27 N.M. 202 | N.M. | 1921
OPINION OF THE COURT.
The transcript of record in' this cause was filed in the office of' the clerk of this court on August 23, 1920, and thereafter, on September 7, 1920, appellant filed its brief on the merits. Thereafter appellee filed a motion to dismiss the appeal because no cost bond was filed within 30 days, as required by section 15, c. 43, Laws 1917. This section provides that, where a cost bond is not filed within 30 days after the allowance of the appeal, the appeal shall fail, and this court held in the case.of Hernandez v. Roberts, 24 N. M. 253, 173 Pac. 1034, that the failure to file the cost bond within the time required was an incurable defect, which could not be waived by the appellee.
Thereafter, on October 20, 1920, appellant filed a petition for a writ of certiorari for the correction ,of the record for the purpose of showing .that a cost bond was filed within the 30' days, but the'same was 'not supported by any showing attempting to excuse appellant’s failure to apply for the writ of certiorari within 30 days after having filed its brief, as required by section 33, c, 43, Laws 1917.. The court without a written opinion entered an order sustaining the motion to dismiss the appeal.
After the 20 days had expired within which to file a motion for rehearing, appellant filed a motion to set aside the1 order of dismissal and to reinstate the cause and for a hearing on the merits. This motion was supported by affidavit in which appellant undertook to show that it had filed a good and sufficient cost bond within the 30 days required by the statute, and that its petition for writ of cer-tiorari should have been granted. Oral argument was permitted upon the motion.
“All motions for such certiorari [for diminution of the record] shall be made within thirty days after appellant or plaintiff in error shall have filed' his brief, otherwise the same shall not be granted unless upon such special cause shown to the court accounting satisfactorily for the delay.”
Appellant did not undertake to in any manner account for the delay, and to have sustained the application for the writ under such circumstances would have been a clear violation of this section of the statute.
For the reasons stated, the application to set aside order of dismissal will be refused; and it is so ordered.