Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1893-08-12
THE SUPREME COURT.
Falls First Opinion Matters
Of Practice Decided i'll the
Martin Damage Suit.

In the supreme court, in the matter of
Joaquin Martin, Of Albuquerque, who
obtained judgment in the district court
of Bernalillo county against the Atchison,
Topeka e. Santa Fe railroad company for
the sum of $4,000, for alleged injury of
person, the opinion was prepared by Mr..
Justice Fall, and concurred in by full
bench.
The cause came up on motions filed by
N. B. Field, attorney for Martin, to have
the appeal to the supreme court dismissed
and supersedeas set aside and to quash
the writ of error.
Judge Fl. l.. Waldo, general attorney
for the Atchison, Topeka & Santa Fe
railroad in New Mexico, argued and con-
Quoted the case for the railroad and was
assisted by W. B. Childers, of Albuquer-
que.
The case is important rs fixing matter
of practice under the acts of the territory,
and particularly the law of 1891 known
as the Practice Act. The court says:
By this act clearly the legislature in
tended that common law causes should
be reviewed here by writ of error and
not by appeal. The provision is in ex-
press terms and binding unless in con-
flict with the Organic Act or subsequent
acts of congress. We Gan find no such
conflict. The legislature possessed the
power to provide the method by which
causes should be reviewed here, and ex-
ercised that power in clear and unmis-
taxable terms. The appeal should be
dismissed for the reason that the writ of
error is the proper method, and the mo-
ton to dismiss is sustained upon first
ground of the motion, as well as upon
the second, fourth and fifth grounds.
We find that the bond filed in the court
below was SO filed on the 18th day of
February, 1893, and was approved by
the Judge of that court; also being en-
dorsed approved" by the clerk Of this
court on the 23d of March, 1898. The
conditions of this bond show that it was
intended to secure a supersedeas upon
writ of error from this court, and the
point made in this motion is that, being
approved by the clerk here on March 20,
ninety-two days after rendition of judg-
ment, it was filed too late under the stat
ute fixing ninety days as the period
within which bond shall be filed to secure
stay of execution. Complaint is also
made that the bond was treated by court
below as given in appeal and iiere facias
quashed upon this ground.
The statute provides that writ of er-
ror must be sued out within twelve
months from date of judgment and bond
given within ninety days to secure super
sedeas. In ex-parte French, 100 U. s.,
page 4, the supreme court of the United
States decides that supersedeas and writ
of error are two different writs. Clearly
it was the intention of the legislature to
SO provide, and this has been the practice
here. In cause where the writ of error
was sued out, or supersedeas bond given
within ninety days, it has been the prac-
tice for the clerk of this court, unless an
execution has been issued below, simply
to notify the clerk of the lower court
informally that such bond has been filed,
which was considered sufficient to pre-
vent issuing of an execution; where
execution had issued then writ went to
the sheriff, in addition to the writ of
error.
This practice has doubtless been lax,
and together with repeated changes in
the law and the rules of this court, stand
ing under the territorial act as law, has
caused confusion.
In this case the defendant below, evil
IDENTIFY confused as to the proper method
of review, first sought it by appeal and
then by writ of error, finally adopting
both, and filing bond in the requisite
sum, had either or both been proper, with
the intention that the bond should be
sufficient in either. The bond, as before
| said, states that it is for supersedeas in
| writ of error, and the only question is
| whether substantial compliance was
had with tho statute; such compliance
as would secure justice to both parties.
Under the law as it stood prior to 1891
the bond should have been filed in the
court below, as was first done; under the
latter act 1t is to be approved by the clerk
of this court and implicitly filed with him
within ninety days.
appeal, that no substantial compliance
with the statute had been made, and that
there was no supersedeas, then the plaintiff
below could collect his money, while the
case upon review might be reversed, the
writ of error pending, and the defendant
below be without recourse in event Of
final success.
In case the defendant in error has his
case affirmed, and the plaintiff is unable
to pay the judgment, could the sureties
on his bond plead that the same was nc
bond in this cause, and defeat the collec
tion of the judgment? We think not.
The filing of the bond below, condi
toned that the plaintiff in error was
| "about to sue out writ of error" and its
approval by the court was an act of which
the clerk there was compelled to take
notice, and was certainly as binding upon
him as would have been n informal lette,
from the clerk here.
Further, there is nothing to show, OK
cept the approval of the clerk here, that
the bond was not filed with him prior tc
the 23d day of March, although we pre-
sumo that it was so filed with him upon
that date. However, VIC are not prepared
to say that the approval of this bond by
the clerk of this court was an absolute
condition precedent to the issuing of q
supersedeas. The citation issued, with
writ of error on the 23d, only, two days
after the ninety days had expired; while
the supersedeas bond had been given and
was among the papers below more than a
month before.
We hold that upon the filing of this
bond in pursuance of the express inten.
ton of suing out writ of error, a stay Of
execution should have been had. That
the supercedeas should be considered as
such in the writ of error cause and not
on the appeal; that the bond is security
to defendant in error, and that while the
correct practice is and should be to file
the bond and have same approved and