9 N.M. 101 | N.M. | 1897
Lead Opinion
Dissenting Opinion
(dissenting).
I can not concur in the conclusion of my associates, as I can not conceive that the existence of jurisdiction confers the authority to assume it prior' to its acquisition. Such retroactive operation would extend limitations upon actions, and bestow upon courts tbe power to annul legislation of restrictive character. Jurisdiction obtained is prospective in operation, in personam et in rem, and it is illogical that in its exercise it should be deemed legitimate to affect its subject before the commencement of the litigation bestowing it. In this ease the institution of the suit by the plaintiffs was not in conformity with the exactions of the department, absolute in its right to prescribe rules and regulations in the premises, and the time within which it should have been commenced having expired. I do not recognize that it was in the power of the judge to deprive the petitioners of their advantage by an endeavor to protect the paintiffs against their own default. “The leading object of the writ of certiorari is to keep inferior judicatories within the bounds of their jurisdiction; and where any such tribunal, judicial or quasi judicial, has proceeded without any jurisdiction, or in excess thereof, certiorari lies to correct the error.” It must be conceded -that the fiat of tile judge in this case was an assertion of authority beyond his rights. Being without jurisdiction on Hay 21st, it is beyond achievement that he could possess himself of it at that date by any judicial legerdemain at a subsequent date, and any order on the twenty-fourth of Hay, presuming to operate prior to its issuance, was in excess of his jurisdiction. If such power as was practiced in this case be within the purview of a judicial official, and the aggrieved party is limited for redress to the prolix proceeding of appeal, his rights may be lost by the unavoidable delay in such effort to secure them. It appears that grave injustice and injury has been done the petitioners by the order of the judge attempting to save to the plaintiffs the limitation within which they should have sued; and it would seem that this court, even if there were legitimate doubts as to the propriety of allowing the writ as strictly applied at common law, should have solved the problem in behalf of the petitioners, in deference to the extension of the writ, in many states, by judicial enlargement even to the function of reviewing and correcting illegalities and irregularities in proceedings. But an-order nunc pro tunc is, by its terms, limited, in its retrospective effect, to tbe time when the right to issue any order had accrued, when jurisdiction had attached, and, if it exceeds this extent, it is a nullity for its excess of jurisdiction.