17 N.M. 662 | N.M. | 1913
OPINION OP THE COURT.
This is an original proceeding in mandamus, instituted by the relator against the respondent, as judge of the Second Judicial District of the State of New Mexico, to compel said judge to settle and sign a bill of exceptions, in a certain cause theretofore heard in the District Court of Bernalillo County, by said judge, in which the court had entered judgment against the relator, from which judgment relator sought to appeal to this court. The prayer of the petition was that said judge be "commanded and directed to at once complete the ree^ ord of the cause by certifying and signing some statement of the testimony of the material facts taken in said cause and that said statement of testimony be made a part of the transcript of the record to be delivered to the defendant to be filed in this court,” etc. The evidence was not taken by a stenographer, and of course could only be made a part of the record by a bill of exceptions. The return to the alternative writ sets forth the following facts, which are admitted to be true:
.The cause was decided and judgment entered on the 26th day of February,'1912. On the same day defendant sued out an appeal to the Supreme Court, which said appeal was, on said day, granted by the District Court. No supersedeas bond was given within the sixty days allowed by statute, nor was a cost bond filed within thirty days as required by sec. 14 of chap. 57, S. L. 1907, such bond not being filed until the 14th day of October thereafter. No application was made to the court to extend the return day of the appeal or the time of settling- and signing a bill of exceptions, nor was any action taken tc have a bill of exceptions signed or the evidence adduced at said trial made a part of the record at any time prior to the 7th day of December, more than nine months after granting said appeal.
Upon the facts so set forth, the respondent alleged that he was without jurisdiction, and had no lawful right to sign, seal or settle a bill of exceptions or to make the evidence a part of the record by any certificate or otherwise.