GAUSS-LANGENBERG HAT CO. V. RATON NAT'L BANK, 1912-NMSC-026, 17 N.M. 233, 124 P.
794 (S. Ct. 1912)
THE GAUSS-LANGERBERG HAT CO., Plaintiff
in Error,
vs.
THE RATON NATIONAL BANK, Defendant in Error
SUPREME COURT OF NEW MEXICO
1912-NMSC-026, 17 N.M. 233, 124 P. 794
Error to the District Court of Colfax
County.
1. Where the record on writ of error fails to contain the
writ of error, no jurisdiction exists in this court to entertain the proceeding;
and it will be dismissed.
2. Where plaintiff filed his motion for leave to file
assignments of error, before the defendant moved for the dismissal of the cause
for failure to file assignments of error, the record is clear for the granting
of plaintiff's motion to cure his default by filing assignments of error.
{*234} OPINION OF THE
COURT.
{1} The defendant in error on
January 30, 1912, filed its motion to dismiss the writ of error in this cause
because of the failure of the plaintiff in error to file its assignment of
errors on or before the return day of the writ, as required by sec. 21, chap.
57, laws of 1907. That statute provides that if the plaintiff in error fails to
file an assignment of error on or before the return day, the writ of error may
be dismissed and the judgment of the lower court affirmed, upon motion of the
defendant in error, unless the plaintiff in error shall show good cause for his
default. The return day of the writ in this cause was December 15, 1911.
{2} It has been held in this
court that where the motion of defendant in error is filed before the plaintiff
in error has cured his default, in the absence of a satisfactory showing
excusing the default, the writ of error will be dismissed.
{7} On the date of the filing
of the motion to dismiss, the plaintiff in error had not filed a transcript or
an assignment of errors, so that the motion is timely. But it appears from a
certified copy of a part of the record of the lower court filed by defendant in
error with its motion, that on the 29th day of December, 1911, the plaintiff in
error made an application to the District Court "for an extension of time
within which to perfect its writ of error and to substitute papers which appear
to have been lost," and it further appears from an order made by the
District Court that said court "does hereby
{*235}
extend the time in which the said plaintiff may perfect its writ of error
in the Supreme Court of the Territory of New Mexico for a period of sixty days
from this date."
{8} By sec. 21, chap. 57,
laws of 1907, as amended by sec. 2, chap. 120, laws of 1909, a plaintiff in
error is required to file a transcript of the proceedings in the cause in the
office of the Clerk of this court at least ten days before the return day of
the writ, but it is further provided "That the Supreme Court, or the Judge
of the District Court, where such judgment was rendered, may for good cause
shown, satisfactory to him, grant to the appellant or plaintiff in error,
further time to file a complete transcript in said cause, even though the time
to file the same may have expired." The order of the District Court is to
be considered as granting the plaintiff in error further time in which to file
its transcript in this court.
{9} Speaking of that portion
of sec. 21, supra, which provides that a writ of error, may be dismissed on
motion of defendant, on account of the failure of the plaintiff in error to
file his transcript within ten days before the return day of the writ, this
court in the case of Armijo v. Abeytia,
5 N.M. 533,
25 P. 777, said:
"The object of the statute is, undoubtedly, to assure
promptness in obtaining the decision of the appellate court, in order that the
successful litigant in the nisi prius court, if rightfully entitled to his
judgment or decree, may not, by negligence or wilful dereliction on the part of
the appellant, be deprived of his rights."
{10} If the failure of the
plaintiff in error to file its assignment delayed the hearing of this cause,
the defendant in error might well complain and such delay the statute was
designed to prevent or punish.
{11} Although, as contended
by counsel for defendant in error, there is no statute in this state, which
grants to a Judge of the District Court the power to extend the return day of a
writ of error, or to extend the time in which an assignment of error may be
filed, yet as the District Judge does have the power to extend the time of
filing a transcript in this court, and until the transcript is filed the issues
cannot be made up and the cause set for hearing,
{*236}
practically the effect of an order of the District Judge enlarging the time
in which to file a transcript as effectually extends the return day of the writ
as if the statute granted the power to do so in express terms. Further, by the
terms of the statute, the assignment of errors may follow the transcript in
time of filing, an orderly sequence in appellate procedure, and there can be no
good reason advanced why, if the time of filing the assignment of errors should
not be considered as extended, at least the plaintiff in error should not be
held to be in default for want of an assignment of errors until he files his
transcript, if such transcript be filed within the time as extended, for such
default in no wise injures the opposite party. The motion to dismiss the writ
of error is denied.
{12} After the submission of
this case on defendant's motion to dismiss for failure of plaintiff to file an
assignment of error, the plaintiff on February 12th, filed with the clerk of
this court a transcript of the record and thereafter on February 28th, the
plaintiff filed its motion for leave to file an assignment of error. Before the
time of filing of the motion for leave to file assignment of error the
defendant did not move for dismissal. The record is therefore clear for the
allowance of plaintiff's motion to cure its default and its motion for leave to
file as assignment of error is granted.
{13} Armijo v. Abeytia,
supra.