Albuquerque weekly citizen. (Albuquerque, N.M.) 1891-19??, 1905-09-30
APPEALS CASE TO
SUPREME COURT
Counsel for HubbeII Not to
Abide by Lower COOst's
Decision.
FULL TEXT OF OPINION

late yesterday afttthooh "'Nt.
bearing the decision Of the court
nnnnhlng the motion Of counsel 10Y y
Z. liahbell for a pcremrtofy win 81
nnanaamua 60 compel the district CLERK
~ recognize Hubbeil a. sheriff ana 70
compel him 20 rutufn % bubbeh the
Sary venlFoh which had boon turned
ever 10 pcffocto Armlio Tor service.
onlesel Tor Hnhboll flied q motion Tor
nppcai 90 the territorial supreme
ronrt. The motion was granted
me aeclslun IHst hanGed down rec
nrairea perfrctn ArIniio ~ primA "a
"a, nhorlff OF nernaillO county ana
ontltloa him 10 perform al the duties
81 che office. nonsessiun ~ the ohce,
wie-. until the title 10 the Once shall
nave boen tried ana determined ~ =
,ueupcr proceeding NJ Law. The courts
order. the appeal and opinion are o.
The Courts order.
rerrltorv Of Now Mexico. County Of
nrrnnlllio. In the district court. T.
n. nuhhell, W. W. n. Dame NO.
sggs.
This cause coming on TO be heara
IN fhr alternative writ 81 mHhnainuH
heretofore issued herein and tho -
aurn ol the defendant thereto, aiter
hearing arguments ot counsel Mers, ~
"A. n. McMillon. w. r. Chiiders ana ~
NJ TSobaon appearing for the plaintiff
ana Nr NJ w clancy al amlcun curiao
An opposlllon 10 The plaintiff. the court
eeklnr judicial notice Of the fact that
Peyfoeto Armiio has presented 10 this
,ncnri ire commission under the great
seal OF The territory Of New Mexico,
Aligned BY the governor Of tho terri
4Orv Of New Mexico aitested ~ the
signature uf the secretary 81 the terri
aory Of New Mexico and dated Aug
unt 81. 1905. which rccitca that a va.
cancy exists Ia the OfIlcc of ahoriu Of
narnalilo county and states that the
governor appoints perfocto Armiio as
the sheriff OF said county and the
court being Informed BY the plgadinga
that the said perfecto Armii0 has duly
nunllfed under said commission. doth
ind that the said pcrfocto Armiio u
prlma fauie sheriff Of said county IN
possession 0f said Office entitled TO dis
charge the duties thereof and 10 tins
custody u all public property pertain
fng 10 said osIicc and taat no II 30 en-
titled until mis- right 10 said once bs
successfully assaulted Ia quo warrnn
40 or other appropriate proceedings Il
conrt.
And tho court also ards that the ae
PENDANT IN th:s case 10 whom tht ~
ternatlvo writ Is directed In his pm
cinl capacity with reference TO ~
subject OF this proceeding derives hi
authority from the court alone. ana
therefore the said plaintiff Is not on
titled 20 a peremptory writ OF manda
mus herein.
whereof Il IL considered by IN
court that the said alternative writ o
mandamus be and the same Ii hereb,
ana1hed and th9t defendant 90 henc
without delay and recover his costs Il
this behalf expended, 10 be taxed. an
that he may have execution thereto
against the relntor herein, Thomas :
Hubbeii.
To which action Of the court the r
lntOg BY his counsel duly excepted an
prayed an appeal to the honorable 81
prame court OF the territory OF Nc
Mexico. which u granted
Judge Abbo,ts opinion In full IL q
follows:
opinion.
These cases we're heard together O
ahe ploadlnKs. The principal quesiio
insassad IL the same In zach. The col
tenfi0n OF the plaintiff aud -eiator
that tho executive order OF Augui
slst, 1905. referred 10 IN the plea
inga. by which Miguel A. Otero, Cove
NOR OF New Mexico, undertook 10 7
move him from the once OF sheriff
Hornallllo county r. invalid, TIL
therefore there was no vacancy IN q
once and tho appointment by the so
arnor Of porfecto AFmiio, the deten
ant, a. his successor. was Of no fort
az effect. Further. ne claims that eve
IL the governor had the power OF 7
moVal. be IL the sheriff De facto In %
neasi0n OF the oiilce aud Of the room
books and other property used In a.
ab0ut the duties Of the ONCE which
alleges he II dlacharEing, and that
- the duty ~ tho courts 10 prOie
him in such possession and In the 4
charge OF such duties until tho dofen
ant. ArmiiO, shall have established
aifla TO the once IN a proper procee
fng In court He asks. IN substan'
mat the respondent IN the mandam
proceeding, the clerk OF this court,
ordered 10 deliver 70 him Or e4rvl
All processes OF the court viii
should be served by the sheriff Of I
county aud Ia the complaint IN equl
that the defendant. Penecto Arml
be eniOlned from acting or attempt
10 net as sheriff and from aitempts
90 take possession % the property p
tanning 10 the oincos now held By
plaintln.
The claim for the defense les a
the governors commission held a
presenled In court by Che defondh
Armijo. appointing him sheFin up'
which he had qualified as provided
iAW. entities him % recognition BY
courts OF the territory until HIS q
shall be declared invalid Ia an app
pirate proceeding III court. and that
these cases he court should not SO
hind the governors commission. u
conceded on both sides that the 8
% the Oiiico In question cannot
tried IN either OF the eases az bar I
that an action az quo WarfantO ~
propor one In which 10 Try Il.
Before the beginning Of those
lions Il had become necessary for
court Ia order 20 tho Heagonable
vice Of the Jury yenires for tho q
" court for hernaiiln county bel
aing September 49, % determine
which at the two claiming 90 hold
Office OF sheriff the ycnlrcs should
Issued for service. Counsel rqprcaI
Tag them were inVited 90 address
court on the question and ana 80.