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17 N.M. 265

Lund v. Gilbert

New Mexico Supreme Court

Decided June 14, 1912

New Mexico Supreme Court · decided 1912-06-14

It is a well-settled principle of equity that where a party has been prevented in a former action wherein he was defendant from making his defense by the fraudulent acts of the plaintiff in such former suit and judgment was rendered against defendant therein, if the defendant had a meritorious defense in said cause an injunction will lie to restrain the enforcement of the former judgment. High on Injunctions, secs. 175 and 190 to 200; 16 Am. & Eng. Ene.

Relies on Sacramento Valley Irrigation Co. v. Lee · Weiss v. Thi of New Mexico at Valle Norte, LLC · Martin v. Terry

Decided 1912-06-14

¶1OPINION OF THE COURT.

ROBERTS, C. J.

¶2The appellant, by an order extending the time to file his transcript, made by the district judge of Chaves Countjr, was given until the 17th day of February, 1912, to file such transcript. The transcript was filed with the clerk of this court on the 3rd day of February, 1912, and within the time allowed, but no assignment of errors was filed, and on the 12th day of March thereafter, and after the expiration of the return day, appellee filed a motion to dismiss the appeal, because of the failure to file assignment of errors. Thereafter, on March 21, appellant filed assignment of errors, but has made no showing as to ,why the assignment of errors were not filed prior to the return day or the date of the filing of the motion to dismiss the appeal.

¶3By sec. 21, chap. 57, S. L. 1907, as amended by sec. 2, chap. 120, S. L. 1909, the appellant is required to file a copy of his assignment of errors with the' clerk of the supreme court on or before the return day to which the cause is returnable, and in default of such assignment of errors and filing the same, the appeal or writ of error may be dismissed and the judgment affirmed, unless good cause for failure be shown. In the case of Gauss-Langenberg Hat Co. v. The Raton National Bank, decided at the present term of this court, the court, in discussing this, statute said:

“That statute provides that if the plaintiff in error fails to file an assignment of error on or before the return day, the writ of error may be dismissed and the judgment of the lower court affirmed, upon motion of the defendant in error, unless the plaintiff in error shall show good cause for his default. It has been held in this court that where the motion of defendant in error is filed before the plaintiff in error has cured his default, in the absence of a satisfactory showing excusing the default, the writ of error will be dismissed.” Citing Price et al. v. Toti et al., 16 N. M. 1; The Sacramento Irrigation Co. v. Lee, 15 N. M. 567; Martin v. Territory, 6 N. M. 491; Lamy v. Lamy, 4 N. M. 29.

¶41 The appellee, having filed his motion to dismiss, after default of appellant in filing a copy of his assignment of errors, and before such default has been cured by filing such assignment of errors, and no good cause having been shown for the failure to comply with the provisions of the statute, the motion to dismiss the appeal was well taken, and must be sustained, and it is so ordered.

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