Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1916-02-14
SUP RENE COURT
CONSTITUTES RULE;
PARKER D|SSENTS
Decision Holds That Clerk
Has No Right to Withhold
Mandate Until UnsucceSs-
fuI Party Has Paid Costs,

ESPECIAL CORRESPONDENCE 10 MORNING JOURNAL
Santa Fe. Feb. 13.-The state SUI
preme court yesterday handed down
an opinion constituting Rule XIV of the
court and holding that the clerk OF
the supreme court has no right to
withhold mandate until the unsuc-
cessful party in an appeal shall have
satisfied all costs connected with the
case. Justice Parker dissented. The
matter arose out of the damage case
of Fred Thayer VS.. the Denver & Rio
Grande railroad from Santa Fc coun-
ty, recently reversed.
Syllabus by the Court.
Rule Nv of this court, adopted July
Is, 1915, construed. Held, that it is
the duty of the clerk to issue man
date. upon request of either party,
where all the costs have been paid
by either party, and that he has no
right to withhold such mandate where
its issuance is requested by an APP
pellec against whom Judgment for
costs has been entered in this court.
until such appellee pays and satisfies
said judgment.
Opinion of the Court.
Appellee recovered a judgment in
the district court Of Santa Fee county
against the appellant for $4,000 dam
ages, costs of suit. etc. Upon appeal
the cause was reversed and ordered
remanded for new trial upon the
merits. Appellant had expended
something over 5000 for transcript Of
record, printing the same, and costs
advanced to the clerk of this court.
Under Section 1882, Code 1915, appel
liant having prevailed in this court
Judgment was entered against appel
lee for the costs of this appeal. There
was q small balance due the clerk
for costs. not covered by the amount
advanced by the appellant, which the
appellee paid, whereupon he request
ed the clerk to issue a mandate. TINS
the clerk refused to do, until appellee
should pay into his hands an amount
of money sufficient to satisfy the
Judgment which appellant had OBJ
tanned against him in this court Tor
costs. The refusal of the clerk was
based upon the assumption that Rule
XIV Of this court, adopted July H.
1915. required the unsuccessful party
in this court to satisfy any judgment
that might be rendered against him
for costs before he could ask for
mandate. The rule in question reads
as follows:
Upon denial of a petition for re-
hearing, or If within twenty days al
ter a decision no petition for rehear-
ing. is filed, a mandate shall issue
to the court below, as the cause may
require, for execution, upon the pay
ment by either party Of the costs in
cured in this court
Section 1889, Code 1915, provides
a remedy for the collection of judg-
lnent for costs, by execution. Was 1t
the intention of the court, when the
above rule was adopted, to provide
party who may have recovered a
Judgment against his adversary in
this court for costs. with an additional
ana arbitrary remedy for the collec-
ton If his judgment? We think not
nor is the language of the rule sus-
ceptblc of any such interpretation
1t reads;
Upon payment by either party of
the costs incurred in this court" the
shall issue. thus clearly evil
dencing that the only object in view
was the protection of the clerk, in
the matter Of costs, which, under the
law he is required TO collect and turn
over to the state treasurer. Whether
a successful party can collect his
Judgment does not concern the court.
The above rule was never designed
to supply him with an arbitrary rem
edy, or TO prevent an unsuccessful
party to this court from securing a
mandate so that he could nave the
cause remanded to the district court
and there secure a trial on the merits
To hold otherwise would, where the
unsuccessful party here was without
means, effectually cut him off from
all right to litigate his rights, how !
ever meritorious might be his cause
Of action. If no further costs are due
The clerk he will issue the mandate, /