Lund v. Gilbert

125 P. 602, 17 N.M. 265

• Court: New Mexico Supreme Court
• Decided: June 14, 1912
• Docket: No. 1470
• Status: Published

Opinion

OPINION OF THE COURT.

ROBERTS, C. J.

The appellant, by an order extending the time to file his transcript, made by the district judge of Chaves Countjr, was given until the 17th day of February, 1912, to file such transcript. The transcript was filed with the clerk of this court on the 3rd day of February, 1912, and within the time allowed, but no assignment of errors was filed, and on the 12th day of March thereafter, and after the expiration of the return day, appellee filed a motion to dismiss the appeal, because of the failure to file assignment of errors. Thereafter, on March 21, appellant filed assignment of errors, but has made no showing as to ,why the assignment of errors were not filed prior to the return day or the date of the filing of the motion to dismiss the appeal.

By sec. 21, chap. 57, S. L. 1907, as amended by sec. 2, chap. 120, S. L. 1909, the appellant is required to file a copy of his assignment of errors with the' clerk of the supreme court on or before the return day to which the cause is returnable, and in default of such assignment of errors and filing the same, the appeal or writ of error may be dismissed and the judgment affirmed, unless good cause for failure be shown. In the case of Gauss-Langenberg Hat Co. v. The Raton National Bank, decided at the present term of this court, the court, in discussing this, statute said:

“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. 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.” Citing Price et al. v. Toti et al., 16 N. M. 1; The Sacramento Irrigation Co. v. Lee, 15 N. M. 567; Martin v. Territory, 6 N. M. 491; Lamy v. Lamy, 4 N. M. 29.

1 The appellee, having filed his motion to dismiss, after default of appellant in filing a copy of his assignment of errors, and before such default has been cured by filing such assignment of errors, and no good cause having been shown for the failure to comply with the provisions of the statute, the motion to dismiss the appeal was well taken, and must be sustained, and it is so ordered.