Baca v. Coury

199 P. 1015, 27 N.M. 275

• Court: New Mexico Supreme Court
• Decided: July 20, 1921
• Docket: No. 2617
• Status: Published

Opinion

OPINION OF THE COURT.

ROBERTS, C. J.

G. J. Coury, on the 4th day of February, 1918, filed suit in the district court of Guadalupe county against Mauricio Chavez in assumpsit, and sued out a writ of attachment, and also filed a lis pendens notice on certain real estate. The real estate covered by the attachment and lis pendens was lots 21 and 22 in block 127 of the town of Santa Rosa. Chavez did not appear, and judgment by default went against him on the account. After the attachment was served and the lis pen-dens filed, Chavez sold the real estate in question to Braulio Rivera and wife, who subsequently transferred it to Hilario Baca. It does not appear whether the real estate was ever sold under the writ of attachment from the record before the court. An order of sale was made, however, on the 31st day of November, 1919. On the 20th day of April, 1921, Hilario Baca, plaintiff in error, filed a motion asking that he be permitted to enter a special appearance in the cause, which was apparently granted, and he moved to quash the writ of attachment because the attachment bond had not been approved by the clerk of the district court and because the clerk had not indorsed his approval upon the bond. The court denied the motion to quash, to review which' order Baca sued out a writ of error from this court.

The petition for the writ of error was entitled “Hilario Baca, Plaintiff in Error, v. G. J. Coury, Defendant in Error.” Chavez was not made a party defendant. Defendant in error has filed a motion to dismiss the writ of error on ,+wo grounds:

First, that the cause wag-* .properly entitled, in that Baca was not a party ’ " 'the court below. There is no merit in this, because the record before the court now shows that he was allowed to intervene.

[1] The second ground is that Mauricio Chavez should have been made a party to the writ of error, either joining with the plaintiff in error or joined as a defendant. We think he should have been made a party, but permission will be granted by this court, upon proper application, to the plaintiff in error to bring in the omitted party, and this upon the authority of State ex rel. Baca v. Board of County Commissioners, 21 N. M. 713, 158 Pac. 642.

[2] The defendant in error has filed what he terms a reply brief in which he suggests that after the order entered, to review which the writ of error was sued out, the court upon application corrected the order showing that leave had not been granted Hilario Baca to intervene in the lower court. Attached to the brief is a purported certified transcript of the proceedings leading up to said amended order. If the transcript, as filed by the plaintiff in error, is not correct or does not contain all the proceedings of record in the court below, the additional matter should have been brought into the record by certiorari. The matter attached to the reply brief of defendant in error is no part of the record and cannot be considered by this court. The statute (chapter 43, Laws 1917) provides how the transcript of record is made up and omissions therein supplied.

For the reasons stated, the motion to dismiss the writ of error will be denied; and it is so ordered.

RAYNOLDS and PARKER, JJ., concur.