Secou v. Leroux

• Decision Date: 31 January 1866
• Citation: 1 N.M. 388
• Parties: JOSE SECOU ET AL.v.LUIS LEROUX AND ESTEBAN ORTIZ.
• Court: New Mexico Supreme Court

1 N.M. 388

JOSE SECOU ET AL.

v.LUIS LEROUX AND ESTEBAN ORTIZ.

Supreme Court of the Territory of New Mexico.

Jan. 1866.

The facts upon which to base an order for an act to be done nunc pro tunc should be ascertained from the records of the court, and from its immediate officers, and not from evidence aliunde, as by the testimony of a former clerk.

*1 APPEAL from the district court for Mora county. The opinion states the case.

S. B. Elkins, for the appellants.C. P. Clever, for the appellees. By Court, BENEDICT, C. J.:

This, like the case of Tipton v. Cordova, 1 N.M. 383, was an appeal dismissed from the district court, because no stamp had been affixed to the bond in the proceeding of appeal. The appellants moved for permission to affix a stamp nunc pro tunc. This the court refused, and dismissed the appeal, and the appellants assign for error this action of the court. The like principles and reasonings asserted in the case of Tipton v. Cordova apply in this case. One feature of fact, however, varies from that case. In this the appellants moved, in the district court, for leave to affix a revenue stamp to the appeal bond nunc pro tunc, and the refusal by the court is assigned for error. In the other case no such motion was made, but the party stamped papers as he willed.

In the court below, the appellants seem to have misconstrued the practice when a thing may be done nunc pro tunc. It is a thing, say the books, “done at one time which ought to have been done at another.” It is used when a court has done some act, or some one of its immediate ministerial officers, which from some omission, by neglect, forgetfulness, or some other cause, was not entered of record or otherwise noted, at the time the order or judgment was made by the court, or should have been made to appear upon the papers or proceedings by the ministerial officer.

Our practice act (see Rev. Stat., sec. 34, p. 198,) says: “It shall be the duty of the clerk, when any paper is filed in his office, immediately to enter on the back thereof his certificate of the day on which it was filed, in the words, filed in my office, this - day of -, 18-, and sign his name as clerk to the same. But in case he should at any time neglect so to do, it may, at the discretion of the court, guided by the justice of the case, be entered nunc pro tunc, when the ends of justice may require it.”

The phrase nunc pro tunc signifies now for then, or, in other words, a thing is done now, which shall have the same legal force and effect as if done at the time when it ought to have been done. It is to be done at the discretion of the court, and the refusal is not a matter of error to be examined and corrected in this court. The district court is to judge whether the ends of justice require it to be done. This court said at the January term, 1854, in the case of Waldo, Hall & Co. v. Beckwith,, 1 N.M. 97, referring to the section quoted: “We do not suppose that the legislature intended to confer upon the courts an unlimited power to exert their discretion nunc pro tunc. The rule is universal that no act shall be done nunc pro tunc, or now for then, which shall work injustice to a...