Town of Albuquerque v. Zeiger.

• Decision Date: 31 January 1891
• Parties: TOWN OF ALBUQUERQUEv.ZEIGER.
• Court: New Mexico Supreme Court

5 N.M. 518

25 P. 787

TOWN OF ALBUQUERQUE

v.ZEIGER.

Supreme Court of the Territory of New Mexico.

Jan. Term, 1891.

Error to district court, Bernalillo county.

Under the statute requiring the record on a writ of error to be filed in the supreme court at least 10 days before the first day of the term, either the day of filing or the first day of the term may be included in the computation of the 10 days.

H. C. Collier, for plaintiff in error.

Neill B. Field, for defendant in error.

FREEMAN, J.

The defendant in error filed his bill in the court below against the plaintiff in error and one Jose L. Perea, sheriff of Bernalillo county, to enjoin the collection of certain taxes assessed against him for the improvement of a street in said town of Albuquerque. The defendants below demurred, and the demurrer was overruled. Electing to stand on their demurrer, the injunction was made perpetual, to which ruling of the court they prayed and obtained an appeal. The appeal, however, was not prosecuted, and the case was afterwards brought to this court by writ of error sued out by the town of Albuquerque only; its co-defendant, the sheriff, declining to prosecute the writ. The defendant in error now moves to dismiss the writ of error for the reason, among others, that both of the defendants in the lower court do not join in the writ.

It is apparent that there are but two parties who have any substantial interest in the present litigation, viz., the town of Albuquerque, the plaintiff in error, and Zeiger, the defendant in error. To the sheriff, the other defendant below, it is a matter of trifling concern. Beyond the matter of commission on the tax enjoined, he has no interest whatever in the result. He was a necessary party defendant, because, as sheriff, he was proceeding, or was about to proceed, to enforce the collection of the supposed illegal assessment. It is insisted by the defendant in error that he is also a necessary party to this proceeding, for the reason that as he stands enjoined by a decree of the court, which he does not seek to disturb, a dissolution of the injunction as to his co-defendant below will not have the effect of dissolving the injunction as to him, and that therefore the town would take nothing by such judgment here; that a judgment dissolving the injunction as to the town, and leaving it in force as to the officer, would be barren of any practical result. We do not so regard the law. If it should appear to this court that the injunction was improvidently granted, and that the plaintiff in error is entitled to collect the tax, it would seem to be a hardship to deprive it of the power to enforce the collection on account of the indifference of the officer. “Where the officers of a corporation are joined with it as co-defendants in a bill for discovery, and for an injunction against an action brought by the corporation, the injunction may be dissolved upon the coming in of the answer of the corporation, although its officers have not answered. So, when an injunction is obtained against several defendants, restraining them from prosecuting a joint action at law, some of whom answer and obtain a dissolution as to themselves, and the others afterwards file their answer, but neglect to move to dissolve, those who have already procured the dissolution as to themselves may have the injunction dissolved as to their co-defendants.” High, Inj. § 1534. A similar doctrine is laid down in the case of ...