appeal or writ error in New Mexico

14 New Mexico opinions name it 2 courts 1907–2012 0 in the last five years

The cases below were cited by New Mexico courts in a sentence that names this issue. Sides come from how each citing opinion treated the case (Syfertize flag on that citation), so a case can appear on both: that is where the law is contested. A red or yellow chip is the case's own overall treatment.

Followed or applied (2)

Case	Followed	Cited
State ex rel. Harvey v. Medlergreen nm · 1914 · cited in 2 New Mexico opinions naming this issue, 2011–2012 2 sentences 2012Harvey v. Medler, 19 N.M. 252, 260 , 142 P. 376, 378 (1914) (stating that “as a general rule, the writ of prohibition cannot be used to correct mere irregularities, or to perform the functions of an appeal or writ of error”). {25} Defendant also argues that a de novo appeal from a final judgment in magistrate court is not an adequate remedy for any statute of limitations violation because, like double jeopardy, the statute of limitations in a criminal case is intended to limit exposure to prosecution altogether, not simply to provide an alternative basis for reversal in a de novo appeal. 2012Harvey v. Medler, 19 N.M. 252, 260 , 142 P. 376, 378 (1914) (stating that “as a general rule, the writ of prohibition cannot be used to correct mere irregularities, or to perform the functions of an appeal or writ of error”). {25} Defendant also argues that a de novo appeal from a final judgment in magistrate court is not an adequate remedy for any statute of limitations violation because, like double jeopardy, the statute of limitations in a criminal case is intended to limit exposure to prosecution altogether, not simply to provide an alternative basis for reversal in a de novo appeal.	2	2
White v. Whitegreen ri · 1944 · cited in 1 New Mexico opinions naming this issue, 1960–1960 2 sentences 1960Thus having jurisdiction to determine the cause and render judgment, [certiorari] * * * cannot be used to supply the ordinary functions of an appeal or writ of error, nor may ..it be used to restrain. an inferior court from making an erroneous decision.” The granting of a writ of certiorari is within the sound discretion of the court, Appeal of Fredericks, 1938, 285 Mich. 262 , 280 N.W. 464 , 125 A.L.R. 259 , and White v. White, 1944, 70 R.I. 48 , 36 A.2d 661 , 151 A.L.R. 1374 , and where, as here, appellant’s rights are amply protected, we cannot but feel that the initial issu‘an;ce of the wr 1960Thus having jurisdiction to determine the cause and render judgment, [certiorari] * * * cannot be used to supply the ordinary functions of an appeal or writ of error, nor may ..it be used to restrain. an inferior court from making an erroneous decision.” The granting of a writ of certiorari is within the sound discretion of the court, Appeal of Fredericks, 1938, 285 Mich. 262 , 280 N.W. 464 , 125 A.L.R. 259 , and White v. White, 1944, 70 R.I. 48 , 36 A.2d 661 , 151 A.L.R. 1374 , and where, as here, appellant’s rights are amply protected, we cannot but feel that the initial issu‘an;ce of the wr	1	1

Distinguished, questioned or overruled (0)

Case	Negative	Cited
No negative-treatment citations attached to this issue in New Mexico. Read the followed side critically anyway.

Also cited on this issue (22)

Case	Cited	Years
Farmers' Cotton Finance Corp. v. Green neutral nm · 1929 2 sentences 1931In order to overcome this condition and give this court more latitude, the Legislature, at the request of the bar of this state, by chapter 93, Laws 1927, repealed practically all of the procedural provisions of chapter 43, Laws 1917.” In Farmers’ Cotton Finance Corp. v. Green, 34 N. M. 206, 279 P. 562 , we decided: “The failure of appellant bringing up less than the entire record to comply with section 4 of Rule XI, by setting forth the questions he desires to have reviewed, does not result in dismissal of the appeal in view of other provisions of said rule and of section 3 of Rule XIV. 1931Farmers’ Cotton Finance Corp. v. Green, 34 N. M. 206, 279 P. 562 .	2	1931–1931
Hernandez v. Roberts neutral nm · 1918 2 sentences 1920Section 15, c. 48, Laws 1917, requires the filing of a cost bond within 30 days from the time of taking an appeal or suing out a writ of error, and further provides that upon failure so to do the appeal “shall fail.” In the case of Hernandez v. Boberts, 24 N. M. 253, 173 Pac. 1034 , in discussing the effect of this statute, Ave said: “It provides that In case of failure to file the bond the appeal or writ of error shall fail. * * * This court Is deprived of jurisdiction to hear and determine the cause in case of failure to file the bond, and this consequence is not to be avoided by either waiv 1918The effect of section 15 was considered by this court in the case of Hernandez v. Roberts, 24 N. M. 253, 173 Pac. 1034 , and it was held that the section had the effect of abating an appeal or writ of error where no cost bond is filed within the time required by the statute; that the failure to file a cost bond was an incurable defect which could not be waived by the appellee.	2	1918–1920
Johnson v. Bryars neutral ala · 1956 2 sentences 1968See, § 21-2-1(14) (13), N.M.S.A.1953, which reads as follows: “When an appeal or writ of error has been granted, the trial court shall retain jurisdiction of the cause for the purpose of hearing motions suggesting a diminution or correction of the record of the trial court, and of acting thereon.” (Emphasis added.) Cf., Diehl v. Keystone Alloys Co., 189 Pa.Super. 149 , 149 A.2d 479 (1959), rev’d on other grounds 398 Pa. 56 , 156 A.2d 818 (1959) ; Johnson v. Bryars, 264 Ala. 243 , 86 So.2d 371 (1956) ; and Torrance v. City National Bank of Rockford, 32 Ill.App.2d 288 , 177 N.E.2d 646 (1961). 1968See, § 21-2-1(14) (13), N.M.S.A.1953, which reads as follows: “When an appeal or writ of error has been granted, the trial court shall retain jurisdiction of the cause for the purpose of hearing motions suggesting a diminution or correction of the record of the trial court, and of acting thereon.” (Emphasis added.) Cf., Diehl v. Keystone Alloys Co., 189 Pa.Super. 149 , 149 A.2d 479 (1959), rev’d on other grounds 398 Pa. 56 , 156 A.2d 818 (1959) ; Johnson v. Bryars, 264 Ala. 243 , 86 So.2d 371 (1956) ; and Torrance v. City National Bank of Rockford, 32 Ill.App.2d 288 , 177 N.E.2d 646 (1961).	1	1968–1968
Torrance v. City Nat. Bank of Rockford neutral illappct · 1961 2 sentences 1968See, § 21-2-1(14) (13), N.M.S.A.1953, which reads as follows: “When an appeal or writ of error has been granted, the trial court shall retain jurisdiction of the cause for the purpose of hearing motions suggesting a diminution or correction of the record of the trial court, and of acting thereon.” (Emphasis added.) Cf., Diehl v. Keystone Alloys Co., 189 Pa.Super. 149 , 149 A.2d 479 (1959), rev’d on other grounds 398 Pa. 56 , 156 A.2d 818 (1959) ; Johnson v. Bryars, 264 Ala. 243 , 86 So.2d 371 (1956) ; and Torrance v. City National Bank of Rockford, 32 Ill.App.2d 288 , 177 N.E.2d 646 (1961). 1968See, § 21-2-1(14) (13), N.M.S.A.1953, which reads as follows: “When an appeal or writ of error has been granted, the trial court shall retain jurisdiction of the cause for the purpose of hearing motions suggesting a diminution or correction of the record of the trial court, and of acting thereon.” (Emphasis added.) Cf., Diehl v. Keystone Alloys Co., 189 Pa.Super. 149 , 149 A.2d 479 (1959), rev’d on other grounds 398 Pa. 56 , 156 A.2d 818 (1959) ; Johnson v. Bryars, 264 Ala. 243 , 86 So.2d 371 (1956) ; and Torrance v. City National Bank of Rockford, 32 Ill.App.2d 288 , 177 N.E.2d 646 (1961).	1	1968–1968
Diehl v. Keystone Alloys Co. green pasuperct · 1959 2 sentences 1968See, § 21-2-1(14) (13), N.M.S.A.1953, which reads as follows: “When an appeal or writ of error has been granted, the trial court shall retain jurisdiction of the cause for the purpose of hearing motions suggesting a diminution or correction of the record of the trial court, and of acting thereon.” (Emphasis added.) Cf., Diehl v. Keystone Alloys Co., 189 Pa.Super. 149 , 149 A.2d 479 (1959), rev’d on other grounds 398 Pa. 56 , 156 A.2d 818 (1959) ; Johnson v. Bryars, 264 Ala. 243 , 86 So.2d 371 (1956) ; and Torrance v. City National Bank of Rockford, 32 Ill.App.2d 288 , 177 N.E.2d 646 (1961). 1968See, § 21-2-1(14) (13), N.M.S.A.1953, which reads as follows: “When an appeal or writ of error has been granted, the trial court shall retain jurisdiction of the cause for the purpose of hearing motions suggesting a diminution or correction of the record of the trial court, and of acting thereon.” (Emphasis added.) Cf., Diehl v. Keystone Alloys Co., 189 Pa.Super. 149 , 149 A.2d 479 (1959), rev’d on other grounds 398 Pa. 56 , 156 A.2d 818 (1959) ; Johnson v. Bryars, 264 Ala. 243 , 86 So.2d 371 (1956) ; and Torrance v. City National Bank of Rockford, 32 Ill.App.2d 288 , 177 N.E.2d 646 (1961).	1	1968–1968
Diehl v. Keystone Alloys Co. green pa · 1959 2 sentences 1968See, § 21-2-1(14) (13), N.M.S.A.1953, which reads as follows: “When an appeal or writ of error has been granted, the trial court shall retain jurisdiction of the cause for the purpose of hearing motions suggesting a diminution or correction of the record of the trial court, and of acting thereon.” (Emphasis added.) Cf., Diehl v. Keystone Alloys Co., 189 Pa.Super. 149 , 149 A.2d 479 (1959), rev’d on other grounds 398 Pa. 56 , 156 A.2d 818 (1959) ; Johnson v. Bryars, 264 Ala. 243 , 86 So.2d 371 (1956) ; and Torrance v. City National Bank of Rockford, 32 Ill.App.2d 288 , 177 N.E.2d 646 (1961). 1968See, § 21-2-1(14) (13), N.M.S.A.1953, which reads as follows: “When an appeal or writ of error has been granted, the trial court shall retain jurisdiction of the cause for the purpose of hearing motions suggesting a diminution or correction of the record of the trial court, and of acting thereon.” (Emphasis added.) Cf., Diehl v. Keystone Alloys Co., 189 Pa.Super. 149 , 149 A.2d 479 (1959), rev’d on other grounds 398 Pa. 56 , 156 A.2d 818 (1959) ; Johnson v. Bryars, 264 Ala. 243 , 86 So.2d 371 (1956) ; and Torrance v. City National Bank of Rockford, 32 Ill.App.2d 288 , 177 N.E.2d 646 (1961).	1	1968–1968
In Re Fredericks green mich · 1938 2 sentences 1960Thus having jurisdiction to determine the cause and render judgment, [certiorari] * * * cannot be used to supply the ordinary functions of an appeal or writ of error, nor may ..it be used to restrain. an inferior court from making an erroneous decision.” The granting of a writ of certiorari is within the sound discretion of the court, Appeal of Fredericks, 1938, 285 Mich. 262 , 280 N.W. 464 , 125 A.L.R. 259 , and White v. White, 1944, 70 R.I. 48 , 36 A.2d 661 , 151 A.L.R. 1374 , and where, as here, appellant’s rights are amply protected, we cannot but feel that the initial issu‘an;ce of the wr 1960Thus having jurisdiction to determine the cause and render judgment, [certiorari] * * * cannot be used to supply the ordinary functions of an appeal or writ of error, nor may ..it be used to restrain. an inferior court from making an erroneous decision.” The granting of a writ of certiorari is within the sound discretion of the court, Appeal of Fredericks, 1938, 285 Mich. 262 , 280 N.W. 464 , 125 A.L.R. 259 , and White v. White, 1944, 70 R.I. 48 , 36 A.2d 661 , 151 A.L.R. 1374 , and where, as here, appellant’s rights are amply protected, we cannot but feel that the initial issu‘an;ce of the wr	1	1960–1960
Eigner v. Geake green nm · 1948 2 sentences 1953We held in Eigner v. Geake, 1948, 52 N.M. 98 , 192 P.2d 310 , that, absent exceptional circumstances, the time for application for a writ of certiorari would be the same as for an appeal or writ of error. 1953We held in Eigner v. Geake, 1948, 52 N.M. 98 , 192 P.2d 310 , that, absent exceptional circumstances, the time for application for a writ of certiorari would be the same as for an appeal or writ of error.	1	1953–1953
City of Roswell v. Richardson neutral · 1915 2 sentences 1948State v. District Court Eighth Judicial District, 38 N.M. 451 , 34 P.2d 1098 ; Peisker v. Chavez, 46 N.M. 159 , 123 P.2d 726 ; Appelby v. District Court, 46 N.M. 376 , 129 P.2d 338 ; Heron v. District Court, 46 N.M. 290 , 128 P.2d 451 ; City of Roswell v. Richardson, 21 N.M. 104 , 152 P. 1137 . 1948State v. District Court Eighth Judicial District, 38 N.M. 451 , 34 P.2d 1098 ; Peisker v. Chavez, 46 N.M. 159 , 123 P.2d 726 ; Appelby v. District Court, 46 N.M. 376 , 129 P.2d 338 ; Heron v. District Court, 46 N.M. 290 , 128 P.2d 451 ; City of Roswell v. Richardson, 21 N.M. 104 , 152 P. 1137 .	1	1948–1948
State Ex Rel. Heron v. District Court of First Judicial Dist. green nm · 1942 2 sentences 1948State v. District Court Eighth Judicial District, 38 N.M. 451 , 34 P.2d 1098 ; Peisker v. Chavez, 46 N.M. 159 , 123 P.2d 726 ; Appelby v. District Court, 46 N.M. 376 , 129 P.2d 338 ; Heron v. District Court, 46 N.M. 290 , 128 P.2d 451 ; City of Roswell v. Richardson, 21 N.M. 104 , 152 P. 1137 . 1948State v. District Court Eighth Judicial District, 38 N.M. 451 , 34 P.2d 1098 ; Peisker v. Chavez, 46 N.M. 159 , 123 P.2d 726 ; Appelby v. District Court, 46 N.M. 376 , 129 P.2d 338 ; Heron v. District Court, 46 N.M. 290 , 128 P.2d 451 ; City of Roswell v. Richardson, 21 N.M. 104 , 152 P. 1137 .	1	1948–1948
State Ex Rel. Appelby v. District Court of Fifth Judicial District neutral nm · 1942 2 sentences 1948State v. District Court Eighth Judicial District, 38 N.M. 451 , 34 P.2d 1098 ; Peisker v. Chavez, 46 N.M. 159 , 123 P.2d 726 ; Appelby v. District Court, 46 N.M. 376 , 129 P.2d 338 ; Heron v. District Court, 46 N.M. 290 , 128 P.2d 451 ; City of Roswell v. Richardson, 21 N.M. 104 , 152 P. 1137 . 1948State v. District Court Eighth Judicial District, 38 N.M. 451 , 34 P.2d 1098 ; Peisker v. Chavez, 46 N.M. 159 , 123 P.2d 726 ; Appelby v. District Court, 46 N.M. 376 , 129 P.2d 338 ; Heron v. District Court, 46 N.M. 290 , 128 P.2d 451 ; City of Roswell v. Richardson, 21 N.M. 104 , 152 P. 1137 .	1	1948–1948
Peisker v. Chavez green nm · 1942 2 sentences 1948State v. District Court Eighth Judicial District, 38 N.M. 451 , 34 P.2d 1098 ; Peisker v. Chavez, 46 N.M. 159 , 123 P.2d 726 ; Appelby v. District Court, 46 N.M. 376 , 129 P.2d 338 ; Heron v. District Court, 46 N.M. 290 , 128 P.2d 451 ; City of Roswell v. Richardson, 21 N.M. 104 , 152 P. 1137 . 1948State v. District Court Eighth Judicial District, 38 N.M. 451 , 34 P.2d 1098 ; Peisker v. Chavez, 46 N.M. 159 , 123 P.2d 726 ; Appelby v. District Court, 46 N.M. 376 , 129 P.2d 338 ; Heron v. District Court, 46 N.M. 290 , 128 P.2d 451 ; City of Roswell v. Richardson, 21 N.M. 104 , 152 P. 1137 .	1	1948–1948
State Ex Rel. St. Louis, Rocky Mountain & Pacific Co. v. District Court of Eighth Judicial District neutral nm · 1934 2 sentences 1948State v. District Court Eighth Judicial District, 38 N.M. 451 , 34 P.2d 1098 ; Peisker v. Chavez, 46 N.M. 159 , 123 P.2d 726 ; Appelby v. District Court, 46 N.M. 376 , 129 P.2d 338 ; Heron v. District Court, 46 N.M. 290 , 128 P.2d 451 ; City of Roswell v. Richardson, 21 N.M. 104 , 152 P. 1137 . 1948State v. District Court Eighth Judicial District, 38 N.M. 451 , 34 P.2d 1098 ; Peisker v. Chavez, 46 N.M. 159 , 123 P.2d 726 ; Appelby v. District Court, 46 N.M. 376 , 129 P.2d 338 ; Heron v. District Court, 46 N.M. 290 , 128 P.2d 451 ; City of Roswell v. Richardson, 21 N.M. 104 , 152 P. 1137 .	1	1948–1948
Herbst v. Rogers neutral nm · 1917 1 sentence 1934Herbst v. Rogers, supra. But under the more liberal procedure provided by the new rules this anomaly no longer exists, and “the bill of exceptions is settled and signed in time, if it is duly incorporated in the transcript of the record and proceedings in the ease, filed on or before the return day of the appeal or writ of error, original or as extended.” Bybee v. White, 34 N. M. 600, 287 P. 290 .	1	1934–1934
Bybee v. White green nm · 1930 1 sentence 1934Herbst v. Rogers, supra. But under the more liberal procedure provided by the new rules this anomaly no longer exists, and “the bill of exceptions is settled and signed in time, if it is duly incorporated in the transcript of the record and proceedings in the ease, filed on or before the return day of the appeal or writ of error, original or as extended.” Bybee v. White, 34 N. M. 600, 287 P. 290 .	1	1934–1934
State Ex Rel. State Tax Commission v. Faircloth green nm · 1929 1 sentence 1931Tax Commission v. Faircloth, 34 N. M. 61, 277 P. 30 , Mr. Justice Catron said: “Chapter 43, Laws 1917, commonly known as the Appellate Procedure Act, prescribed each step to be taken in the perfecting of an appeal or writ of error.	1	1931–1931
Canavan v. Canavan green nm · 1914 1 sentence 1916The doctrine announced in the case of Canavan v. Canavan, supra, was referred to and approved in the later case of Mundy v. Irwin, 19 N. M. 710, 141 Pac. 877 .	1	1916–1916
Mundy v. Irwin green nm · 1914 1 sentence 1916The doctrine announced in the case of Canavan v. Canavan, supra, was referred to and approved in the later case of Mundy v. Irwin, 19 N. M. 710, 141 Pac. 877 .	1	1916–1916
Acequia Madre v. Meyer neutral nm · 1912 1 sentence 1913The statute (sec. 21, chap. 57 supra) provides: “In default of such assignment of error and filing the same the appeal or writ of error may be dismissed and the judgment affirmed, unless good cause for failure be shown.” In the case of Acequia Madre v. Myers, supra, this court said: “Our territorial supreme court has held repeatedly that upon failure to file and serve the assignment Of error, as required, and within the time limited, the appellee or defendant in error is entitled to a dismissal and affirmance, if advantage be taken of such default before it is cured, in the absence of a showin	1	1913–1913
Andrews v. Loveland neutral colo · 1864 1 sentence 1907The complainant may still obtain leave to amend and it is only to a decree making a final disposition of a case that an appeal or writ of error lies.” The rule will also be found stated in Andrews v. Loveland, 1 Colo. 8 ; Gates v. Hayner, 22 Fla. 325 ; Slagle v. Bodmer, 58 Ind. 465 , and Elliott on Appellate Procedure Sec. 81, and cases cited.	1	1907–1907
Slagle v. Bodmer neutral ind · 1877 1 sentence 1907The complainant may still obtain leave to amend and it is only to a decree making a final disposition of a case that an appeal or writ of error lies.” The rule will also be found stated in Andrews v. Loveland, 1 Colo. 8 ; Gates v. Hayner, 22 Fla. 325 ; Slagle v. Bodmer, 58 Ind. 465 , and Elliott on Appellate Procedure Sec. 81, and cases cited.	1	1907–1907
Gates v. Hayner green fla · 1886 1 sentence 1907The complainant may still obtain leave to amend and it is only to a decree making a final disposition of a case that an appeal or writ of error lies.” The rule will also be found stated in Andrews v. Loveland, 1 Colo. 8 ; Gates v. Hayner, 22 Fla. 325 ; Slagle v. Bodmer, 58 Ind. 465 , and Elliott on Appellate Procedure Sec. 81, and cases cited.	1	1907–1907

Where else courts name it

IL 142 (1843–2018) TX 107 (1866–2026) MO 70 (1867–2021) WV 37 (1883–2011) PA 26 (1934–2025) VA 26 (1881–2014) FL 24 (1882–2004) TN 23 (1910–2018) AR 20 (1888–2001) NM 14 (1907–2012) WA 13 (1891–2024) AL 13 (1854–2010) MD 11 (1858–2009) CA 9 (1901–1997) CO 9 (1864–1964) OK 9 (1912–1979) WI 9 (1872–2019) CT 9 (1972–2021) IN 8 (1902–2008) NE 8 (1897–2002) KS 6 (1902–2025) AZ 6 (1894–1982) NV 5 (1866–1962) IA 5 (1882–2014) WY 5 (1893–1983) ID 5 (1898–1966) HI 4 (1917–1940) RI 4 (1867–2004) MN 4 (1941–2017) ND 4 (1898–1975) NJ 4 (1879–1954) OR 3 (1923–1975) SC 3 (1950–1999) MT 3 (1911–1975) OH 3 (1930–1941) MI 2 (1920–1942) KY 2 (1845–1851) UT 2 (1894–1937) DC 2 (1906–1914) MS 2 (1875–1953) PR 2 (1941–1946) MA 2 (1905–1943)

Opinions by the citing court's state. A doctrine retained in one state and abandoned in another shows up here as a year span that stalls.

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