El Nuevo mexicano., 1917-12-20
CASE Of MELROSE
incorporation TO
GO BACK FOR TRIAL
SUPREME COURT HOLDS LOWER
COURT HAS JURISDICTION IN
CONTROVERSY AS TO WHETHER
OFFICE ARE PROPERLY
VESTED.

The state supreme court today or
dered the case from Melrose, Curry
county, involving a controversy as to
the legal status of the town organiza'
ton, back to the lower court for trial
on it's merits, the lower court having
ruled that it had no jurisdiction. The
syllabus OF this case and another from
Otero county follows:
State of New Mexico, appellee, vs..
b. M. Porter, ct al, appellants. No.
1889, Curry county.
This is a quo warranto proceeding
instituted against appellants to in
quire by what right respondents were
exercising the functions and enjoying
the privileges and benefits Of certain
purported and pretended offices in the
purported and pretended village of
M~elrose, in Curry county, it being al
legged that said purported and pre-
tended village had never Deen incor-
porated in the manner and form pre-.
scribed by law. Respondents filed
answer in which they alleged the said
village was incorporated in Septem-
Der, 1915, and that they were the
duly qualified and acting officers Of
said village attaching copies Of the
minutes of the board of county COM
missioners upon which authority they
relied. Respondents filed rejoinder
which amounted to a general denial
of REALTORS replication.
The court having sustained the mo-
tion and dismissed the proceedings
its action in so doing presents the
question for review in this court.
Syllabus
Where the existence Of the fact
that a petition signed by not less that
a majority of the qualified electors
residing within the territory embrac.
ed in the proposed interpretations is
necessary, before the board of county
commissioners is authorized to pro-
coed with the incorporation of a vii.
lage, under Sections 1854 and 1856,
Code 1915, and no provision is made
in the statute for the determination
Of such a fact by the said board, irs
action in Incorporating a village may
at any time be shown to have been
without jurisdiction and void, by es-
tablishing the fact that the petition
on which it acted was not signed.
Opinion by Justice Robert, Chief
Justice Hanna concurring, Justice
Parker not participating.
Otero County Case
Carlton Northcutt, appellant, VS..
W. H. King, ct al, appellees. No.
1898, Otero county.
The appellant instituted a suit in
the district court of Otero county on
a judgment obtained in the state OF
Colorado Marcn 81, 1905. The defend.
ant in the district court answered the
complaint setting up the statute of
limitations. Plaintiff replied denying
the bar by the statute of limitations.
From judgment in behalf Of the de-
fehdant, plaintiff appealed.
Opinion of the court below, affirm
ed.
Syllabus
1. The irregularity which justifies
the setting aside of a judgment within
one year from its rendition, under
provisions of Sec. 1880, Code 1915, IS
defined to be the want of adherence
to some prescribed rule OF mode of
proceeding; and it consists either in
emitting to do something that is
necessary for the due and orderly
of a suit, or doing it in an
unreasonable time or improper man
ner. 1t is a departure from some pre-
scribed rule or regulation.
2. In an action upon a foreign
Judgment, where the answer pleads
the bar of the statute OF limitations
(Sec. 3347, Code 1870 and the reply
ing sets up non residence as a de-
tense to the bar Of the statute (Sec.
1852, Code 1870, a judgment entered
Upon the theory that defendants had
agreed to file an affidavit as to resi-
fence and had failed to do so, is IT.
in that there is no statute, and
10 order of court, requiring such affi-
lavit, for which reasons the entry of
he judgment was contrary to the
course of law and practice Of the
Opinion by Chief Justice Hanna,
Justice Roberts concurring, Justice
Parker absent. not participating.
DILLS GIVEN REFUND
Informal cause No. 729 has been