State Ex Rel. Divelbiss v. Raynolds

• Decision Date: 06 May 1913
• Citation: 132 P. 249,17 N.M. 662
• Court: New Mexico Supreme Court
• Parties: STATE EX REL. DIVELBISSv.RAYNOLDS, DISTRICT JUDGE.

17 N.M. 662

132 P. 249

STATE EX REL. DIVELBISS

v.RAYNOLDS, DISTRICT JUDGE.

Supreme Court of New Mexico.

May 6, 1913.

Syllabus by the Court.

Mandamus will not lie to compel a district judge to sign and settle a bill of exceptions, where such bill was not tendered until after the return day of the appeal, as the trial judge is not authorized to settle a bill of exceptions tendered less than ten days before the return day.

Application for writ of mandamus by the State, on the relation of Kate May Divelbiss, against Herbert F. Raynolds, District Judge. Writ denied.

Mandamus will not lie to compel the district judge to sign and settle a bill of exceptions tendered after the return day of the appeal in violation of Laws 1907, c. 57, § 21.

Wilson & Lewis, of Albuquerque, for relator.

ROBERTS, C. J.

This is an original proceeding in mandamus, instituted by the relator against the respondent, as judge of the Second judicial district of the state of New Mexico, to compel said judge to settle and sign a bill of exceptions, in a certain cause theretofore heard in the district court of Bernalillo county, by said judge, in which the court had entered judgment against the relator, from which judgment relator sought to appeal to this court. The prayer of the petition was that said judge be “commanded and directed to at once complete the record of the cause by certifying and signing some statement of the testimony of the material facts taken in said cause and that said statement of testimony be made a part of the transcript of the record to be delivered to the defendant to be filed in this court,” etc. The evidence was not taken by a stenographer, and of course could only be made a part of the record by a bill of exceptions. The return to the alternative writ sets forth the following facts, which are admitted to be true:

The cause was decided and judgment entered on the 26th day of February, 1912. On the same day defendant sued out an appeal to the Supreme Court, which said appeal was, on said day, granted by the district court. No supersedeas bond was given within the 60 days allowed by statute, nor was a cost bond filed within 30 days as required by section 14 of chapter 57, S. L. 1907; such bond not being filed until the 14th day of October thereafter. No application was made to the court to extend the return day of the appeal or the time of settling and signing a bill of exceptions, nor was any action taken to have a bill of exceptions...