Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1914-11-29
SUPREME COURT
REVERSES ITSELF
IN NOTED CASE
Rehearing Is Granted and
Board of Education Wins
Out in Litigation With Mrs.
Ida AstIer

ESPECIAL osrArcH 70 nornino JOURNAL
Santa Fe. Nov. 2S.-The unique oc-
eurrence OF the state supreme court
reversing itself. was recorded today
In an opinion handed down In the
case of the Board of Education of
the City Of Santa Fe. appellee. repre-
sented by catron a. Catron, against
Ida Aster. appellant, affirming the
decision OF the district court, which
| in turn had affirmed the decision of
the justice of the peace before whom
the action. one Of unlawful detainer,
was first brought.
The suit Is a most interesting one.
The board OF education, after II had
acquired the Fort Marcy military res
ervation, for the public schools.
through the efforts OF Senator T. b.
catron. rented part Of the old bar
racks 10 Miss Astler. who kept
boarding house therein. When the
board wanted the building TO rent
part of Il to the chamber Of COM
merce, Jose ID. Sena. president of the
school board, gave Miss Astier notice
to vacatc. Miss AstIer refused 10
move, and the action for unlawful de-
tainer was brought before the justice
OF the peace. who ruled In favor of
the board.
Claims Notice Not Sufficient.
In the district court Miss Astler set
up that the notice given by Sena was
not the statutory 30-day notice, In
that 1t was not the corporate act of
the board, not having been recorded
on the school board minutes. How
ever. Judge Il. c. Abbott ruled
against her. Miss Astler appealed. and
the supreme court reversed the dis
trict court, but granted a rehearing,
and upon the rehearlng, dismissed
the appeal, deciding in favor of the
school board. Costs with damages
viii amount to about $500. The SUI
preme court opinion Is by District
Judge NJ. c. Mechem.
The court handed down three
other opinions. one in the famous
contempt matter against f. NJ. Cha
con. former editor OF La Voc del
Pueblo" at Las Vegas, who was SEN
fenced to thirty days in Jail and fined
$50 for an article In his paper. Cha
con appealed from the decision of
Judge David ]. I.eahy, but the SUI
preme court dismissed the appeal.
District Judge Colin Neblett, sit
ting for Supreme Court Justice II. II.
Hanna. dissents. however. while Chief
Justice Roberts and Justice Parker
concur. the opinion being by the chief
justice.
syllabus In Custer Case.
l.. While Il defendant in civil
action in the justice of the peace
court is not required TO file written
answer, and the same rule applies on
appeal from the Justice of the peace
court to the district court, yet where |
IN such cases a defendant elects 10
file written answer he should be
held to be confined to The issues he |
thereby tenders and TO abandon such |
defenses as he fails to set out.
2. In an action OF unlawful de- /
tainer the ndtice 10 vacae, required I
by laws OF l90l, Chapter 30, may be {
waivd BY the defendant.
3. In an action for unlawful de-
tainer. the landlord. although before /
bringing such action he has rented
the premises to another is the pro-
per party plaintiff
4. A mistake IN the name Of
party plaintiff which
might have been corrected by the
trial Judge, either before or after
Judgment. Sub-secs. $3.50, Sultan
1855, c. l.. 1897, and where there can
be no question as to the Identity OF
he corporation suing viii be consid-
Hfed on appeal,
]. Under Section Il, Chapter 81,
!. l.. 1907, which grants the right Of
appeal to the supreme court In Grim
nal cases in the following language.
In all eases Of fInni Judgment rem
Tered upon any Indictment an APP
zeal 10 the supreme court shall be
lllowcd If applied for during the !
ern at which such Judgment was :
'endcred the right Of appeal Is linz
ted 10 tinal judgments rendered upon +
IN Indictment. and no right Of appeal /.
will lie from judgment of the dis !
rict court committing q person To
all for criminal contempt. 4,
2. Section 2, Article VI of the +
tate constitution, which provides that :
The appellate jurisdiction of the SUI
rene court shall be co-extensive !,
18th the state. and shall extend to all :
nal Judgments and decisions Of the +
district courtstV simply defines the :,
ppellate Jurisdiction of the supreme !
curt and does not undertake TO grant !,
G litigant u right Of appeal to that .
curt.
3. Although the constitution Gre q
tes court with general appellate :,
as to all final judgments !.
nd decisions Of district courts, such :
may only be invoked pur- =
iant to statute or constitutional I,
revision comforting the right Of APP i
eal and prescribing the. procedure. r
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