Volume 11 — New Mexico Reports

B. Hamilton, A. J. STATEMENT OE PACTS. This case was begun on tbe twenty-nintb of April, 1893, in tbe district court for Lincoln county, by tbe filing of a bill of complaint on bebalf of C. Ewing Patterson, a resident of New Jersey, and Henry J. Patterson, a resident of New Mexico, against John Y. Hewitt, William Watson, Matbew Hoyle and Harvey B. Fergusson, residents of New Mexico and Old Abe Company, a New Mexico corporation.

Original proceedings in Supreme Court of the Territory of New Mexico before the Chief Justice and Associate Justices. STATEMENT OP THE CASE.

W. Ciiumpacker, A. J. STATEMENT OP THE CASE. This is an appeal from a judgment recovered by Harrison, against the Bank of Commerce, for the sum of seven thousand nine hundred and ninety-three dollars and thirty-three cents, on a certificate of deposit issued, by the bank to Harrison.

W. Cbumpackbb, A. J. STATEMENT OF THE CASE. This is a suit for partition commenced by appellant against appellees in the district court of the Second Judicial district to procure the sale of a lot and building thereon in the city of Albuquerque.

W. Crum packer, A. J. STATEMENT OF FACTS. On March 35, 1894, one Alfred W. Rice, a member of the firm of Bullock, Baker & Company, filed a bill in equity, aginst several defendants, alleging that the property of said firm had been attached for debts due by it and by the firm of Bullock and Baker (of which last firm Rice ivas not a partner) and asked that an injunction issue restraining the defendants from disposing of the property and assets of Bullock, Baker & Company, to…

W. Ckumpackek, A. J. STATEMENT OF FACTS. This cause was tried by the court, jury being waived. At the conclusion of the plaintiff’s evidence, defendants’ counsel moved the court to find the issues for the defendants and dismiss the complaint, which motion was sustained by the court and judgment was rendered dis-fnissing the complaint and for costs against the plaintiff. From this judgment the plaintiff was granted and perfected an appeal to this court.

McFie, sitting in the absence of Chief Justice W. J. Mills from the Territory of New Mexico. STATEMENT OF CASE AND OPINION. The appellant, Nicanor Herrera, was on the twenty-sixth day of November, 1897, in the district court of the fourth judicial district of the Territory of New Mexico, within and for the county of San Miguel, indicted for murder.

McFie, A. J. Where one knowingly and wrongfully cuts timber from the public lands of the United States and enhances its value by his own labor, in a suit for conversion of the timber, the measure of damages is the enhanced value, and any one purchasing such timber in its manufactured state from the willful trespasser must also be responsible for its' value in the manufactured state.

Parker, A. J. Where taxes are sought to he recovered by an action in court, the general statute of limitations is applicable as a defense unless the statute provides otherwise. Cooley on Taxation (2 Ed.), 435. City and County of San. F. v. Jones, 20 Fed. 188. Rice v. Tuckerman, 121 Mass. 222. Henderson v. Whitenger, 56 Ind. 131. State v. Mining Co., 14 Nev. 220-226. Perry Co. v. Ry. Co., 58 Ala. 546.

W. Ciiumpacker, A. J. STATEMENT OP THE CASE. This is a suit brought to recover on a fire insurance policy. The complaint is in the ordinary form, and sets; forth that the insurance company issued a policy for the sum of $3,000 on the twenty-fourth day of September, 1895, having one year to rnn, on a building situated in Gallup, New Mexico, and that on August 15, 1896, said building was totally destroyed by fire.

W. Ceumpacker, A. J. STATEMENT OF THE CASE. This cause conies to this court on appeal from the judgment of the district court of the Second District dismissing the plaintiffs’ complaint herein with costs. It appears from the evidence that in 1894 the defendant Zeiger, being indebted to the defendant the First National Bank of Albuquerque in upwards of the sum of $38,000, was pressed by the bank for a reduction of his indebtedness.

Mills, O. J. STATEMENT OE THE CASE. The appellant was indicted for the nrarder of her husband, Manuel Guillen, on the twenty-first day of January, 1898, in Mora county, New Mexico. Change of venue was had upon the application of the appellant to San Miguel county, and the case came on for trial in Las Vegas on the twenty-first day of December, 1899. Verdict was returned into court on the twenty-third day of December, 1899, for murder in the second degree.

W. CbumpackbR, A. J. STATEMENT OP THE CASE. Tbis is a civil action in the nature of replevin, ana involves the ownership and right of possession of two hundred and seventeen lambs and six yearling wethers. Jury being waived, the'cause was tried by the court and judgment was rendered in favor of the appellee for the possession of the property involved, or the value of the property, found to be five hundred and twenty-three ($523) dollars.

W. Crumpacker, Associate Justice. STATEMENT OF THE CASE. Tbis is an appeal from the judgment of the district court of the Second Judicial district, dismissing the plaintiffs’ complaint herein with costs.

Appeals-from tbe district court of Bernalillo county, before J. W. Crumpacker, Associate Justice. Tbe jurisdiction of this court in such a case as this is defined by sec. 897 of tbe Compiled Laws of 1897.

Mills, Chief Justice. The claim of lien filed by the appellee for record was not properly verified. Sec. 2221, Compiled Laws 1897, N. M. Ford v. Springer Land Association, 8 N. M. 49. Finane v. Hotel and Improvement Co., 3 N. M. 418. 1 Am. and Eng. Ency. of Law, 311. Greenwalt v. Farmers and Mechanics Bank, 2 Dand. 505. Chandler v. Hanna, 73 Ala. 394. Copley on Constitutional Limitations, 128. Phillips on Mech. Liens (3 Ed.), 640. 2 Jones on Liens, sec. 1451.

McMillan, A. J. STATEMENT OP THE CASE. The appellant was tried and convicted upon indictment for murder, in the latter part of November, 1901, in the Lincoln district court. A motion for a new trial was denied, and appeal allowed. The'appellant was delayed in preparing exceptions, by reason of his inability to secure, at an early day, a transcript of the stenographer’s minutes.

1. An ordinary declaration in ejectment is sufficient, under sections 2290, 2291, Comp. Held: error. 4. A receiver’s receipt issued to a mining applicant during the pendency in the court of an action brought in support of an adverse claim in pursuance of section 2326 of the Revised Statutes of the United States, is issued without jurisdiction, and is void.

From tbe condition of tbe record it is manifest that tbis court cannot render final judgment herein with due regard to tbe rights of tbe respective parties and, in furtherance of justice, tbe cause is remanded for a new trial. Appeal from district court of Bernalillo county, before J. W. Crumpaoker, Associate Justice.

Mills, Chief Justice. The statute governing the matter of change of venue in this cause is section 2881, Compiled Laws of New Mexico 1891. This statute is mandatory. Territory v. Kelly, 2 N. M. 292; Sutherland on St. Const., secs. 454 and 459; State v. Shaw, 43 Ohio 324; Witter v. Taylor, 7 Ind. 110; Shattuck v. Meyers, 13 Ind. 46, 74 Am.

W. Crump acker, Associate Justice. One cannot take a benefit under an instrument and then repudiate the instrument. Peters v. Bain, 133 U. S. 695. If the creditor has no right to resort to the property to satisfy his claim, then the transfer cannot he deemed fraudulent. Beach, Mod. Eq., 895. And a transfer of property in which the debtor has no beneficial interest cannot be fraudulent as to his creditors. 14 Am. and Eng. Ency. (2 Ed.), p. 255.

W. Crump acker, Associate Justice. A proceeding to review a judgment by scire facias after the same has bécome dormant is an “action.” Browne & Manzanares Có. v. Chavez, 9 N. M. 316; Fenner v. Evans, 1 Term R. 268; Grey v. Jones, 2 Wils. 251; Pnlteney v. Townson, 2 Bla! Rep. 1227, 2 Tidd 1046, Co. Litt. 290; Ensworth v. Davenport, 9 Conn. 392; Green-way v. Dare, 6 N. J. L.- 306; Gonnigal v. Smith, 6 Johns.. (N. Y.) 107; Gibbons v. Goodrich, 3 Ill. App. 590.

McMillan, Associate Justice. Under sections 299, 300, 301 and 302, Compiled Laws of New Mexico 1897, all claims presented by plaintiff in error are barred, and null and void except so far as there may be money belonging to the county general fund for the year 1900 applicable to the payment of the same; and before be can maintain bis action be must show by bis complaint that there is money in the bands of the county treasurer belonging to said county general fund applicable…

McMillan, Associate Justice. Section 2991, Compiled Laws of New Mexico, 1897, says: “The court shall instruct as to the law of the case, but shall not comment upon the weight of the evidence.” This is the law in criminal as well as civil cases. “In criminal cases as well as in civil cases the jury is the sole judge of the weight of the evidence, and the credibility of the witnesses.” Territory v. O’Donnell, 4 N. M. 196; Bard- . well v. Ziegler, 28 Pac. 360.

W. Crump acker, Associate Justice. Jurisdiction of the court is a matter of statutory regulation. Section 10 of tbe Organic Act, establishing the Territory of New Mexico; Kearney Code, section 9 on Courts and Judicial Powers. See also sections 868, 879, 3136, 3137, Compiled Laws, 1897, and subsections 160 and 161 of section 2685, Compiled Laws, 1897. The jurisdiction of the Supreme Court was greatly enlarged by Act of March 21, 1901. Laws of New Mexico, 1901, p. 159.

McMillan, Associate Justice. “The Supreme Court in appeals or writs of error shall examine the record, and on the facts therein contained alone shall award a new trial, reverse or affirm the judgment of the district court, or give such other judgment as to them shall seem agreeable to law.” Compiled Laws, 1897, sec. 3141; Territory v. Herrera, 66 ■ Pac. 523; Territory v. McFarland, 7 N. M. 421; Territory v. Davis, 6 N. M. 452; Territory v. Barret, 8 N. M. 70.

McMillan, Associate Justice. Except where the jurisdiction of the court is involved, the courts have uniformly declined to entertain a motion to quash an attachment on the ground that the ■attached property does not belong to the defendant. 1 Wade on Attachment, sec. 289; Mitchell v. Skinner, 17 Kan. 563; Langdon v. Conklin, 10 Ohio St. 439; Emerson v. Love, 2 Ohio Dec. 384; Miller v. Paine, 2 Kulp. (Pa.) 304; Exchange Nat.

Parker, Associate Justice. This, suit being by the trustee of an express trust is an exception to the rule that suits must be brought in the name of the real party in interest. It can only be brought in the name of the Territory. Compiled Laws 1897, sec. 2685, subsecs. 2 and 3; also secs. 2939 and 2940; Woodworth y. Woodworth, 70 Mo. 601; Sickles y. McManus, 26 Mo. 28; State v. Campbell, 10 Mo. 724; Carmichael v. Moore, 88 N. Car. 29; Norman v. Walker, 101 N. Car. 24, 8 Ency.

W. Crump acker, Associate Justice. The jurisdiction of justices of the peace in condemnation proceedings is conferred by sections 25 to 28, Compiled Laws, New Mexico, 1897.

Parker, Associate Justice. The time when and circumstances under which an assessment is necessary to be made against the stockholders of a National Bank, under sections 5151 and. 5234, Revised Statutes of the United States to enforce their personal liability for the purpose of paying its debts, as also the extent to which that liability may be enforced, are matters that rest solely in the discretion ■of the comptroller of the currency of the United States.

Mills, Chief Justice. Hearsay evidence of the particular kind here complained of is thus defined. “Supposed orally delivered evidence of a supposed extrajudicially narrating witness judicially delivered viva-voce by the judicially deposing witness.” Rationale of Jud. Ev. (Jas. Mills’ Ed. Lond. 1827), 111, 439; Whar. Crim. Ev. (8 Ed.), par. 220.

Parker/Associate Justice. The relocation of mining grounds presupposes a prior valid location, without which there can not be a valid relocation; and the relocator admits the validity of the prior location. 1 Lindley on Mines, 404; Wills v. Blain, 5 N. M. 238; where the term “relocation” is defined; Belk v. Meagher, 104 U. S. 284.

Parker, Associate Justice. The matter'involved in this suit is res judicata. The evidence to support both actions was the same; that being so1 the cause of action must be the same, notwithstanding the actions are grounded on different writs. Marsh v. Pier, 26 Am. Dec. 138. It is an established rule of law that when a fact has once been decided it shall not again be disputed between the same parties. Betts v. Star, 13 Am.

Parker, Associate Justice. “Occupation” implies that a person is in the actual bona fide possession of a lot as a. resident. Hussy y. Smith, 1 Utah 129; 17 Ency. L., p. 28. “Right of possession” is also a condition of the trust. This means more than occupation. Right is that which one person ought to have or receive from another, it being withheld from him, or not in his possession. Bouvier’s Law Dictionary; Black’s Law Dictionary.

McMillan, Associate Justice. In this Territory while the Supreme Court may affirm, reverse or modify a judgment of the lower court, or render such judgment as that court should have rendered in a civil case — in a criminal appeal this court— “if the judgment be reversed, shall direct a new trial, or that the defendant be absolutely discharged, according to the circumstances of the case. Compiled Laws 1897, sec. 3416; Compiled Laws 1897, sec. 3418.

court of Santa Fe county, before John R. MoFie, Associate Justice. Held: If there is anything besides death which is not to be doubted, it is that the orphans’s court alone has authority to ascertain the amount of the decedent’s property and order its distribution among those entitled to it, McPherson v. Conliff, 14 Am. Dec. 663 and note; Whiteside v. Whiteside, 29 Penn. St. 474.

W. Crumpacker, Associate Justice. The right to sue and recover a judgment against a copartnership as such is purely statutory. 15 Ency. PI. and Pr., 842-3; Compiled Laws New Mexico 1897, secs. 2894, 2895 and 2943. Even without a satisfaction, a judgment against one of tivo joint contractors is a bar to an action against the other. King v. Hoare, 13 Mee and W. 504; Robertson v. Smith, 18 Johns.

McMillan, Associate Justice. It is error sufficient to reverse a judgment for the court to suffer counsel against objection to state facts pertinent to the issue and not in evidence; or to assume arguendo such facts to be in the case when they are not. 2 Ency. PL and Pr., pp. 727-730 and cases cited; see also cases cited in 14 American Digest, p. 2370, sec. 1669.

W. Crumpacker, Associate Justice. The right of recovery by plaintiff is statutory. Compiled Laws of 1897, secs. 4070, 4071 and 4072; Territory ex rel. Costillo v. Perea, Treasurer, 62 Pac. (N. M.) 1094. Unless authorized by statute, purchasers at tax sales can never secure the return of their money from the public treasury.

-W. Crumpaoker, Associate Justice. A fair and impartial trial is a constitutional right. Roper y. Territory, 7 N. M. 255. The discretion of a court must always he exercised 'in conformity to law and the usages of courts, and if .not so exercised is susceptible of being reviewed in a ■superior tribunal. Ward v. Broadwell, 1 N. M. 75; United States y. Lewis, 2 N. M. 459; Sancbes v. Can-delara, 5 N. M. 400; Money’s Digest, p. 39, sec.. 202; Cathcart v. Rogers, 87 N. W. 738.

Mills, Chief Justice. Where there is a community of property, the profits and losses may be represented in the gross receipts, as they frequently are and especially where the partner-, ship is created for a specific purpose. Musier v. Trumpbour, 5 Wendell’s Rep. 278; The Farmers Insurance Company y. Ross & Lennan, 29 Ohio St. 429; 3 Kent’s Commentaries, p. 25 note; Beecher v. Bush, 7 N. W. (Mich.) 785.

W. Crumpacker, Associate Justice. Before appellant could be estopped as against the defendants, sbe must have misled tliem to their injury. Brant v. Virginia Coal and Iron Company et al., 93 U. S. 326, 335, and 336, and citations Hobbs v. McLean, 117 U. S. — ; Cushing v. Laird, 107 U. S. 69; Leach v. California Safe Deposit Co. et al., 63 Pac. 786.

McMillan, Associate Justice. The boundary line between Texas and New Mexico was definitely established by a joint commission in 1859, and was retraced by a United States surveyor in 1883. The court will conclusively presume that this line as established, and the retracement thereof are correct, and is powerless to correct even manifest errors therein •if there were any. Revised Statutes of the United States, sec. 2395; Stoneroad v. Stoneroad, U. S. Sup. Ct. 1895.

<p>Appeal from the district court of Socorro county, before Charles A. Leland, Associate Justice.</p>

H. M'cMillan, Associate Justice. “Possession of the goods may, as in larceny, and under like rules and with like effect, he evidenced against the receiver, but the proper accompanying-proofs must appear, or it will amount to nothing.” 2 Bish. Grim. Proc., sec. 899; Durant v. People, 13 Mich. 351; Castleberry v. State, 33 S. W. 875. The guilty knowledge is the gist of the offense. State v. Hunter, 75 Mo. App. —; George v. State, 78 N. W. (Neb.) 259.

McMillan, Associate Justice. The conversation between defendant Taylor and deputy Richards while Taylor was enroute to and only a. short distance from Pratt’s residence for the purpose of preventing Pratt’s escape, was important and material to defendant for the purpose of showing the frame ■of mind and intent with which defendant went to Pratt’s residence and intercepted Pratt, Port and Neal to prevent their escape, and it was error to exclude it.

N. C. Collier, Judge. Tbe penalty attached to tbe sale of tbe property, or tbe attempted restriction of its sale, was void. Freemont v. U. S., 17 How. 561. One cotenant can not be disseized of any particular part of tbe land unless all tbe others are disseized. Porter v. Hill, 9 Mass. 34; Buswell on Lims. and Adv. Pos., sec. 303. .

W. Crump acker, Associate Justice. In New Mexico the statute prescribes that the rate of interest in the absence of a written contract fixing a different one shall be six per cent per annum on money received to the use of another, and retained without the owner’s consent, express or implied. Compiled Laws, New Mexico, 1897, sec. 2550. This claim for interest is founded on the clearest equity, and has the support of abundant authority. Earl v. Friend, 16 Gratt. 21.

Mills, Chief Justice. Where all the reasonable probabilities and oyer-, whelming weight of evidence are against a verdict or against admissions, or so manifestly against the weight of evidence as to raise a necessary inference that it was the result of passion or prejudice, and not an intelligent or honest exercise by the jury of its proper and lawful functions, in such an emergency the verdict will be set aside. 3 Cyc. of L. and P., pp. 352-353.

Parker, Associate Justice. No tax, territorial, precinct or municipal can be levied without authority of -law. 1 Desty on Taxation, page 207. The limitation fixed by the Legislature is three mills on the dollar. Laws of 1889, sec. 2, p. 141. When the act of 1889 was passed, the limitation of taxation for county current expenses, county purposes, was two and one-half mills on the dollar. Laughlin v. County Commissioners, 3-N. M. 264.

Mills, Chief Justice. In states having statutes similar to that of New Mexico, the administrator is not a mere nominal party, but is directly and substantially interested on behalf of the estate. Major v. Burlington, C. R. & N. Ry. Co., 88 N. W. 815; Perham v. Portland General Electric Co., 53 Pac. lá; Mathews v. Warners’ Adm’r, 29 Gratt. 570; Baltimore & O. R. Co. v. Noell’s Adm’r, 32 Gratt. 394; Harper v. Norfolk & W. R. Co., 36 Fed. 102.