Gutierrez v. Territory of New Mexico ex rel. Curran

79 P. 299, 13 N.M. 30

• Court: New Mexico Supreme Court
• Decided: January 25, 1905
• Docket: No. 1065
• Status: Published

Opinion

OPINION OP ..THE COURT.

POPE, J.

1 Error is assigned upon the action of the court below in sustaining the demurrer and entering judgment against the defendants and also in refusing to grant the defendants an appeal and supersedeas. There was no error in entering judgment against the defendants upon the pleadings. The action of the court below in this respect simply followed the decision of this court upon the former appeal, (Territory ex rel., Curran v. Gutierrez, et al., 78 Pac. 139), which decision fixed the law of the case.

2 The remaining assignments of error are not available for the reason that defendants’ remedy against erroneous action by the court in either of these respects was by mandamus and not by writ of error. Without discussing the authorities ■ we deem it sufficient to cite, upon the proposition that the remedy for an erroneous refusal of an appeal or supersedeas is by mandamus and not by error, the cases of Richardson v. Rogers, 37 Minn., 461; Ex-parte Zellner, 9 Wall. 244; Ex-parte Jordan, 94 U. S. 248; Ex-parte Railroad Company, 95 U. S. 221; Ex-parte Walker, 54 Ala. 577; Smith v. Ragsdale, 36 Ark. 297.

The judgment is accordingly affirmed.

William J. Mills, C. J., Frank W. Parker, A. J., John R. McFie, A. J., Ira A. Abbott, A. J., Edward A. Mann, A. J., concur.