Wood v. Sloan

• Citation: 137 P. 578,18 N.M. 290,1913 -NMSC- 078
• Parties: WOOD ET AL. v. SLOAN. RIO PUERCO IRRIGATION CO. v. JASTRO (TWO CASES). CANAVAN v. CANAVAN.
• Decision Date: 29 November 1913
• Court: New Mexico Supreme Court

137 P. 578

18 N.M. 290, 1913 -NMSC- 078

WOOD ET AL.
v.
SLOAN.

RIO PUERCO IRRIGATION CO.
v.
JASTRO (TWO CASES).

CANAVAN
v.
CANAVAN.

Supreme Court of New Mexico

November 29, 1913

Error to District Court, Santa Fé County; Abbott, Judge.

Action by J. B. Wood and J. A. Davis, copartners as the Wood-Davis Hardware Company, against J. H. Sloan. There was a judgment for defendant, and plaintiffs bring error. On motion to dismiss, whereupon plaintiffs filed a motion to enter nunc pro tunc an order confirming the issuance of their writ of error. Motion to dismiss denied, and order of allowance entered nunc pro tunc.

See, also, 131 P. 493.

Wilson, Bowman & Dunlavy, of Santa Fé, for plaintiffs in error.

Renehan & Wright, of Santa Fé, for defendant in error.

PARKER, J.

This cause is here on writ of error. A motion was filed by defendant in error to dismiss the writ on the ground that the same had been issued by the clerk of this court without the direction of this court or a justice thereof. Thereupon plaintiff in error filed a motion to enter nunc pro tunc, as of the date of the issuance of the writ of error, an order approving, allowing, and confirming its issuance.

In Farmers' Development Co. v. Rayado Land & Irrigation Company, 134 P. 216, we had this matter before us. A discussion and decision of it was entirely unnecessary to a decision of that case; the plaintiff in error having failed for want of a cost bond, as is pointed out in the opinion. For the purpose of settling the practice, however, we did discuss this matter in that case, and held that section 3 of article 6 of the Constitution repealed, pro tanto, section 3 of chapter 57, Laws of 1907, regulating the issuance of writs of error. This holding was correct, and we do not desire now to depart from it in any particular. The holding was that such writs must be issued by "direction of the court or any justice thereof."

The further question is presented in this case, not mentioned or argued in that case, viz.: What amounts to a "direction" by the court or any justice thereof? It is to be remembered that for years, under the territorial [137 P. 579.] régime, it had been the uniform practice, provided by law, for the clerk to issue these writs upon the filing of a præcipe for the same by the interested parties. Upon the advent of...