Lyndonville National Bank v. Folsom

10 N.M. 306, 10 Gild. 306

• Court: New Mexico Supreme Court
• Decided: August 23, 1900
• Docket: 788
• Status: Published

Opinion

PARKER, J.

On October 31, 1893, plaintiff in error began this action in the district court of Bernalillo county against the defendant in error upon a promissory note, and a writ of attachment was issued and levied on the property of defendant. On February 12, 1894, a motion to quash the writ of attachment was heard and sustained. On March 14, 1894, judgment was had on the promissory note. Thereupon the judgment on the attachment issue was taken to this court by writ of error and was by this court reversed and the cause remanded. 7 N. M. 611. On October 4, 1897, the defendant filed a motion in the district court to strike this cause from the trial docket, because the record presented no issue for trial, which motion was overruled. On April 1, 1898, the cause was tried upon the attachment issue and at the close of plaintiff’s testimony, the court, of its own motion, directed a verdict for defendant. The cause is again here to review this last mentioned judgment.

Anch.IíAby attachment: practice: judgment; review. It will thus be seen that there is presented the question whether a judgment on the attachment issues, in a case where the attachment is ancillary to the main issue, is reviewable in this court independently of the judgment on the main issue. It is, of course, to be assumed, as is provided by statute and aá often recognized by this court, that only final judgments are here reviewable. Whether a judgment on the attachment issues in a case of this kind is a final judgment was presented to this court in Schofield, Receiver, v. American Valley Co., 9 N. M. 485, and, after elaborate argument, it was determined that it was not and that it could not be reviewed as an independent, final, judgment. In that case the plaintiff voluntarily dismissed his action after having been defeated on the attachment issues, and this court held that, there being no final judgment in the case, there was no power in this court to review the interlocutory judgment on the attachment issues. This must be equally true of this case. In this case, while there is a final judgment, it was rendered in March, 1894, and, more than one year having elapsed since that time before the suing out of the writ of error in this case, there is no method of bringing the same here for review, and with it the interlocutory judgment on the attachment issue. It is true that when this case was in this court the first time, the writ of error was directed to the judgment on the attachment issue and not to the final judgment, but the same was apparently unchallenged, and the same occurred at a time when this court had not adopted the doctrine announced in Schofield, Receiver, v. American Valley Co., supra. Fortunately this question, which has been a fruitful source of loss to litigants and uncertainty and annoyance to practitioners, cannot again arise, for the Legislature has made provision for a proper review of such judgments in the future. Laws of 1899, p. 170, sections 8, 9.

For the reasons stated, the writ of error will be dismissed, and it is so ordered.

Mills, C. J., and McFie, J., concur. Leland,. J., took no part in this decision.