22 N.M. 302 | N.M. | 1916
OPINION OF THE COURT.
This is a suit brought by the defendant in error, J. Allen Johnson, against the town of Farming-ton, and Messrs. Loftus, Hall, and Tucker, plaintiffs in error, seeking damages for the alleged-negligent performance of a contract for the construction of a waterworks system to supply the town of Farmington.
At this time the case is not before us on its merits, but upon a motion by the defendant in error to dismiss the appeal, the grounds of which motion are: First, where only a portion of the record and proceedings of the trial court is deemed necessary to a review of the case, and such portion is called for by the praecipe filed in the office of the clerk of the district court, under the provisions of section 4500, Code 1915, it is necessary that the court stenographer transcribe the-whole of his stenographic notes and file the same in the office of the clerk of the court in which the action in which they Avere taken Avas tried. Section 4500 does not clearly provide for the filing in the office of the clerk of the transcribed notes of the evidence or proceedings had at the trial, though inferentially such would seem to be called for. The praecipe is directed to the clerk of the court and calls for a portion or portions of the proceedings, which, it would seem, the clerk would be unable to incorporate in the transcript to be prepared by him unless all of the proceedings were on file in his office.
■ In the case of bills of exceptions, under the provisions of section 4495, it was evidently the intention of the Legislature to authorize any party to an action td require the court stenographer to transcribe the whole or any part of his notes, which are then to be filed i-n the office of the clerk of the court and'thereafter embodied in the 'bill of exceptions. This section and section 4500 were both included in the appellate procedure act of 1907, and the fact that the filing of the transcribed notes in the office of the clerk of the court is not required under 'section 4495 would perhaps cast some doubt upon the construction of section 4500.
We have not been favored with a brief by defendants in error in support of the motion to dismiss, and by reason of the fact that our determination upon the second point raised makes the decision upon this, the first point raised, a moot question, we are disposed to pass the question without deciding, until such time as the court has the question before it properly briefed.
The second and only other point raised by the motion to dismiss is that where a portion only of the record or proceedings of the trial court is sought to be brought to this court for review, under sections 4493 and 4500, Code 1915, it is necessary that the portion of the proceedings so brought up for review shall be properly certified by the court or referee, which certificate must also show that the portion of the testimony or proceedings so brought up for review contains all the evidence in the court below upon the question or questions sought to be reviewed.
"In all actions tried without a jury the testimony taken before a court or that taken by a referee, the transcribed notes of the stenographer in such cases, properly certified by the court or referee-, and all motions, orders or decisions made or entered in the progress of the trial of any such action shall become and be a part of the record for the purpose of having the cause reviewed by the Supreme court upon appeal or writ of error, without any bill of exceptions.”
“The foregoing transcript of the testimony of the therein named witnesses at the trial of the said cause of action is approved by me as being a correct record of a portion of the testimony had and taken at and during said trial. Edmund C. Abbott, Judge.”
It is apparent that the foregoing certificate does not recite that the portion of the testimony certified to as being a correct record of the testimony taken at the trial constitutes all the testimony upon the question or questions sought to be raised bjr the praecipe filed in the office of the district clerk under the provisions of section 4500. This section of the Code was before this court for construction in the case of Baca et al. v. Unknown Heirs, 20 N. M. 1, 146 Pac. 945, where the court said in an opinion of Chief Justice Roberts:
“Section 31, e. 57, S. U. 1907 (section 4500, Code 1915), provides a meth-od by which less than thei entire record may be incorporated into the transcript, but under this section all that portion of the record essential to a review in the Supreme Court of the questions presented must be incorporated into the transcript of the record.”
To the same effect, see, also, New Mexico Coal & Mining Co. v. Baker, 21 N. M. 531, at 542, 157 Pac. 167.
Inasmuch as one of the questions raised upon the merits may be solved by resort only to the record proper, the motion to dismiss must be denied; and it is so ordered.