State Ex Rel.Burg v. City of Albuquerque

• Decision Date: 12 February 1925
• Docket Number: No. 2861.,2861.
• Citation: 30 N.M. 424,234 P. 1012
• Parties: STATE ex rel.BURGv.CITY OF ALBUQUERQUE et al.
• Court: New Mexico Supreme Court

30 N.M. 424

234 P. 1012

STATE ex rel.BURG

v.CITY OF ALBUQUERQUE et al.

No. 2861.

Supreme Court of New Mexico.

Feb. 12, 1925.Rehearing Denied April 29, 1925.

Syllabus by the Court.

The cost bond was duly filed, and was not ineffectual because the sureties did not subscribe an affidavit of justification. Bank of Commerce of Taiban v. Duckworth, 26 N. M. 437, 194 P. 367.

It is not required by the statutes of New Mexico that notice be given of the filing of a cost bond, nor that service thereof be made upon the adverse party.

Where notice is given that a bill of exceptions will be presented to the court to be settled and signed at a time and place stated, and the excepting party, through his fault, procures the signing thereof at a different time and place without waiver by the adverse party, and the circumstances not falling within the exceptions of section 4181, Code 1915, as construed in Ojo Del Espiritu Santo Co. v. Baca, 28 N. M. 509, 214 P. 768, such bill of exceptions will be stricken on motion as having been settled and signed without proper notice.

Additional Syllabus by Editorial Staff.

“Appeal” designates generally any method provided by statute for removing a case from an inferior to a higher court for review, including proceeding under statute by petition in error.

Under Supreme Court Rule 6, § 18, filing motion to dismiss appeal, tolls limitations on filing brief on merits.

Appeal or Writ of Error from District Court, Bernalillo County; Hickey, Judge.

Suit by the State of New Mexico, on the relation of John Baron Burg, against the City of Albuquerque and others. Judgment for defendants, and plaintiff appeals or brings error. On motions to dismiss appeal and to strike bill of exceptions. Motion to dismiss appeal denied, and motion to strike bill of exceptions sustained.

Under Supreme Court rule 6, § 18, filing motion to dismiss appeal, tolls limitations on filing brief on merits.

Rodey & Rodey and John Baron Burg, all of Albuquerque, for plaintiff in error.

H. B. Jamison, of Albuquerque, for defendants in error.

BICKLEY, J.

[1] This case is now before the court on the motion of defendants in error to dismiss the appeal or writ of error filed September 27, 1923, and upon its motion designated “amended motion to dismiss the appeal or writ of error,” and filed October 19, 1923, and upon the motion of defendants in error to strike the bill of exceptions.

The two motions to dismiss taken together make the claim that no cost bond, as required by the statutes, has been filed in this cause within the time required by law, and that no cost bond has been filed with sureties qualified as in other cases.

The record shows that on June 13, 1923, there was duly issued from this court the writ of error to the Second judicial district court of Bernalillo county, and that thereafter on the same day a cost bond was filed on behalf of plaintiffs in error. This bond was duly “approved both as to form and sufficiency of sureties.” From the language of the amended motion to dismiss, and from the arguments made, it does not appear that the defendants in error now claim that the cost bond so filed was not filed in time, but that such bond was not sufficient compliance with the requirements of the statutes applicable thereto. It is claimed by defendants in error that the cost bond is insufficient because it is not dated. The bond purports to have been executed on the “------ day of June, A. D. 1923.” It recites, “Whereas a writ of error to the district court of Bernalillo county has been granted by the Supreme Court of the State of New Mexico”; so it is apparent that it was executed on June 13, 1923, after the writ of error was allowed. The same may be said as to the absence of date in the acknowledgment. The bond is further criticized because it binds the principal and sureties to pay all costs that may be adjudged against the principal “on said appeal.”

[4] It is true that the expressions “appeal” and “writ of error” are both used in this bond. The Wyoming Supreme Court in Caldwell v. State, 12 Wyo. 206, 74 P. 496, says:

“The word ‘appeal”’ designates “generally any method provided by statute for removing a case from an inferior to a higher court for review, including the proceeding under the statute by petition in error.”

It is also claimed that, as the sureties do not make any statement to advise the clerk of the court as to their qualifications as sureties, this omission renders the bond fatally defective. This argument is based on section 15, c. 43, Laws 1917, p. 147, and it is claimed that the phrase therein used, “file * * * with the clerk of the Supreme Court, in case of writ of error, a bond with sufficient sureties qualified as in other cases,” makes it necessary that the sureties should, by affidavit of justification, show their qualifications. This court took a contrary view in Bank of Commerce of Taiban v. Duckworth, 26 N. M. 437, 194 P. 367, in construing the section of the statute invoked by these defendants in error.

Defendants in error complain that they had no notice of the filing of the bond and that no copy thereof was served on them. It is not required under our statutes that notice be given of the filing of a cost bond, nor that service thereof be made upon the adverse party.

This court, in the case of Bank of Commerce of Taiban v. Duckworth, supra, said:

“If the clerk accepts an appeal bond and the appellee regards the surety thereon as insufficient, his remedy is a motion and rule for additional security.”

Defendants in error are in about the same situation as were the respondents in the case of De Roberts v. Stiles et al., 24 Wash. 611, 64 P. 795, where the court said, respecting respondents' move to dismiss the appeal on the ground that appellant had not served respondents with a copy of the bond or notice of the filing thereof:

“To make the appeal effectual, an appeal bond must be filed at or before the time when notice of appeal is given or served, or within five days thereafter. 2 Ballinger's Ann. Codes & St. § 6505. Again, ‘Any respondent may except to the sufficiency of the surety or sureties in an appeal bond within ten days after the service on him of the notice of appeal or within five days after the service on him of the bond or written notice of the filing thereof.’ Id. § 6510. Notice of appeal having been served, respondents were charged with knowledge, under section 6505, supra, that within five days thereafter appellants must file an appeal bond in order to make their appeal effectual. The section does not provide that the bond or written notice of the filing thereof shall be served upon respondents. The only real purpose of such service would be to give respondents an opportunity to except to the sufficiency of the bond. But section 6510, supra, gives to respondents ten days from the date of service of the appeal notice to make such objection, and they must know that at the expiration of five days from the service of the notice of appeal an appeal bond is on file, and they have, therefore, at least five days more within which to call at the clerk's office, examine the bond, and lodge their objections thereto.”

For the reasons stated, the motions to dismiss the appeal for lack of proper cost bond are denied.

[2] 2. We will now consider the motion of defendants in error to strike the bill of exceptions. This motion is based on two grounds, as follows:

“Because it does not appear upon the face of the record that the five days' notice to the defendants in error or their attorney required by the statutes of the state of New Mexico was ever given.

Because it affirmatively appears from said record that the only notice ever given was notice given on the 4th day of August, 1923, that the transcript, record, etc., would be taken up for signature on Thursday, the 9th, at 10 o'clock a. m. under section 25 of the 1917 Practice Act, page 151; whereas, the bill of exceptions was signed on the 18th day of August, 1923, under section 27, providing for bills of exception.”

The record, at page 20, shows the following:

“I, the undersigned, attorney for the above city of Albuquerque, and the commissioners thereof, hereby acknowledge service on me this 4th day of August, 1923, of this notice that the matter of the signing of the transcript, record, etc., will be taken up before the district judge of Bernalillo county, on Thursday, the 9th inst., at 10 o'clock a. m. at the courthouse, for his signature and certificate, under section 25 of the Practice Act of 1917, page 151, Session Laws. H. B. Jamison, Defendants in Error Attorney for as Aforesaid.”

It is claimed by defendants in error that, because the acknowledgment of notice heretofore quoted referred to section 25 of the Practice Act of 1917 (Laws 1917, c. 43), and not to section 27 of said act referring to bills of exceptions, he had no notice of what the parties might present or what the court might do by virtue of said section 27. The office of the certified transcript of the stenographer's notes provided for by section 25 is quite similar to that performed by the bill of exceptions provided for by section 27, and if this were the only objection to the notice and the subsequent proceedings thereunder, we might be able to compose the confusion of the reference to sections 25 and 27; but...