Machen v. Keeler

New Mexico Supreme Court

Machen v. Keeler

68 P. 937, 11 N.M. 413

CourtNew Mexico Supreme Court

DecidedApril 25, 1902

DocketNo. 937

StatusPublished

This text of 68 P. 937 (Machen v. Keeler) 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

Machen v. Keeler, 68 P. 937, 11 N.M. 413 (N.M. 1902).

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Opinion

OPINION OF THE COURT.

MILLS, C. J.

1 This case would have been settled by the decision of this court in the case of Schofield v. American Valley Company, 9 N. M. 485, had it not been for the passage of an act by the Legislative Assern-bly of this Territory which sought to grant the right of appeal in attachment cases where an attachment has been dissolved before the rendering of the final judgment as to the indebtedness, in the main suit. Sections 8 and 9, chapter 75, Session Laws of 1899.

This court held in Schofield v. American Valley Company, supra, that attachment proceedings were not in themselves appealable, and that they could only be reviewed after final judgment had been given in the main case of which they were a part. Our opinion in that case was largely based upon the opinion of the Supreme Court of the United States in the case of Leitensdorfer v. Webb, 20 How. 176, which went to the Supreme Court from this Territory. In that case the Supreme Court of the United States beld and we followed its decision in Schofield v. American Valley Company, 9 N. M. 485, that the finding for the plaintiff in an attachment suit was only an interlocutory order or decree and that not being a final judgment an appeal from it would not lie.

2 The question therefore presented to us is: Does the enactment of sections 8 and 9, chap. 75, Session Laws of 1899, allowing appeals in attachment cases where the attachment has been dissolved before the final judgment has been rendered as to the indebtedness, conflict with the organic act under which this Territory is organized?

As above stated we have held that judgments or orders dissolving attachments are only interlocutory, and the enactment of sections 8 and 9, chap. 75, Session Laws of 1899, by the Legislature of this Territory does not change them, and does not make them final orders, judgments or decrees, from which appeals lie. They are still interlocutory in their nature, and the passage of this act by the Legislative Assembly does not make them final judgments.

The case at bar therefore being an appeal from an order dismissing an attachment is not an appeal from a final judgment, but is an appeal from a mere interlocutory order, and in accordance with the rule laid down by us at the present term of this court in the case of Jung v. Myer, the appeal in this case will be dismissed and the cause remanded to the district court of Socorro county for further proceedings, and it is so ordered.

Baker, Parker, and McPie, JJ., concur. . McMillan, J., having tried this case below, did not participate in this opinion.

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OPINION OF THE COURT.

MILLS, C. J.

1 This case would have been settled by the decision of this court in the case of Schofield v. American Valley Company, 9 N. M. 485, had it not been for the passage of an act by the Legislative Assern-bly of this Territory which sought to grant the right of appeal in attachment cases where an attachment has been dissolved before the rendering of the final judgment as to the indebtedness, in the main suit. Sections 8 and 9, chapter 75, Session Laws of 1899.

This court held in Schofield v. American Valley Company, supra, that attachment proceedings were not in themselves appealable, and that they could only be reviewed after final judgment had been given in the main case of which they were a part. Our opinion in that case was largely based upon the opinion of the Supreme Court of the United States in the case of Leitensdorfer v. Webb, 20 How. 176, which went to the Supreme Court from this Territory. In that case the Supreme Court of the United States beld and we followed its decision in Schofield v. American Valley Company, 9 N. M. 485, that the finding for the plaintiff in an attachment suit was only an interlocutory order or decree and that not being a final judgment an appeal from it would not lie.

2 The question therefore presented to us is: Does the enactment of sections 8 and 9, chap. 75, Session Laws of 1899, allowing appeals in attachment cases where the attachment has been dissolved before the final judgment has been rendered as to the indebtedness, conflict with the organic act under which this Territory is organized?

As above stated we have held that judgments or orders dissolving attachments are only interlocutory, and the enactment of sections 8 and 9, chap. 75, Session Laws of 1899, by the Legislature of this Territory does not change them, and does not make them final orders, judgments or decrees, from which appeals lie. They are still interlocutory in their nature, and the passage of this act by the Legislative Assembly does not make them final judgments.

The case at bar therefore being an appeal from an order dismissing an attachment is not an appeal from a final judgment, but is an appeal from a mere interlocutory order, and in accordance with the rule laid down by us at the present term of this court in the case of Jung v. Myer, the appeal in this case will be dismissed and the cause remanded to the district court of Socorro county for further proceedings, and it is so ordered.

Baker, Parker, and McPie, JJ., concur. . McMillan, J., having tried this case below, did not participate in this opinion.

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68 P. 937, 11 N.M. 413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/machen-v-keeler-nm-1902.

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