Waldo v. Beckwith

• Decision Date: 31 January 1854
• Citation: 1 N.M. 97
• Parties: DAVID WALDO, JACOB HALL, AND WILLIAM MCCOYv.HUGH M. BECKWITH.
• Court: New Mexico Supreme Court

1 N.M. 97

DAVID WALDO, JACOB HALL, AND WILLIAM MCCOY

v.HUGH M. BECKWITH.

Supreme Court of the Territory of New Mexico.

Jan. 1854.

The old Spanish law concerning pastures does not apply to one who during the winter undertakes to keep for pay a body of working oxen.

*1 APPEAL from the First Judicial District Court for Santa Fe county. The case is stated in the opinions of Benedict and Watts, JJ.

Theodore D. Wheaton, for the appellants.Ashurst and Smith, for the appellee. By Court, BENEDICT, J.:

This was a suit against the appellants as non-residents. On the thirtieth day of August, 1851, Beckwith filed his petition in the clerk's office of the district court, for the county of Santa Fe. On the same day an attachment was issued by the clerk, to John Jones, marshal, which was returned by him, “levied on eight mules, one wagon, three Colt's revolver pistols, one ditto rifle, one horse pistol, four guns, two saddles and bridles, six sets of mule harness, and one Allen's revolver pistol.”

The cause was continued from term to term until the June term of 1853. At this term it appears that publication to the defendants of notice that this action was pending against them had been duly made. The record shows that at this term the defendants moved the court to dismiss the case for the following reasons, viz:

1. There is no writ.

2. There is no sufficient writ.

3. There is no attachment bond filed or indorsed as required by law.

4. There is no sufficient bond.

5. There is no affidavit filed on which to base said suits, which motion was by the court overruled. Afterwards, on the same day, the plaintiff filed an affidavit and bond, each bearing date the twenty-ninth day of August, 1851. On the bond was the following indorsement: “The penalties and securities in the above bond are approved this twenty-second day of June, 1853, as of August twenty-ninth, A. D. 1851.

R. H. TOMPKINS. Clerk.”

The defendants filed a plea in abatement of the cause, averring that before the commencement of this suit, to wit, on the twentieth day of June, 1851, a suit was commenced and pending in the circuit court for the county of Jackson, in the sixth judicial circuit, in the state of Missouri (said circuit court having full power and jurisdiction to try and determine the same), in which the same identical cause of action in plaintiff's declaration mentioned is in dispute and pending between the same parties to this suit, as by the records and proceedings of said circuit court will fully appear.

To this plea the plaintiff demurred, and the court sustained the demurrer. The defendants then filed their answer to the plaintiff's petition in the form of general issue in assumpsit. The issue being formed, a jury was called and the parties went to trial, and the jury found a verdict for the plaintiff in the sum of three hundred and thirty dollars.

The defendants then moved the court to set aside the verdict and grant a new trial, also in arrest of judgment, both of which motions were overruled, and the court rendered judgment for the plaintiff for the amount of the verdict and his costs, and that the property levied on under the attachment be sold to satisfy the same. The defendants then filed their exceptions to the opinions of the court, and prayed and took their appeal to this court. The following are the errors assigned:

*2 1. The court erred in overruling the motion to dismiss.

2. The court erred in admitting the testimony of Caleb Sherman, and the approval of the attachment bond and filing of the original papers in the suit.

3. The court erred in allowing the bond and affidavit of the plaintiff below, together with the writ, to be filed nunc pro tunc.

4. The court erred in sustaining the demurrer to the plea in abatement.

5. The court erred in overruling the motion for a new trial.

6. The court erred in overruling the motion in arrest of the judgment.

The three first errors assigned will be considered in the same connection. The law which authorizes and prescribes proceedings by attachment against the property of a debtor in the district courts of this territory is contained among the general provisions of Kearny's code, which have been re-enacted by the legislature held in pursuance of the organic act of September, 1850.

The second section of that portion of the code, under the head of attachments, provides that a creditor, wishing to sue his debtor by attachment, may place in the clerk's office of the circuit (district) court of any county of this territory a petition, or other lawful statement of his cause of action, and shall also file an affidavit and bond; and thereupon such creditor may sue out an original attachment against the lands, tenements, goods, moneys, effects, and credits of the debtor in whosesoever hands they may be.

The fifth section is as follows: “The clerk shall judge of the sufficiency of the penalty and security in the bond. If they be approved, he shall indorse his approval thereon, and the same, together with the affidavit and petition and other lawful statement of the cause of action, shall be filed before an attachment shall be issued.”

We need no precedents to enlighten the court as to the meaning of these sections. They are clear and positive that an affidavit and bond shall be made, that the clerk shall approve the bond, that he shall indorse his approval thereon, and that these and the petition, or other lawful statement of the cause of action, shall be filed before an attachment shall be issued. Were these requirements complied with? If so, the record must show the facts, for beyond this the court will not look for evidence in the proceedings of the cause below. It shows the petition to have been duly filed August 30, 1851, stating the cause of action to be that the defendants were indebted to the plaintiff in the sum of seven hundred dollars, on account of forage, hay, corn, and fodder, and provender furnished the cattle of the defendants, etc. Nearly two years after this, at the June term, 1853, as shown by the record, the bond and affidavit were filed, and the approval of the bond then made and indorsed. It is contended that the court caused the approval and filing to be done at the June term, nunc pro tunc, in pursuance of the provisions of section 34 of an “Act regulating practice in the district and supreme courts of the territory of New Mexico, approved July 2, 1851,” and which reads as follows:

*3 “It shall be the duty of the clerk, when any paper is filed in his office, to enter immediately on the back thereof his certificate of the day on which it was filed in the words: ‘Filed in my office this - day of -, 18-,’ and sign his name as clerk to the same. But in case he should at any time neglect so to do, it may, at the discretion of the court, guided by the justice of the case, be entered nunc pro tunc. In like manner shall all other matters be performed nunc pro tunc when the ends of justice shall require it.”

It will not, we think, be urged tha the acts contemplated in this section are acts which may simply be “allowed” and “permitted” to be done by the clerk or other officers of the court, but acts to be done by the order and direction of the court itself, and when done, the record must show and contain such order. Does this record in this cause show any such order? If so, it is found in one of the bills of exceptions signed by the judge, though not sealed. These are the words: “Plaintiff was permitted to introduce the testimony of Caleb Sherman, formerly clerk of this court, for the purpose of showing the time of the filing of the papers and approval of the bond in this cause, and also the fact of said filing and approval to be marked and indorsed upon said papers and bond nunc pro tunc.” The party who excepts to the acts, opinions, or ruling of the court below, and presents his exceptions to this court for review in a bill, must so embody his facts and points that this court can clearly know what it is called upon to adjudicate. The bill above referred to speaks of a time of filing of the papers and approval of the bond, and the filing and approval to be marked and indorsed upon said papers and bond nunc pro tunc. What these papers were is not specified, and the court will not attempt to specify by inference, against the plain and unqualified showing of the record, as neither the bill of exceptions nor the record fixes upon any other time at which the bond and affidavit were filed, other than the June term, 1853. If the bond and affidavit, before the attachment issued, were delivered to the clerk, and by him received, to be kept on file, such facts are not disclosed by the record. From this it follows that the issuing of the writ of attachment was without authority, and that all of the proceedings under it were null and void. It appears that the plaintiff was permitted to introduce Caleb Sherman, a former clerk, to prove by him the time of the actual filing of the papers and approval of the bond, to which the defendants excepted.

In the thirty-fourth section of the act herein cited, we do not suppose that the legislature intended to confer upon the courts an unlimited power to exert their discretion nunc pro tunc. The rule is universal, that no act shall be done nunc pro tunc-as now for then-which shall work injustice to a party in court. If the practice is allowed of permitting a party to introduce witnesses to show that an act by the court should be done nunc pro tunc, it must also permit the adverse party to introduce counter-witnesses, and herein must result all the rules applicable to testing the credibility of oral testimony, such as impeachment, etc. In such a conflict we are of opinion there would be great danger of violating the rule above stated, and that the ends of justice, instead of being promoted, might be thwarted. In prescribing to the courts below a rule of practice by which to obtain the facts upon which to exercise their discretion in pursuance of ...