State Ex Rel. Heron v. Dist. Court of First Judicial Dist. Within

• Decision Date: 12 August 1942
• Docket Number: No. 4699.,4699.
• Citation: 46 N.M. 290,128 P.2d 451
• Parties: STATE ex rel. HERONv.DISTRICT COURT OF FIRST JUDICIAL DIST. WITHIN AND FOR RIO ARRIBA COUNTY et al.
• Court: New Mexico Supreme Court

46 N.M. 290

128 P.2d 451

STATE ex rel. HERON

v.DISTRICT COURT OF FIRST JUDICIAL DIST. WITHIN AND FOR RIO ARRIBA COUNTY et al.

No. 4699.

Supreme Court of New Mexico.

Aug. 12, 1942.

Original prohibition proceeding by the State of New Mexico, on the relation of Kenneth A. Heron, against the District Court of the First Judicial District of the State of New Mexico within and for the county of Rio Arriba, and another, to restrain the respondents from proceeding further in a cause pending in that court.

Alternative writ discharged.

Whether written answer was required in forcible entry and detainer proceeding in justice court, and whether defendant upon failing to file one was entitled to file one in district court upon appeal were matters within district court's jurisdiction, and could not be relied upon as grounds for writ of prohibition restraining district court from proceeding with the appeal. Comp.St.1929, §§ 79-501, 79-508.

Kenneth A. Heron, of Chama, for petitioner.

Arthur Livingston, of Santa Fe, for respondent.

SADLER, Justice.

Petitioner was awarded an alternative writ of prohibition against the district court of the first judicial district for Rio Arriba County and against the Honorable Bryan G. Johnson as judge thereof for the trial of the cause to be mentioned, restraining respondents from proceeding further in that certain cause pending in said court entitled Kenneth A. Heron, Plaintiff, v. Patsy Kelly, Defendant, numbered 3814 on its civil docket and directing respondents to show cause before this court on a day named why said writ should not be made permanent. The matter was argued orally following the return day of the writ and is now before us for decision.

The controlling facts as gathered from the writ, subsequent responsive pleadings and evidence adduced at the hearing will now be stated. The cause is docketed below as an appeal to the district court from a judgment in forcible entry and detainer rendered by the justice of the peace of Precinct No. 17 in Rio Arriba County. The defendant in the cause appeared personally in the justice court and also was represented at the hearing by another who acted as her attorney. No written answer was filed before the justice of the peace, only an oral answer of general denial being interposed. After the taking of evidence a judgment in plaintiff's favor was entered, ousting defendant and awarding damages of one hundred dollars. The judgment recited the presence and appearance of each party and that each was represented as well by another acting as attorney.

Judgment was entered on April 20, 1939. On the same day the defendant was allowed an appeal to the district court. On April 27, thereafter, the defendant filed her appeal bond with the justice of the peace in double the amount of the judgment and costs, bearing the signatures of the defendant and two sureties and also the several justifications and acknowledgments of the sureties. No claim is made that the bond is not in proper form and lawfully conditioned. The justice of the peace accepted the bond without comment and filed same. Subsequent to filing of the bond but on the same day, the plaintiff filed with the justice of the peace a certificate of the county treasurer that the names of the sureties did not appear on the tax rolls of Rio Arriba County. On April 29, one day before expiration of the time for filing an appeal bond, on a chance meeting of the justice of the peace with the attorney for the defendant, the latter was verbally notified that the sureties were insufficient. The following undated endorsement appears on the bonds: “Securities insufficient, Thereby not approved. Isaac Martinez.” The defendant's attorney thereupon requested the return of the bond on file to the end that one with sufficient sureties might be supplied. This request was denied.

The defendant then moved under 1929 Comp., § 79-508, by appearing before the district clerk and securing issuance of the writ therein described for transfer of the cause to the district court on appeal. Bond was filed in purported compliance with the requirements of this statute, following which the papers in the case were transmitted to the clerk of the district court and the case docketed as an appeal. In thus invoking the provisions of § 79-508, the defendant treated the action of the justice of the peace in relation to the bond filed with him as amounting to a refusal of an appeal.

Thereafter and on May 29, 1939, the plaintiff moved to dismiss the appeal which motion was denied. Subsequently, the defendant filed with the papers in the case in the district court her written answer of general denial. The plaintiff thereupon moved to strike same as not filed in time. Both motions were denied. The district judge threatening to proceed to trial, the plaintiff as petitioner asks this court to restrain permanently any further proceedings in the cause. We issued the alternative writ as already shown. The principal grounds for the writ, briefly summarized, are:

1. That the defendant had not perfected her appeal in the manner provided by statute.

2. That the defendant had failed to answer the complaint in the justice court, had there suffered a default judgment and that by reason thereof the district court has no power to try and adjudicate the cause on issues raised for the first time in the district court.

The question here, as always when we are asked to issue the writ of prohibition, is one of jurisdiction. Once we determine that question adversely to petitioner, all claims of error and of irregularity become unimportant in such a proceeding as this. Considered in the light of this controlling principle, we think the petition has failed to make out a case for the issuance of the writ.

[1] In answer to the alternative writ the respondents have presented dual objections to the relief prayed. They say that the district court has jurisdiction of the appeal under either of two statutes, viz., (1) 1929 Comp., § 79-508, or (2) 1929 Comp., § 79-501, because, as to the latter section, the defendant having tendered a good and sufficient bond, the appeal was accomplished when the justice of the peace gave tacit approval thereto by accepting and filing the same without objection. Passing the first ground urged as a defense, we think the second is decisive. The bond filed with the justice of the peace met all statutory requirements as to form. At least, no complaint as to insufficiency in this regard is urged. It was signed by the defendant and her sureties and properly justified and acknowledged by them. It must be deemed to have had the approval of the justice of the peace under the facts before us, even though he failed to endorse thereon his formal approval. It was entitled to such approval as a matter of law save as to sufficiency of sureties. As to this, his receipt of the bond and entry of its filing on his docket without comment or indication of any desire to inquire touching the sureties, would justify any reasonable person in the belief it was acceptable. Under the circumstances, it will be deemed approved as of the time it was thus filed. The justice of the peace could not defeat the appeal or withhold jurisdiction from the district court to entertain same by subsequently disapproving the bond when the time for filing same had expired, or so near its expiration as to render doubtful defendant's ability to substitute another bond within such time.

[2] Both reason and authority support the proposition that where a party seeking to appeal has done or attempted to do all that the law requires of him to accomplish same, his right to...