230 P. 378 | N.M. | 1924
Lucian Rosenwald and Emma Rosenwald instituted a suit against the Rosenwald Realty Company to recover *176 a personal judgment upon several promissory notes. John S. Clark, as trustee in bankruptcy of the estates of E. Rosenwald Son, Cecilio Rosenwald, Gilbert E. Rosenwald, and David E. Rosenwald, intervened and pleaded certain defenses to each and all of said notes. On August 18, 1923, his petition in intervention and the answers filed by him were stricken from the files. On September 1, 1923, a judgment by default, dated August 19th, was filed. On February 15, 1924, John S. Clark, trustee as aforesaid, filed his application for a writ of error to review such judgment. The writ immediately issued. On May 12, 1924, Rosenwald Realty Company, the original defendant in the suit, filed its petition for leave to join as a party plaintiff in such writ of error, and on June 5, 1924, the plaintiff in error filed a motion that the Rosenwald Realty Company be compelled to become a party defendant to such writ. Objections to the petition and the motion were filed, upon the ground, among others, that the time for appeal had expired before these proceedings were instituted in this court, and the case is before us upon the issues thus raised.
1. It is apparent that the petition of the Rosenwald Realty Company to become a party plaintiff in error, and the motion of the plaintiff in error that it be compelled to become a party defendant in error, were both filed after the time allowed by law within which a writ of error could have been sued out, or an appeal have been taken. Section 1, c. 43, Laws 1917. The question presented is whether or not omitted parties may be brought before the court by either of these methods after the time allowed by law for suing out a writ of error from the judgment in the district court has expired. Plaintiff in error, in support of his right to have new parties made in the Supreme Court, upon the petition and motion filed herein, relies upon section 14, c. 43, Laws 1917, which provides:
"Persons may be substituted as parties or compelled to become parties in cases pending in the Supreme Court in like *177 time and manner, and with like effect, as provided for in original suits in district courts."
Three cases were discussed in the argument in this court upon the question now under consideration, and in support of the contention of plaintiff in error. Watters v. Treasure Mining Co. et al.,
"It is not consistent with principle, nor with the rules essential to the orderly and effective administration of justice, that one who prosecutes an appeal should be permitted to negligently delay, the bringing in of necessary parties until after the expiration of the time designated by law as that within which the right to appeal exists. * * * Where a right is given to a party upon the condition that he exercise it *178 within a fixed time, he must exercise it within that time, or it will be lost. It is therefore correctly held that all necessary parties must be brought in within the time fixed by law, or the appeal will be dismissed."
This rule is supported by the following authorities: 2 R.C.L. p. 66; Cornell v. Franklin
For the reasons stated above, the objections to the petition of defendant to be made a party plaintiff in error, and to the motion of plaintiff in error that the defendant be made a party defendant in error, are sustained, and said petition is dismissed and said motion overruled; and it is so ordered.
PARKER, C.J., and BOTTS, J., concur.