Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1891-06-23

time must suffer; and that it was purely
a contest between two citizeps. with which
the people had nothing to do; that they
had another and different remedy. Judge
Bristol says; ''It is also my opinion that
the very object of the statute, in regard to
the pleadings and practice in contested
election cases, is to afford and at the same
time 20 compel the observance of, q
speedy mode for conducting and termina-
ting such cases. Its language is plain and
free from all ambiguity. There is no
room for mistaking its purport and mean
ing, and | can not conceive of any reason
able excuse for not following its provisions
by either party. These statutory provi-
sions, as to the time of filing and serving
the notice of contest, answer and reply
are in effect statutes of limitations, taking
from Judge all discretion as to extending
the time" Page 1868.
Again, he says, as to the nature of the
statute: This statutory proceeding be-
tween rival candidates alone, is special
proceeding complete in itself, confering
special jurisdiction on the district court,
and to which the general law and rules of
the court as to the time of pleading and
the discretion of the judge in extending
such time, do not apply"
And Parks, justice, specifically holds
that the statute is mandatory, at least as
to the point in controversy which was as
to time. That then would seem to be
the law as to the question of time in this
case, if that is still the law in this terri.
tory. In 1889 this statute again came be-
fore the supreme court in the case of Vigil
vs. Pradt, 4 N. M. 375. The facts were
these: Vigil contested the election of
Pradt. Pradt made an effort 10 serve
copy of his answer by posting it upon
Vigil's premises in accordance with the
fourth requirement of section 1898. He
thought he had done so, but upon taking
evidence it was found that he had made
mistake, for it was not the contestants
residence. The contestant asked for
judgment for want of an answer, though
one was on file, and the lower court grant
ed it. Pradt appealed, and the whole
court, Chief Justice Long giving the deci-
sion, sustained the lower court, and re-
affirmed the case Of Bull v. Southwick
The question in this case was the same
identically in principle with the one at
bar. Long, G. j., says, page 376:
"The court found that the an
swer to the notice Of contest
had not been served on the contestant as
required by law" and whether that
could be remedied was the question. The
court says, no, it was fatal, and further
say that were it new question they
would be inclined to hold as already held
that the law was mandatory and they in
dorse fully the position as taken by Brs-
tol in the citations above given.
Now, in the case at bar, there was not
service OF the copy of the answer at all
there was no effort made to obey the law,
nor was there any request made OF the court
to aid the delinquency. The respondent
seems to have proceeded upon the
assumption, "that though | have utterly
failed to obey the requirements of the |
law yet will demand my rights because
the contestants attorney took the notice
and gave me no information as to my
error" That the supreme court of this
territory has recognized the possibility of
such contingency as we have in this
case is seen in the following citation from
Bull vs. Southwick, pages 1854 ''That it
ia competent for an uiRonr to resign, TO
sAuILlJ ldCJ5 JuuJ Will ucpllNc vi du VI
fee and give it to another in proceeding
between them, or by his own negligence
in conducting his defense, to produce the
same result, there can be no doubt"
Bearing in mind then that the court
has held that this is special proceeding,
that the times mentioned are times of
limitation and hence jurisdictional rs to
parties, the wisdom of the law requiring
service upon the parties and not upon |
agents or representatives, is shown in this
case. As matter of fact the firm of at
torneys which appeared originally for the
contestant had dissolved when the time
came for service upon contestant OF the
answer, and only one of them then re-
NAMED his attorney; now if we could as
sumo, which we can not, that the attor-
ney who received the notice was unfriend-
ly to the contestant and wished to preju |
dice his case, he could easily have done
so by keeping from the rightful counsel
and the contestant the notice, granting
that such service of the notice upon at
torneys was good; hence the law wisely
provides, in these matters, that the par
ties must have service by the proper Off
Ger and according to law; also, as to juris-
dction, 23 N. E., 421, $50, 778. This has
not been done in this case, and in accord. |
ance with the undoubted holding of our
supreme court, Mr.. Delgado has by his
own negligence or ignorance defeated
himself, unless there is some other prln-
ciple which relieves him. Is there? His
counsel contends that the contestant filed
q common law declaration, instead of
notice ahd called the respondent into
court in term time; that by the statute
there are two methods contemplated.
First, to bring the case IN term time,
or second bringing it by the
twenty days period Limitation in vacation;
and that as he elected to bring it accord
ing to the first method he is estoped from
now objecting. But by comparison of
the law in secs. 1890 ETC. say lin G. L. 1884
passed in 1876 with the old law it is quite
evident that only one law is upon our
is, was the declaration bad notice, and
if 20, what follows? By carefully con.
sidering the so-called declaration, there
will be found in 1t complete notice of
contest-with full and precise allegations
and signed by the contestant. If now,
you subtract from the so-called declara-
ton the Introductory matter, you have
all the statute requires. 1t may we'll be
considered surplusage, sec. / Chitty No.
229. But if 1t was not good notice as
required by the statute, then one of two
things are true. Either the contestee
should have moved to have it corrected,
or if it was entirely bad ignored it, and
depended upon it's failure to confer juris-
diction, as legal reason for ousting him.
But he has done neither-not only has he