. Armijo v. Abeytia, 5 N. M. 533, 25 Pac. 777.

Section 1, c. 120, Laws 1909, amending section 20, c. 57, Laws 1907, making the return day of a writ of error 130 days from date of the writ, instead of 90 days as formerly, deals with procedure only, and prima facie applies to all actions-those which have accrued or are pending and future actions.

A decree granting an injunction and appointing a receiver for an insolvent corporation under the provisions of sections 72 and 73 of chapter 79 of the Laws of 1905 is a final decree within the terms of the organic act, relating to appeals and writs of error.

The complaint in a proceeding under the provisions of section 72, c. 79, Laws 1905, which merely alleges “that the said corporation is insolvent and has suspended its ordinary business for want of funds to carry on the same,” does not sufficiently state the facts and circumstances of such insolvency to make a case within the purview of the statute. The facts and circumstances must be set out in the complaint from which the insolvency of the company shall appear.

Error to District Court, Otero County; before Justices Edward A. Mann and John R. McFie.

Bill by Oliver M. Lee and others against the Sacramento Valley Irrigation Company. Judgment for plaintiffs, and defendant brings error. Reversed and remanded.

The complaint in a proceeding under the provisions of Sec. 72, Chapter 79 of the laws of 1905, which merely alleges: “That the said corporation is insolvent and has suspended its ordinary business for want of funds to carry on the same,” does not sufficiently state the facts and circumstances of such insolvency to make a case within the purview of the statute. The facts and circumstances must be set out in the complaint from which the insolvency of the company shall appear.

A. B. Renehan and Geo. W. Prichard, for plaintiff in error. H. M. Dougherty, for defendants in error.

WRIGHT, J.

The defendants in error herein submit two questions for dismissal of the writ of error which must be first considered.

1. The appeal was not perfected within the time required by law: (a) Because no assignment of error was filed within the time required by law. (b) Because the transcript of the record was not filed within the time required by law. Section 21 of chapter 57 of the Laws of 1907 requires that the plaintiff in error shall file in the office of the clerk of the Supreme Court at least 10 days before the return day of any writ of error a complete transcript of the record, and shall assign error and serve such a copy of such assignment of error on the opposite party, and file a copy with the clerk of the Supreme Court on or before the return day to which the writ is returnable, which said assignment of error shall be written on a separate paper and filed in the cause, and shall also be copied in the brief of the plaintiff in error. In default of such assignment of error in finding the same. the appeal or writ of error may be dismissed and the judgment affirmed, unless good cause for failure be shown. No attempt was made by plaintiff in error in this case to comply with this requirement of the statute within the time provided, nor was there any excuse made by him for not so doing. This writ was returnable under the law on 21st day of March, A. D. 1909. On March 18, 1909, six days after the time required for filing transcript, plaintiff in error filed its transcript. On April 12, 1909, defendants in error filed their motion to dismiss the writ of error for failure to file transcript and assignment of error within the time provided by law. However, on March 18, 1909, the Legislature passed an act enlarging the return date on appeals and writs of error from 90 to 130 days, thereby extending the return day of the writ of error herein 40 days from March 21, 1909, and beyond the 12th of April, 1909, the same being the date on which the defendants in error filed their first motion to dismiss. “Where a new statute deals with procedure only, prima facie it applies to all actions-those which have accrued or are pending and future actions.” Sutherland's Statutory Construction, § 674, and cases cited. Plaintiff in error filed its assignments of error on July 14, 1909, and defendants in error renewed their motion to dismiss on August 2, 1909. Under the foregoing statements of facts, it appears that the defendant in error permitted the plaintiff in error to cure its default both as to the transcripts and assignments of error before taking action, and under the decision of this court in Armijo v. Abeytia, 5 N. M. 533, 25 Pac. 777, the motion to dismiss for failure to file transcript and assignment of error within the time fixed by law must be overruled.

2. The second ground for dismissal is that the judgment and decree granting the injunction and appointing a receiver in this case is not final, and therefore not appealable. Under the organic act, appeals from the district court to the Supreme Court are limited to final judgments and decrees. A determination of what is a final judgment or decree is often a close question. The leading case in the United States courts is Forgay et al. v. Conrad, 6 How. 201, 12 L. Ed. 404: “And when the decree decides the right to the property in contest, and directs it to be delivered up by the defendant to the complainant, or directs it to be sold, or directs the defendant to pay a certain sum of money to the complainant, and the complainant is entitled to have such decree carried immediately into execution, the decree must be regarded as a final one to that extent, and authorizes an appeal to this court, although so much of the bill is retained in the circuit court as is necessary for the purpose of adjusting by a further decree the accounts between the parties pursuant to the decree passed.” The court recognizes the doctrine laid down in this case, and approves it in Thomson v. Dean, 7 Wall, 345, 19 L. Ed. 94; Railroad Co. v. Bradley, 7 Wall. 575, 19 L. Ed. 274; Lewisbury Bank v. Sheffey, 140 U. S. 445, 11 Sup. Ct. 755, 35 L. Ed. 493. In the case of Keystone Manganese & Iron Co. v. Martin, 132 U. S. 91, 10 Sup. Ct. 32, 33 L. Ed. 275, Mr. Justice Blatchford collects and discusses the various decisions upon this question as to what is a final decree. In the case of Lewisbury Bank v. Sheffey, cited supra, the court, in referring to Keystone Manganese & Iron Co. v. Martin, says: “It is there shown that, where the entire subject-matter of suit is disposed of by a decree, the very fact that accounts remain to be adjusted and the bill is retained for that purpose does not deprive the adjudication of its character as a final and appealable decree.” The Supreme Court of Michigan considered this question of what is a final decree in the case of Barry v. Briggs, 22 Mich. 201 (syllabus): “Appeal in chancery. Interlocutory order or decree. The effect produced by adjudication in a chancery suit upon the rights and interests of the parties is a better test of its character, whether it be a merely interlocutory order or a decree, than the stage of the cause at which it is made; and, whenever a legal right is divested by an order of a court of chancery, an appeal lies to determine whether it is legal or unauthorized.” This is the leading case in Michigan, and is universally followed by the courts of that state. In the case of Ogden City v. Bear Lake & River Waterworks & Irrigation Co., 16 Utah, 440, 52 Pac. 697, 41 L. R. A. 305, the Supreme Court of Utah went into this question very fully, and, while the facts in that case are not identical with the facts of the case at bar in that the receivership in the Utah case was ancillary to the main case, while in the case at bar the proceeding for the appointment of a receiver is statutory and the sole and only proceeding before the court, the reasoning of the court therein applies to the case at bar. It appears, therefore, that there are two distinct lines of cases upon the question of what constitutes a final decree. The United States cases, which, of course, are the controlling authority in this jurisdiction, hold that no judgment or decree will be regarded as final within the meaning of the statutes in reference to appeals, unless all issues of law and fact necessary to be determined were determined and the case completely disposed of so far as the court had power to dispose of it. United States cases, cited supra. See, also, Jung v. Myer, 11 N. M. 378, 68 Pac. 933. The rule, however, has been qualified to the extent that the retention of the case by the court after decree for the purpose of distribution of funds, etc., even though other and incidental decrees relating to the subject-matter of the original decree and involving some of the same issues may be necessary in order to finally dispose of the case (Keystone Manganese & Iron Co. v. Martin; Lewisbury Bank v. Sheffey, cited supra) will not destroy its character as a final decree from which an appeal may be taken. On the other hand, the rule laid down by the Michigan case looks rather to the effect produced by the adjudication and decree upon the rights and interests of the parties than the stage of the cause at which the decree is made.

In the case at bar the application for an injunction and the appointment of a receiver is an original statutory proceeding. The granting of the injunction and the appointment of the receiver depends solely upon the finding of the court, upon the...