Dailey v. Foster

Citations

• 17 N.M. 377
• 128 P. 71

Syllabus

<p>SYLLABUS (BY'THE COURT).</p> <p>1. The purpose of a citation, upon a writ of error, i£ to notify the defendant in error, that the cause has been removed to the superior tribunal, and is waived by the voluntary appearance of the defendant in error.</p> <p>2. Whether an appearance is general or special is governed by the object and purpose of the appearance and any action upon the part of the defendant, except to object to the jurisdiction, which recognizes the case as in court, will: amount to a general appearance.</p> <p>3. By inaction, until after default is cured, a party waives; the benefit of sec. 4 of rule 13, which limits the time within which printed transcripts and briefs are to be filed.</p> <p>4. The remedies by error and appeal cannot both be prosecuted concurrently.</p> <p>5. Where an appeal is taken, and there is a failure to file the cost bond within the time prescribed, and the appeal is not docketed in this court, and a writ of error is subsequently sued dut, docketed and prosecuted, the appeal will be considered as abandoned.</p>