Armijo v. Territory

1 N.M. 580

• Court: New Mexico Supreme Court
• Decided: January 15, 1874
• Status: Published

Opinion

By Court,

PaleN, C. J.:

It appears from the record in this cause, that all the proceedings in the district court were ex parte, and without notice to the defendant, the plaintiff in this court, and that the proceedings prior to the final judgment were had at chambers, in vacation, when no term of the district court was in session. It is beyond question that the order or judgment of the district court awarding the peremptory mandamus in this cause is unauthorized by law, having been made without notice to the defendant, Armijo, and without affording him an opportunity to be heard; and the final judgment of the court rendered in term is erroneous for the same reason. The court is therefore relieved from the necessity of passing upon the question of the authority of the district judge to award the writ of mandamus in vacation. It may be allowable, however, to state that in the opinion of the court such authority is questionable.

The judgment of the district court must be reversed with costs, and the cause remanded with directions to the district court, to dismiss the proceedings at the cost of the relators.