Flores v. Duran

New Mexico Supreme Court

Flores v. Duran

357 P.2d 1091, 68 N.M. 42

CourtNew Mexico Supreme Court

DecidedDecember 27, 1960

Docket6693

StatusPublished

Cited by5 cases

This text of 357 P.2d 1091 (Flores v. Duran) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Flores v. Duran, 357 P.2d 1091, 68 N.M. 42 (N.M. 1960).

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Opinion

MOISE, Justice.

The transcript filed in this cause fails to disclose any order allowing an appeal. Although appellee has not raised the issue, inasmuch as the timely allowance of an appeal is required to give this court jurisdiction, Public Service Co. of New Mexico v. First Judicial Dist. Court, 65 N.M. 185, 334 P.2d 713; Chavez v. Village of Cimarron, 65 N.M. 141, 333 P.2d 882, we are in the position of being unable to determine that jurisdiction to consider the appeal is present, and accordingly the cause should be dismissed.

The praecipe filed by appellant did not request the inclusion of the order allowing the appeal if such an order was ever entered. We are fully cognizant of the fact that Supreme Court Rule 14, subd. 3, being § 21-2-1(14) subd. 3, N.M. S.A.1953, provides that among other things the order allowing the appeal, and notice of the taking of the appeal shall be included in the transcript “whether called for by the praecipes or not.” Assuming that an order allowing an appeal had been entered, it remained the responsibility and duty of the appellant to see that the transcript was properly prepared and filed, and this would include determining that the order allowing appeal had been shown therein. Norment v. Mardorf, 26 N.M. 210, 190 P. 733; Buchanan v. Carpenter, 65 N.M. 389, 338 P.2d 292.

It follows from what has been said that the appeal should be dismissed. It is so ordered.

COMPTON, C. J., and CARMODY, CHAVEZ and NOBLE, JJ., concur.

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MOISE, Justice.

The transcript filed in this cause fails to disclose any order allowing an appeal. Although appellee has not raised the issue, inasmuch as the timely allowance of an appeal is required to give this court jurisdiction, Public Service Co. of New Mexico v. First Judicial Dist. Court, 65 N.M. 185, 334 P.2d 713; Chavez v. Village of Cimarron, 65 N.M. 141, 333 P.2d 882, we are in the position of being unable to determine that jurisdiction to consider the appeal is present, and accordingly the cause should be dismissed.

The praecipe filed by appellant did not request the inclusion of the order allowing the appeal if such an order was ever entered. We are fully cognizant of the fact that Supreme Court Rule 14, subd. 3, being § 21-2-1(14) subd. 3, N.M. S.A.1953, provides that among other things the order allowing the appeal, and notice of the taking of the appeal shall be included in the transcript “whether called for by the praecipes or not.” Assuming that an order allowing an appeal had been entered, it remained the responsibility and duty of the appellant to see that the transcript was properly prepared and filed, and this would include determining that the order allowing appeal had been shown therein. Norment v. Mardorf, 26 N.M. 210, 190 P. 733; Buchanan v. Carpenter, 65 N.M. 389, 338 P.2d 292.

It follows from what has been said that the appeal should be dismissed. It is so ordered.

COMPTON, C. J., and CARMODY, CHAVEZ and NOBLE, JJ., concur.

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357 P.2d 1091, 68 N.M. 42, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flores-v-duran-nm-1960.

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