State Ex Rel. Heron v. Kool

• Decision Date: 21 July 1943
• Docket Number: No. 4769.,4769.
• Parties: STATE ex rel. HERONv.KOOL, Judge.
• Court: New Mexico Supreme Court

47 N.M. 218

140 P.2d 737

STATE ex rel. HERON

v.KOOL, Judge.

No. 4769.

Supreme Court of New Mexico.

July 21, 1943.

Mandamus proceedings by State of New Mexico on the relation of Kenneth A. Heron against the Honorable Albert R. Kool, Judge of the Second Judicial District of New Mexico, sitting as judge of the First Judicial District of New Mexico, for and in place of Honorable William J. Barker, Judge of the First Judicial District, New Mexico, to compel defendant to require that an additional bond be given in a case on appeal from a judgment of the Justice of Peace Court to the District Court.

Rule discharged and writ denied.

Where there was nothing in the record to indicate that the judge of the district court abused his judicial discretion in overruling a motion for an additional bond on appeal from a judgment of the justice court, mandamus to compel the district judge to require an additional bond was denied. 1941 Comp. §§ 26-111, and 38-917.

Kenneth A. Heron, of Chama, pro se.

Reed Holloman, of Santa Fe, for respondent.

THREET, Justice.

The relator invokes the jurisdiction of this Court to compel, by mandamus, the Honorable Albert R. Kool, Judge of the Second Judicial District, to require D. H. Gaylor to give an additional bond in a sum to cover all damages and judgment recovered in the Justice of the Peace Court of Precinct No. 17, Rio Arriba County, New Mexico, and, also, all damages and judgment that may be recovered in the district court on appeal.

Petitioner, as plaintiff, recovered judgment against D. H. Gaylor in an action of forcible entry and detainer in the Justice of the Peace Court of Precinct No. 17, Rio Arriba County, New Mexico, on the 3rd day of May, 1939. D. H. Gaylor, defendant in that case, duly appealed his cause to the District Court of Rio Arriba County, New Mexico, and filed a bond in accord with the judgment of the Justice of the Peace Court, and the statute covering such case, where the case is now pending.

On the 18th day of March, 1943, petitioner filed a motion for an additional bond, as provided under 1941 Comp., § 38-917. The motion was duly presented to the respondent, herein, who refused to grant petitioner the relief sought, and entered an order overruling and denying petitioner's motion.

Petitioner filed, in this Court, his petition praying for a peremptory writ of mandamus directing respondent to forthwith order and require D. H. Gaylor to give an additional appeal bond.

The Court, upon the filing of the petition, ordered an alternative writ of mandamus to issue. Respondent duly filed his answer to the alternative writ admitting in part, and denying in part, the allegations of the writ.

Other pleadings have been filed in the case by the respondent and D. H. Gaylor, and petitioner has filed a motion to strike. These pleadings will not be considered. Pleadings here, upon which this case will be considered, are: The alternative writ and respondent's answer thereto. 1941 Comp., § 26-111.

The sole question here is whether 1941 Comp., § 38-917 is mandatory and, therefore, the duty of the district court to require an additional bond is ministerial. If so, the writ should issue. Taos County Board of Education v. Sedillo, 44 N.M. 300, 101 P.2d 1027.

On the other hand, if the duty of the District Court under the statute is discretionary, the writ should be denied, unless there be an abuse of such discretion. 1941 Comp., § 26-104. Seward v. Denver & R. G. R. Co., 17 N.M. 557, 131 P. 980, 46 L.R.A.,N.S., 242; Carson Reclamation Dist. v. Vigil, 31 N.M. 402, 246 P. 907; 35 Am.Jur. 22, § 249.

The statute under consideration reads as follows: “On appeals taken from a judgment of a justice of the peace, the bond shall be in sufficient sum to cover all damages and judgment recovered in the justice of the peace court, as also all damages and judgment that may be rendered and recovered in the district court. And the district court may, on motion, require an additional bond to be given in any such case, and should the appellant fail to give such bond when required by the district court, within the time that may be required, then the said appeal shall be dismissed and the judgment below affirmed, and additional damages in accordance with this chapter (article) assessed, and judgment, execution and a writ of possession then given by the district court.” 1941 Comp., § 38-917.

It is significant, and may not be overlooked, that the Legislature used the word may, instead of the words must or shall, when it said “and the district court may, on motion, require an additional bond to be given in any such case,” etc.

This court in construing 1941 Comp., § 29-113, under which plaintiff may be ruled to give security for cost, and providing that upon failure to do so, the case shall abate, held that the granting or denying a motion to give security for cost, is an exercise of judicial discretion. Pilant v. S. Hirsch & Co., 14 N.M. 11, 88 P. 1129; City of Roswell v. Bateman, 20 N.M. 77, 146 P. 950, L.R.A.1917D, 365, Ann.Cas.1918D, 426; State ex rel. Lebeck v. Chavez, 45 N.M. 161, 113 P.2d 179. To the same effect see: Clark v. Bay Circuit Judge, 154 Mich. 483, 117 N.W. 1051; Turner v. Younker, 76 Iowa 258, 41 N.W. 10; Rabidon v. Muskegeon Circuit Judge, 110 Mich. 297, 68 N.W. 147; Stevens v. Sheriff, 76 Kan. 124, 90 P. 799, 11 L.R.A.,N.S., 1153, and Roff v. Miller, 189 Mich. 558, 155 N.W. 517.

In Pilant v. S. Hirsch & Co., supra, the court placed much stress upon the language of the statute in the use of the word may, instead of the words must or shall, in holding that it was within the judicial discretion of the court as to whether the bond should be required. In State v. Chavez [45 N.M. 161, 113 P.2d 186], supra, it is said, in passing upon a motion to require plaintiff to give...