Supreme Court of New Mexico
Decision Information
Buchanan v. Carpenter - cited by 10 documents
Chavez v. Village of Cimarron - cited by 104 documents
Norment v. Mardorf - cited by 49 documents
Public Serv. Co. v. First Judicial Dist. Court - cited by 89 documents
Decision Content
FLORES V. DURAN, 1960-NMSC-135, 68 N.M. 42, 357 P.2d 1091 (S. Ct. 1960)
Narciso FLORES,
Claimant-Plaintiff-Appellee,
vs.
Juan DURAN, Employer, Defendant-Appellant
No. 6693
SUPREME COURT OF NEW MEXICO
1960-NMSC-135, 68 N.M. 42, 357 P.2d 1091
December 27, 1960
Proceeding on appeal from the District Court, San Miguel County, Garnett R. Burks, D.J. The Supreme Court, Moise, J., held that where transcript failed to disclose any order allowing appeal, as Supreme Court could not determine whether appeal had been timely allowed and whether it accordingly had jurisdiction to consider appeal, it would dismiss appeal, even though matter was not raised by appellee.
COUNSEL
Wright & Kastler, Raton, for appellant.
Donald A. Martinez, Las Vegas, for appellee.
JUDGES
Moise, Justice. Compton, C.J., and Carmody, Chavez and Noble, JJ., concur.
OPINION
{*42} {1} The transcript filed in this cause fails to disclose any order allowing an appeal. Although appellee has not raised the issue, inasmuch as the timely allowance of an appeal is required to give this court jurisdiction, Public Service Co. of New Mexico v. First Judicial Dist. Court, 65 N.M. 185, 334 P.2d 713; Chavez v. Village of Cimarron, 65 N.M. 141, 333 P.2d 882, we are in the position of being unable to determine that jurisdiction to consider the appeal is present, and accordingly the cause should be dismissed.
{2} The praecipe filed by appellant did not request the inclusion of the order allowing the appeal if such an order was ever entered. We are fully cognizant {*43} of the fact that Supreme Court Rule 14, subd. 3, being 21-2-1(14) subd. 3, N.M.S.A.1953, provides that among other things the order allowing the appeal, and notice of the taking of the appeal shall be included in the transcript "whether called for by the praecipes or not." Assuming that an order allowing an appeal had been entered, it remained the responsibility and duty of the appellant to see that the transcript was properly prepared and filed, and this would include determining that the order allowing appeal had been shown therein. Norment v. Mardorf, 26 N.M. 210, 190 P. 733; Buchanan v. Carpenter, 65 N.M. 389, 338 P.2d 292.
{3} It follows from what has been said that the appeal should be dismissed. It is so ordered.