Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1891-06-23
THELAW GOVERNS
Full Text of the Courts Opinion in the
Case Of Ignacio Lopez VS.,
Pedro Delgado.
The Long Contest over the Office of
Clerk of Santa Fe County Settled
in Favor of Contestant.

Appended is the opinion of Distri(
Judge Seeds handed down to-day in th
case of Lopez VS.. Delgado, involving tn
Office of probate clerk of Santa Fe county
IGNAolo LOPEZ No. 2S29.
PEDRO DELeADo Election contest.
In this case Ignacio Lopez contests tn
election of Pedro Delgado to the office Q
probate clerk Of this, Santa Fe county
By the returns made under the mandarin
proceedings, it appears that Mr.. Delgad
received majority of twelve votes ant
the certificate was given to him, and b.
took possession OF the Office Hereunder
On December 26, 1890, the contestan
filed his notice of contest with the clerl
of this court and the service of his cop,
upon Mr.. Delgado by the sheriff. Accord
ing to the provisions of Sec. 1885, Of thu
G. L. 1884, the contestee was bound t.
file his answer to the notice of contest
and serve copy of the answer upon th'
contestant within twenty days from ant
after the service of such notice OF contes
upon him-the contestee or respondent
Sec. 1888 is as follows: "a copy Of the
notice of contest, answer and reply, shal
be served respectively in the same man
ner as process is now by law required te
be served in an action at law"
Within twenty days from the service Of
notice of contest the respondent, Delgado
filed his answer with the clerk of this
court, and he personally, i. 9. Delgado
served or delivered a copy of the same
upon Mr.. Frank Clancy, one of the mem
bers of the firm of CatroD, Knsebel &
Clancy, who upon the record were the
attorneys for the contestant. This is the
only service of the copy, and the only
copy of the answer ever served. 1t will
be noticed then that no copy has eve,
been served upon Lopez, the contestant
By referring 10 Section 1898 of the G. L.
1884, the method of service in actions at
law is specifically pointed out. 1t must
be served by the proper officer, and in
one of four ways. By this record it is ap-
parent that in no particular has the res
pondent complied with the law; he did
not serve bis copy upon the contestant
nor did the proper officer, the sheriff,
serve what was served. The respondent
undertook to comply with the law as he
thought it should be complied with and
failed completely. After the time had ex-
pired for serving the copy of the answer
upon the contestant, he appeared in court
by his attorney, and moved the court to
give him judgment upon his notice for
want of answer.
IIpnn q certain date the motion waa
argued in a pertunctory manner before
me. The cases were not thoroughly
considered indeed the case of Vigil vs..
Pradt N. M. 375 was not referred to-;
had not thoroughly considered that case,
nor the leading one OF Bull VS.. Southwick,
2 N. M. 32l, and feeling that there was
an injustice in thus cutting of mans
rights without an opportunity to be heard
land l still think the rulings harsh) |
overruled the motion.
The contestant then filed his reply to
the answer under protest, and the matter
was referred to master to take testi-
mony. The testimony having been taken
the matter comes before me for final ac'
ton. The contestant again renews his
motion for judgment upon his notice fol-
want of an answer, and elaborately argues
the point. The question then is, ought
the court to have given judgment upon
the previous motion and if so, should or
can he do 80 now?
The answer to the first part Of the
question depends upon the proper inter.
probation Of Bull vs.. Southwick and Vigil
vs.. Pradt.
In the first case the facts were these
The contestant filed and served his notice
of contest alleging that there were sixty
nine illegal votes given for the contestee.
In his answer Southwick by an oversight
neglected to specifically deny the illegal.
ty of those sixty-nine votes. His answer
was served in time, however. After the
twenty days for serving copy was passed
the oversight was discovered. The law pro-
vides that any allegation not specifically
denied must be taken as admitted. The
contestee or respondent, Southwick, asked
leave Of the court to amend his pleading
80 as to make the denial. Under the
general law Of pleading, this amendment
would have been proper. The trial court
however, held that the statute was spe
cial and must be implicitly followed, anC
that the judges had no discretion in the
matter. The case came to the supreme
court. There it was argued elsborately
1t was argued that the intention of elec
tions was to have the rightfully elected
party inducted into Office, and that i
would be an outrage to oust him by 1
technically and that an insdvertance b,
his attorney that the people were prima
rily interested, and that the laws shoult
be literally interpreted in order that th'
peoples rights might be enforced. Thes
ideas were thoroughly considered by Che
Justice Prince in learned and exhaustive
dissenting opinion an opinion which il
my judgment, were it an open question
would cause me to pause and seriousl
consider before giving in adhesion to tn
majority opinion. But the majority de
cided that the law was mandatory; tina
the Judge had no discretion in the matter
that the times mentioned were times Q
limitation, and he who failed to get in il