Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1921-02-10
CITY A WINNER
IN PAVING SUIT;
APPEAL GRANTED
District Court DiSmiSSeS ! n
junction Holding Commits
SiOnerS Followed Proper
Legal Procedure.

Litigation over the Tijeras ave-
nue. paving project, instituted by
George Il. Ellis, A. Fleischcr ana
a number of other property own
ors, and pending in the distflcl
court since November 20, tefml-
mated Mt 4 o'clock yesterday after
noon when Judge Sam G. Bratton'
of the Fifth judicial district, on the
bench in the absence of Judge NJ,
f. Hickey, sustained the demurrer
to the second amended complaint
filed by the plaintiffs and signed
an order dismissing the suit as
against the city of Albuquerque
and the New Mexico Construction
company. Notice of appeal will be
filed by the plaintiffs.
The decision of the court fol-
lowed arguments which occup ed
practically the entire day. The de-
murrer attacked the complaint il
eleven specific instances, setting VI
IN fact that the suit filed by the
property owners did not contain
allegations sufficient to cause a
court of equity to Interfere in the
matter of collecting the assess
ments or fixing liens against the
property abutting which pavement
was laid last fall. .s-. ....'
Admit Many Allegations.
BY their demurrer the city ano
the construction company admit
ted as true, for the purpose of ar
gument, every allegation contained
in the complaint and all reasonable
infcrenceS that might be drawn
from such allegations. City Attor-
ney w. A. Keleher opened the ar
gument on behalf of the defend.
ants and spoke for more than tive
hours, tracing the history of the
paving enactments from 1884 doWr
to the present time insofar as they
concern New Mexico cities anc
towns. George c. Taylor, attorney
for the plaintiffs, responded fol
the property owners. Neill b
Field. who announced to the court
at the outset that he was not ar
attorney in the case, sat close tC
Mr.. Taylor and made suggestions
to him from time. to time in the
course of his argument. The clos
ing argument yesterday afternoon
on behalf of the construction com
pany was made by Capt, w. G
Reid, solicitor in New Mexico for
the Santa Fe railroad.
Different Views Taken.
The attorneys differed widely in
the Interpretation placed upon the
New Mexico paving procedure. 1t
was commended by the property
owners that there is but one paw
ing procedure in the state. The
city and construction company
claimed vigorously that there were
two distinct and separate pro-
cedures. Cases from various parts
OF the United States were submit
ted to the court in support of the
contrasting conditions. Judge
Bratton, summing up and an
nouncing his decision, declared
that in his opinion there are two
procedures in the state under
which paving may be undertaken,
the provisional order procedure
and the petition procedure. Upon
the decision being announced, Mr..
TAYLOR for the property owners
announced prayer lol al ePPN"'
to the supreme court, which was
at once granted by Judge Brat
ton.
The plaintiffs in the paving suit
are as follows:
George e. Ellis, A. Fleischer,
Thomas T.. Keleher, l. Singer, Je-
sus Romero, Frank Georges, Della
Georges, j. Fl. Madraid, Margaret
E. Medler, f. p. Kahnt, AL Cole
man. agent; Mrs. j. Keleher, Pet
70 Vichi, J. A. Garcia, F. f. Trot'
ter, Mrs. T. c. Greening, Margaret
Chadwick, p. Dinelli, Q. ulVarri
j. w. Palmer, Katie Badaracco
Ellen Cowell and Victoria Dodd.