Volume 22 — New Mexico Reports

<p>Mandamus by the State, on the relation of Francis E. Wood, against Herbert F. Eaynolds, Judge of the Second Judicial District Court of the State of New Mexico.</p> <p>Hanna, J., dissenting.</p>

Action by Juan Maria Ortega and others against Trinidad M. Vigil. From judgment for defendant, plaintiffs appeal. . The court was without jurisdiction to set aside, the judgment. Sec. 4227, Code 1915; U. S', v. Eio Grande Dam & I. Co., 85 Pac. 393, 399; Weaver v. Weaver, 113 Pac. 599, 601. There were no irregularities in judgment or procedure thereof. Sec. 4122, Code 1915; Weaver v. Weaver, supra; D, S-v. E. G. D. & I. Co., supra.

F. Raynolds, Judge. Action by Qurino Coulter against the Board of County Commissioners of Bernalillo County. From a judgment for defendant, plaintiff appeals. Court was without power to set aside the judgment. Black on Judgments, p. 381; sec. 134, Code Civil Pro. 1897; see. 4227, Code 1915; sec. 4230, Code 1915; Black on Jndgs. (2d ed.) 170; Bronson v. Shulton, 104 TJ.

F. Raynolds, Judge. Election contests by Juan Carabajal against Camilo Lucero, and Miguel Trujillo against Alfredo Sandoval, consolidated for trial. From judgment for contestants, contestees appeal. Court had jurisdiction to hear and determine these contests.

C. Mechem, Judge. Action by Ben F. Gooch against Henry Coleman. From a judgment for plaintiff, defendant appeals. STATEMENT OP PACTS. Held: and inspected the herd, after which there were some negotiations between the parties as to the terms of Certain notes to be given for the balance of the purchase price.

<p>SYLLABUS BY. THE COURT.</p> <p>Section 1632, Code 1915, which authorizes the seizure and sale of animals under seven months of age. if confined in any of the ways mentioned in the section and unaccompanied by their mothers, and which requires no notice, actual or constructive, to the owner, of such seizure and sale, is unconstitutional as authorizing the taking of property without due process of law.</p>

<p>Appeal from District Court, Colfax County; T. D. Leib, Judge.</p> <p>Action by Jennie Milliken against Juan C. Martinez and wife, in which John King intervened. From the judgment, intervener appeals.</p>

<p>Appeal from District Court, Bernalillo County; H. F. Raynolds, Judge.</p> <p>Action by C. S. Culp and B. C. Culp and Isaac Barth, copartners doing business as Culp-Barth Sheep Company, against Jesus M. Sandoval. From a judgment for plaintiffs, defendant appears.</p>

. Appeal from District Court, Curry County; John T. McClure, Judge. Action by Lena Singer, a minor, by J. H. Singer, her father and next friend, against W>. F. Swartz. From a judgment for plaintiff, defendant appeals.

<p>SYLLABUS BY THE COURT.</p> <p>1.' A complaint for cancellation of a deed, conveying real estate from a mother to a son, which alleges that siich conveyance was made in consideration of an agreement on the 'part of the son to live with and care for the mother, and that said son has wholly failed and refused to comply with his part of the agreement, and has abandoned the mother and removed to a distant city, states a good cause of action, and is sufficient to withstand a demurrer.</p>

<p>Error to’ District Court, Otero County; E. L. Medler, Judge.</p> <p>Action by J. D. Glasgow against J. ,C- Peyton and others. Judgment for defendants, and plaintiffs bring error.</p>

Action by R. W. Nickle against Clara E. Coulter. Judgment for defendant, and plaintiff brings error. STATEMENT OF FACTS. This is an action to foreclose a mechanics’ lien, which is based upon an alleged verbal contract for the construction of a roof upon a barn of the defendant’s for the alleged sum of $57. The defense to the action is that the contract price was the sum of $31, and not the amount set out in the lien statement.

Iiristos Emmanuel Orfanakis, alias Crist ;Orfanus, alias Christos Emmanuel Orfanakis, was convicted of murder in the second degree, and appeals. STATEMENT OP PACTS. The appellant, Iiristos Emmanuel Orfanakis, was jointly indicted with Elijah Perakis and Apostolakis Jivokias, charged with the murder of one Sem Tomas, alias Sam Tomas.

<p>SYLLABUS BY EDITORIAL STAPP.</p> <p>In divorce cases it is ordinarily the duty of the husband to furnish means to the wife to maintain or defend her rights, and the costs in such proceeding will not be apportioned.</p>

<p>SYLLABUS BY THE COURT.</p> <p>The requirement that a cost or supersedeas bond shall be filed in appeal cases within a certain time is not waived by an appellee where he seeks to take advantage of the irregularity at the first opportunity, but only in those cases where he first performs some act in this court which is consistent with a recognition of the regularity of the appeal.</p>

F. Baynolds, Judge. Action by Alfred J. Otero against the City of Albuquerque. From a judgment for plaintiff, defendant appeals. Title passes even where deed is procured by fraud.

L. Mecller, Judge. . Action by George W. Prichard against J. H. Fulmer, Jr., and another. From a judgment for defendant, plaintiff appeals. In absence of statute, attorney has equitable lien. Mosley v. Norman, 74 Ala. 424; Andrews v. Morse, 12 Conn. 444; Carter v. Davis, 8 Fla. 183; J ones v. Groover, 46 Ga. 568; Hunt v. McClanahan, 48 Tenn. 503; Filmore v. Wells, 15 Pac. -343. Contract for payment of attorney’s fee is enforcible at common, law. 27 Cyc. of Pro. 1781, 1785.

<p>Original applications by Eligió Carrillo and others for writs of habeas corpus.</p>

L. Mecller, Judge. Action by Lafayette Clapp, as receiver of the First State Bank of Las Cruces, an insolvent corporation, against T. B. H. Smith and others. From a judgment for defendants, plaintiff appeals. The receiver of insolvent bank is proper party to bring the suit. See. 462, Code 1915; sec. 86, c. 67, L. 1915; Jones v. Bankin, 140 Pac.

D. Leib, Judge. Action of Josephine A. Clouthier against John Stafford and another. Motions to set aside a judgment for defendants were denied, and defendants bring error. The trial court erred in not setting aside the judgment on motion.

Action by M. P. Stamm against the Southwestern Presbyterian Sanatorium, a corporation, and the City of Albuquerque. Prom a judgment dismissing the action, plaintiff appeals. Proceedings may be instituted by private individuals, where gist of action is private injury, by way of injunction to vindicate rights of public against encroachment by individuals. Smith v. McDowell, citing McDonald v. English, 85 111. 232; East St. Louis v. O’Flinn, 119 111. 200, 59 Am.

<p>SYLLABUS BY THE COURT.</p> <p>1. In trials before the court the erroneous admission of testimony will afford no ground for reversal unless it appears that the court considered such testimony in deciding the case. P. 173</p> <p>2. Where two or more community ditches tahe water from a common ditch or head, and the lower ditch has enlarged the upper one either by reason of a contract with the upper ditch or by reason of the common consent and acquiescence of the water right owners in said upper ditch, the lower ditch becomes a tenant in common with the upper ditch in the common structure, and as such is entitled to the joint management and control of the same in so far as the joint maintenance of the ditch is concerned.</p> <p>P. 174</p>

Raynolds, Judge. Action by W. H. Morris against T. A. Waring and Lelia W. Waring. From a judgment for defendants, plaintiff appeals. Property purchased from proceeds of unsecured notes by wife is community property and its status is' not changed because same was paid from separate property. Canfield v. Moore, 41 S. W. 718; Heidenheimer v. Mc-Kéen, 63 Tex. 229; Yesler v. Hockstetter, 30 Pac. 398; Joffrion v. Bordelon, 14 La. Ann. 618. Property was separate property of wife.

<p>■SYLLABUS BY THE COURT.</p> <p>Sections 2757, 2758, and 2764, Code 1915, interpreted, and held that property acquired by the wife under the Desert Land Act of the United States (Act March 3, 1877, c. 107, 19 Stat. 377 [U. S. Comp. St. 1913, §§ 4674-4676]),. for which she receives a patent, will be conclusively presumed, in favor of an incumbrancer in good faith and for a valuable consideration, to be her separate property.</p>

Action by N. A. Wells against Cleofas Romero, begun in justice court, and appealed to the district court. From a judgment there in his favor, plaintiff appeals. The appeal must be dismissed because appellant, prior to the perfecting thereof, accepted money in full settlement of fire judgment. 3 C. J. 681, sec. 554; Martin v. Bott, 1J Ind.

L. Medler, Judge. Action by Dorothey May Hodges against W. K. Hodges. From a judgment for plaintiff, defendant appeals. The court erred in making certain findings. 14 Cyc. 687. The finding that the wife was the owner of the furniture and household goods was contrary to the law of com-' munity property as defined in section 2764 to 2767, Code 1915. The court had no power to decree a legal separation. Weber v. Weber, 17 Pac. 866.

<p>SYLLABUS BY THE COURT.</p> <p>1. The fact that a demurrer to the complaint, interposed by one defendant, and which 'attacks the sufficiency of the complaint as against him alone,, and does not attack the general sufficiency of the complaint, remains undisposed of when the other defendant is put to trial of the issues between him and plaintiff, furnishes no ground for complaint by the. latter defendant. P. 201</p> <p>• 2. In the absence of statute, as in this state, failure of a creditor to present his claim against the estate of a deceased principal ,or failure to bring suit against the principal upon request or demand of the surety,' does not re.lieve the surety from liability upon the demand. P. 202</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. As between the vendor of mortgaged premises and the vendee wbo assumes and agrees to pay the mortgage debt, the latter becomes the principal debtor and the former be-. comes bis surety. But as between tbem and tbe mortgagee, they both remain principal debtors. P. 205</p> <p>2. A finding of fact sustained by substantial evidence will not be disturbed. P. 205</p> <p>3. Relate to tbe facts. P. 206</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Where a bona fide attempt has been made to perfect an appeal under the provisions of chapter 77, Laws 1915, and said provisions have been followed, the same will amount to, showing of good cause which will defeat a motion by appellee to docket and affirm the judgment under the provisions of section 4490, Code 1915,. notwithstanding the procedure should have been according to the law prior to the act of 1915, supra.</p> <p>P. 209</p> <p>2. Property acquired by the wife under Desert Land Laws of the United States (Act Cong. March 3, 1877, e. 107, 19 Stat. 377 [U. S. Comp. St. 1913, §§ 4674-4676]), will be conclusively presumed, in favor of an incumbrancer in good faith and for a valuable consideration, to be her separate property.</p> <p>' P. 209</p>

<p>Appeal from District Court, Guadalupe County; D. J. Lealry, Judge.</p> <p>Action by E. E. Shipp, against the El Paso & Southwestern Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from District Court, Guadalupe County; D. J. Leahy, Judge.</p> <p>Action by W. E. Simon aginst the El Paso & Southwestern Company. Prom a judgment for plaintiff, defendant appeals.</p>

C. Mechem, Judge. Petition by the State, on the relation of the New Mexico State Bank, for mandamus to Max Montoya, Treasurer of Socorro County. From a judgment for defendant, plaintiff appeals. STATEMENT OP PACTS. This is an action in mandamus against the county-treasurer of Socorro county, N. If.

<p>Appeal from District Court, Union. County. Leib, Judge.</p> <p>James C. Pruett was convicted of voluntary manslaughter, and appeals.</p>

<p>Appeal from District Court, Santa-Fé County; E. C. Abbott, Judge.</p> <p>Action by Paul Doran against the First National Bank of Clovis. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from District Court, Bernalillo County; H. F. Rajmolds, Judge.</p> <p>Action by Ruth L. King, administratrix of the estate of Lewis EL King, against A. B. Stroup. From a judgment for defendant, plaintiff appeals.</p>

<p>Original proceedings for the disbarment of Owen N. Marrón and another.</p>

D. Leib, Judge. Action by J. F. Ward against William T. Buchanan and others. From a judgment for plaintiff, defendants appeal. STATEMENT OF FACTS. This action was brought in the district court of Quay county by the plaintiff below, who is appellee here, to quiet title to certain real estate described in his complaint, a number of defendants being joined, with only one, the appellant Roy Buchanan, appearing in answer.

<p>SYLLABUS BY-THE COURT.</p> <p>1. Section 31, Code 1915, makes it the duty of a drover, when the stock of any resident shall intermix with any drove of animals, to immediately cut out and separate such stock from such drove. p. 277</p> <p>2. The credibility of witnesses is, in all cases, a question for the jury, and the rule applies, although the testimony of the party or of interested witnesses or of other witnesses is uncontradicted. P. 278</p> <p>3. The question of variance between the brand alleged in the indictment to have been upon the alleged stolen animal and the certificate of brand, introduced in evidence upon the trial,, will not be considered in the appellate court, where such question was not raised in the trial court. State v. Klasner, 19 N. M. 474, 145 Pac. 679, followed. P. 279</p> <p>4. No alleged errors, unless they are jurisdictional, will be considered, except those set out in the motion for a new trial. P. 280</p> <p>5. Section 3142, Code 1915, which, provides: “When an indictment is found, the names of the witnesses examined before the grand jury, must in all cases be inserted at the foot of the indictment or indorsed thereon before it is presented to the court” — • is directory, and it' is not error for the trial court to permit a witness, who testified before the grand jury and whose name was not properly indorsed upon the indictment, to testify, where defendant did not claim or attempt to show surprise or prejudice by reason of the omission of the name of such witness from the indictment.</p> <p>P. 281</p> <p>6. Where the jury has an equal opportunity of determining whether a character appearing upon a certificate of brand corresponds with a similar character shown in the indictment, as has a tendered witness, there is no error upon the part of the court in refusing to permit such witness to testify as to whether such characters are the same or dissimilar.</p> <p>P. 281</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence examined, and held to show no variance between the allegation of the indictment that the weapon employed was unknown and the proof adduced by the state.</p> <p>P. 286</p> <p>2. Courts are not bound to give instructions, which, even if correct, are merely cumulative, and state in another form a proposition of law already given to the jury.</p> <p>P. 287</p>

<p>SYLLABUS BY THE COURT.</p> <p>A party seeking a postponement of a trial for any cause should ordinarily apply therefor by written motion, supporting same by affidavit.</p>

<p>Appeal from District Court, Chaves County; Richardson, Judge.</p> <p>Action by Harry V. Craig and another against Ralph M. Parsons and another. From a judgment for plaintiffs, defendants appeal.</p>

<p>Error to District Court, San Juan County; Abbott, Judge.</p> <p>Action by J. Allen Johnson against T: L. Loftus and others. Judgment for plaintiff, and defendants Loftus', and others bring error!</p>

D. Leib, Judge. Action by George W. Pople against John Orekar. From judgment for plaintiff, defendant appeals. STATEMENT OF FACTS. This is an action in equity to foreclose a mechanic’s lien, arising in connection with the erection of a twot story brick building in the city of Raton.

<p>SYLLABUS BY THE COURT.</p> <p>1. Tbe standard by which the jury must determine the reasonableness of belief of accused that dnagér is so apparently imminent that he must act in self-defense is that of an ordinary person of firmness, reason, and prudence, not that such question should be determined from the standpoint of the accused; and instruction given by the, court held proper. P. 321</p> <p>2. Evidence of transaction occurring between appellant and deceased a few minutes previous to the act of homicide and closely connected therewith held improperly excluded.</p> <p>P. 322</p> <p>3. Doctrine of “harmless error” held inapplicable.</p> <p>P. 325</p>

Action by the State, on the relation of J. M, Cunningham and another, administrators of the estate of F. H. Pierce, for mandamus to Eugenio Eomero, treasurer and ex-officio collector of taxes of San Miguel County. From a judgment for relators, defendant appeals. STATEMENT OP PACTS.

<p>Appeal from.District Court, Curry County; McClure, Judge.</p> <p>Bobert N. Williams was convicted of wrongfully accepting a bribe, and he appeals.</p>

<p>Appeal from District Court, Socorro County; M. C. Mechera, Judge.</p> <p>Action by Thomas E. Watters, as trustee, against the Treasure Mining & Reduction Company and others. From a judgment for plaintiff, defendants appeal.</p>

Action by M. O. Llewellyn against the First State Bank of Las Cruces and others. There was a judgment for the latter, and the former brings error. STATEMENT OF FACTS. On April 8, 1916, pursuant to proceedings theretofore had, the district court of Doña Ana county, N. ÍVL, rendered judgment for $64,298.11, in favor of plaintiff in error, M. O. Llewellyn, for the use and benefit of the state of New Mexico, against W. N. Hager, T. R. H. Smith, and others.

<p>Appeal from District Court, San Miguel County; Leahy, Judge.</p> <p>Action between Peter Roth and Tranquilino Yara. From a judgment for the latter, the former appeals.</p>

<p>Error to District Court, Chaves County; G. A. Richardson, Judge.</p> <p>Action by A. J. Crawford against W. E. Rogers. There was a judgment for plaintiff, and defendant brings error. Transcript of proceedings stricken.</p>

Action between Eli Knight and Irby L. Fairless and another. From judgment for the latter, former appeals. On motion to dismiss appeal.

Mechera Abbott, Judge. Separate actions by Elias Clark against the Queen Insurance Company and ten other insurance companies were consolidated for trial. Judgments for plaintiff, and each defendant appeals.

Action by H. D. Terrell against O. L. Owen, in which W. G. Sargent, State Auditor, and another, were summoned as garnishees. There was a judgment for plaintiff, and defendant brings error. STATEMENT OP PACTS.

Suit to quiet title by Henry C. Holthoff against Phoebus Freudenthal and others. From a judgment for plaintiff, the named defendant appeals.

<p>Appeal from District Court, Socorro County; Neblett, Judge.</p> <p>David Baca was convicted of criminal contempt and he appeals.</p>

Action by the First National Bank of Iowa City against F. C. Swartz. A'judgment for plaintiff was set aside, and from a judgment for defendant dismissing the complaint, plaintiff appeals.

<p>Appeal from District Court, Doña Ana County; Medler, Judge.</p> <p>Action by W. A. Fleming Jones and another against the Board of County Commissioners of Doña Ana County. From a judgment sustaining a demurrer to the complaint, plaintiffs appeal.</p>

Iiayden Dallas was charged with trespassing upon a school section. His demurrer was sustained in part, and the State appeals.

<p>SYLLABUS BY THE COURT.</p> <p>A judgment debtor under a judgment of tbe Supreme Court of the state may be garnished in an action in the district court brought by a third person against the judgment creditor.</p>

McClure, Judge. Quo warranto by the State of New Mexico, on relation of J. H. McCain, against Mrs. O. R. Haymaker. Judgment of ouster, and defendant brings error. STATEMENT OP PACTS. This proceeding was instituted in the district court of Chaves county by an information in the nature of quo warranto on the relation of J. H. McCain against Mrs. O. R. Haymaker, seeking a judgment of ouster against her as a member of the board of education of the city of Roswell.

<p>Error to District Court, Otero County; Medler, Judge.</p> <p>Action by the Douglas Candy Company against W. T. Cox. Judgment for plaintiff, and defendant brings error.</p>

Action by1 the First National Bank of Albuquerque against K. K. Scott, judgment debtor, and O. N. Marrón, Treasurer of the State of New Mexico, garnishee. Judgment for defendant on sustaining a demurrer to the complaint, and plaintiff appeals. The salaries of public officials'may be garnished in the hands or custody of other public officers. C. 26, Laws 1915.

Mandamus by the State of New Mexico, on the relation of the Town of Portales, against the Board of County Commissioners of Roosevelt County and others. Peremptory writ issued, motion for supersedeas denied, and the defendants appeal.

Prohibition by Jacob H. Crist against Edmund C. Abbott, Judge of the District Court of the First Judicial District of the State of New Mexico, and Alexander Bead, to prohibit such court from proceeding to hear and try an election contest by Bead against the relator.

. Action by Koyal Jackman against the Atchison, Tbpeka & Santa Fe Kailway Company. Judgment for defendant, and plaintiff appeals. Appeal should be dismissed, because no move had been made by appellant towards taking of an appeal prior to time c. 77, Laws 1915, became effective. C. 77, Laws 1915; Sec. 4471, Code 1915; Sec. 34, Art. 4, Const.; Wilson v. Kryger, 51 L. K. A. (N S.) 760; Sanders v. Mbore, 14 Bush. 97; Moss v. Hall, 1 Ky. L. 280.

Action by’ Benjamin B. Spencer against Gross Kelly & Go. and Richard Dunn and Edward B1. Wheeler, eo-partners, trading under the name of the Mora Timber Company, with counterclaim by defendants. Judgment for plaintiff, and defendants appeal. Rule of damages where one party prevents another from performing contract. 3 Elliott on Contracts, Sec. 149; W. TJ. Tel. Cb. v. Long-well, 21 Pac. (N. M.) 339.

Replevin by James Sakariason against Emil James, as Sheriff of Socorro County. Judgment for defendant against plaintiff, and plaintiff appeals. STATEMENT OP PACTS.

W. Raynolds, Judge. Action in ejectment by Dolores Otero de Burg against Manuela Amienta. Judgment for defendant on a directed verdict, and plaintiff appeals. Land was sufficiently identified and it was unnecessary to establish exact amount of encroachment at all points for all purposes of case. 15 Cyc. 94; 17 Cent. Dig. 2363; Trustees La Joya Grant v. Trustees Helen Grant, 20 N. M. 145; Speight v. Jenkins, 5 N. E. 385; Louis v. Giroir, 38 La.

T. McClure, Judge. Action between James B. Herbst and William E. Eogers. Judgment for Eogers, and Herbst appeals. The grant of an indefinite easement, when once located and fixed, cannot thereafter be changed or enlarged without the consent of all parties. 14 Cyc. 1205; Jennison v. Walker, 11 Grey 423; Moor-head y. Snyder, 31 Pa. St. 514; Garraty v. Duffy, 7 E. I. 476; Onthank v. Lake Shore & M. S'. E. Co., 71 N. Y. 194, 27 Am.

C. Abbott, Judge. Action by Juan B. Leyba against the Albuquerque & Cerrillos Coal Company. Judgment for defendant on a directed verdict, and plaintiff appeals. The demurrer to- the evidence admitted all the facts which the evidence tended to prove and all reasonable inference therefrom. The evidence submitted must be considered in its most favorable light in favor of the party against whom the demurrer is directed.

<p>Error to District Court, Colfax County; T. D. Lieb, Judge.</p> <p>Suit by the Raton Waterworks Company against the City of Raton. Judgment for defendant, and plaintiff brings error.</p>

A. Richardson, Judge. Suit to quiet title by the Security Investment & Development Company against James W. Norment and others, in which the Capital City Bank appeared and filed answer containing a counterclaim and sought to have its lien declared prior to the estate of the plaintiff. Prom an order striking its appearance and answer from the files, the Capital City Bank appeals. Appellant had such an interest as entitled it to appear and defend.

Original mandamus by the State of New Mexico, on relation of the Meyers Company, against Herbert E. Baynolds, Judge, etc. STATEMENT OP PACTS. This is an action in mandamus, brought in this court on the relation of the Meyers Companjq against Hon, Herbert F. Eaynolds, district judge of the Second judicial district.

W. Raynolds, Judge. Joseph B. Tanner was indicted for obtaining cattle by false and fraudulent pretenses, his motion to quash the indictment was granted, and the State appeals. STATEMENT OF FACTS.

.Appeal from District Court, ¡Sierra County; M. C. Mechem, Judge. .From an order of the district court denying relief against two levies made by the county, the Atchison, Topeka & Santa Fe Railway Company appeals.

<p>SYLABUS BY THE COURT.</p> <p>Costs are the ereatfires of statute, and in the absence of statute authorizing the taxation of costs none can be taxed in disbarment proceedings. Held, that section 4282, Code 1915, does not authorize taxation of costs in disbarment proceedings.</p>

Action by the State of New Mexico, on the relation of Placido Baca y Baca, for himself and others similarly situated, against the Board of County Commissioners of the County of Guadalupe and others, in which Jones & Gleason, a partnership, intervened. Injunction dissolved, and relators appeal. STATEMENT OR RACTS.

Action for injunction by George E. Cook against the City of Socorro, James G. Fitch, and others, in which only defendants James G. Fitch and J. C. Mayer appeared and answered, with counterclaim. Judgment 'dismissing the suit and awarding the relief prayed for in their counterclaim, and plaintiff appeals. As city acquired its powers from act 1880, S. 1, C. 39, L. 1884 had no application to it. Socorro Co, v. Levitt, 4. N. M. 37, 12 Pac. 759; Sec. 1707 Cl L. 1884; Terr, ex rel.

Appieal from District Court, McKinley County; Raynolcls, Judge. Action for injunction by John Schwartz and others against the Town of Gallup and others. Judgment for defendants dismissing the complaint, and plaintiffs appeal.

Pedro Montes was convicted of murder in the first degree, and he appeals. Indictment does not sufficiently allege death. Territory v. Lovato, 17 N. M. 666 is contrary to forms and precedents of law and should be overruled. The common law is the rule of decision and practice here. Du Bor v. State, 18 N. M. 246. Indictment is defective because place of death not averred. Ball v. U. S., 140 IT. S. (L. ed.) 377; Albright v. Terr., 69 Pac.

<p>SYLLABUS BY THE COURT.</p> <p>1. Chapter 47, Laws of 1917, impliedly repeals chapter 75, Laws of 1913, so far as that act applies to municipalities having a population of less1 than 1,000, and such municipalities are hereafter to he governed in matters of local option elections and rights arising therefrom hy chapter 78 of the Laws of 1913, as amended. P. 537</p> <p>2. A license to retail intoxicating liquor is neither a property right nor a contract. It is in no sense a contract made by the state with the party holding the license; it is a mere permit, subject to be modified or annulled at the pleasure of the Legislature. P. 543</p> <p>3. A petition in local option elections, to give jurisdiction, must contain all the averments1 required by statute; and where the petition for the election is not in compliance with the statute, all proceedings based thereon are void, and no jurisdiction to or'der an election is acquired, and the election in such case is a nullity. P. 544</p> <p>4. Under chapter 78, Laws of 1913, the county commissioners have power to order a local option election, where the petition defines a district and is signed by the requisite number of electors; and an inclusion of territory in which a local option election has1 been held within four years, while erroneous does not invalidate the election, provided the elimination of such territory will not change the result.</p> <p>P. 544</p> <p>Robert, J., dissenting in part.</p>

Petition by the State of New Mexico, on the relation of Elias Garcia, Sheriff of Eio Arribo County, for a writ of mandamus against the Board of County Commissioners of Eio Arriba County. Prom a judgment for relator, respondent appeals. The evidence is insufficient to support the judgment rendered. 17 Cye. 818; Armijo v. Board of County Com’rs, 11 N. M. 294; Howell v. Medler, 41 Mich. 141, 2 N. W. 911; Chicago Gen’l Ey. Co. v. Kluezejnski, 79 111.

<p>SYLLABUS BY THE COURT.</p> <p>1. Where title is claimed by adverse possession, under color of title the possession must be actual and not constructive in its nature. It must be a possession subjecting the land to the will and dominion of the occupant, and must be evidenced by those things essential to its beneficial use, and must be clearly defined, open, actual, visible, exclusive, hostile, and continuous. P. 572</p> <p>2. The doctrine of adverse possession is to be taken strictly, and is not to be made out by inference, but by clear and positive proof. Evidence examined, and held not to furnish clear and positive proof of adverse possession for the requisite length of time to give the claimant title to the land in dispute under section 3364, Code 1915. P. 573</p> <p>3. Where a party enters into possession of a tract of land conveyed to him under an invalid deed, which constituted color ofl title, and erected a house thereon and fenced and improved 27 acres out of the entir'e tract of 8,000 acres conveyed by his deed,, and as to1 the remainder of the land simply grazed cattle upon it, and the true owner of the land, durang the time appellant, claims the statute was running in his behalf, likewise used said land for grazing purposes, and no portion of said land, save as stated, was inclosed' and the adverse claimant took no steps to prohibit the true owner from using the land; such use of the land, not enclosed by the adverse claimant, by the true owner', neutralized the adverse possession of the claimant, and he acquired no title thereto.</p> <p>P. 578</p>

<p>SYLLABUS BY THE COURT.</p> <p>Appeal will be dismissed where seasonable advantage- is taken of default in filing abstract of record under section 4503,, Code 1915, as amended by section 6, c. 77, Laws of 1915.</p>

Court, Bernalillo County; Eaynolds, Judge. Petition by Jeanette W. Plournoy, widow, for an allowance for support out of the estate of M. W. Plournoy,. deceased. Prom a judgment of the district court, on a trial de novo upon appeal from the probate court, granting petitioner an allowance, Nell E. Plournoy Andros, executrix, appeals.

Sidnej'’ J. McCracken was convicted of murder in the second degree, and he appeals. When application for continuance complies with statute court has no discretion in the matter. Terr v. Torres, 16 N. M. 615. Court erred in. not giving requested instruction as to the appellant’s right to defend his propertjq without modification. Stillwell v. Duncan, 44 S’. W. (Ivy.) 357; Boss v. State.

<p>SYLABUS OP THE COURT.</p> <p>1. A water or electric light company, engaged in supplying water or light to residents of a¡ municipality under a franchise from such municipality, cannot lawfully refuse to furnish such service to a consumer, because such consumer declines to pay for' past-due service for some other and independent use, or at some other place of residence.</p> <p>P. 596</p> <p>2. Such a company has the right to demand payment in advance, or a reasonable deposit to secure payment for the contemplated service.</p> <p>P. 596</p> <p>3. A public service corporation cannot cut off a supply of water or electricity to enforce a payment of a disputed claim.</p> <p>P. 597</p>

<p>SYLABUS BY THE COURT.</p> <p>Under the .provisions of section 2070, Code 1915, it is the-duty of the district court in an election contest to accept as triie the facts alleged in the notice, and not denied by the contestee in his answer, filed within 20 days, and no proof is required to support such undenied allegations..</p>

Action by R. E. Levers against the Atchison, Topeka & Santa Fe Railway Company. Judgment for plaintiff, and defendant appeals.

Action by the Southwestern Savings Loan & Building Association of Las Yegas against Arthur L. Await, in which the Board of County Commissioners of Curry County and another were summoned as garishees. From judgment for plaintiff, defendant appeals. The act of March 23,. 1915, insofar as it applies to salaries of public officers is unconstitutional and void.

<p>SYLABUS BY THE COURT.</p> <p>An appellate court will not consider assignments of error based on the giving or refusal of instructions, where the record fails to show that all the instructions ar'e embraced in the transcript.</p>

Action by E. C. Jackson against 03. M. Brower. Judgment for plaintiff, motion for new trial overruled, and defendant appeals. The lapse of an unreasonable time may operate to revoke a contract of employment of a broker. Staehlin v. Ivramer, 118 Mo. App. 329; Turner v. Snyder, 118 S. W. 858. Dissolution of partnership authorized to act as brokers terminates the contract of employment. Larson v. Newman, 23 L. B. A. (N. S'.) 849; Martine v. Ins.

Suit by Bertha IT. Kleiner and others against James M. O’Kelley, with cross-complaint by one Redwine and one Reusser. Judgment for plaintiff Kleiner and for cross-complaints against defendant, and he appeals.

<p>Appeal from District Court, Eddy County; Richardson, Judge.</p> <p>Suit by the State National ¡Bank of Artesia against Joe A. Clayton and others; Joyce-Pruett Company, intervener. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Original proceeding in contempt by State of New Moxicoo on tbe relation of lí. L. Patton, Attorney General, against Owen N. Marrón and Francis E. Wood.</p>

L. Medler, Judge. Action by the State of New Mexico against the First State Bank of Las Cruces. Judgment for defendant, and plaintiff appeals. Affirmed. The money on deposit in the bank at the time it closed its doors was the property of the State. College v. Willis, 52 Pac.

Suit by A. J. Crawford against W. E. Rogers. Judgment for plaintiff, and defendant brings error. ON MOTION FOR REHEARING. Amendment did not waive ruling on defenses to which demurrer ivas sustained. 1 A. & E. P. & P., 624; Ingham v. Dudley, Admr. 14 N.W. 82; 31 Cye. 746; Hagely v. Hugely, 9 Pae. 305; Eulsom v. Winch, 19 N. W. 305; Traveler’s Ins. Co. v. Redfield, 40 Pac. 185; Scott v. Halloek, 47 Pac. 968, Everything not contained in amended pleading is abandoned.

F. Baynolds, Juclge. Action b}1- the Caledonian Coal Company against J. IT. Young. Judgment for defendant, and plaintiff appeals. The promise to pay when the debtor was able is too indefinite and uncertain to constitute a. condition. Sundling v. Willey, 9 A. & E. Ann. Cas. 646; ITorner v. Starkie, Admx., 27 111. 13; Lime v Miller, 15 N IT. 522; Cummings v. Gassett, 19 Yfc. 308; Norton v. Shepard, 40 Am. B. 158; Blanc v. Blank, 43 Am. Dec. 175.

Lawrence B. Babcock was convicted of an assault with a deadly weapon, and lie appeals. Court should have permitted jury.to take exhibits with them in the jury room. Sec. 4469, Code 1915; Terr. v. Eagle, 15 N. M. 609; 4 Words & Phrases, 3666; 8 Words & Phrases, 7544; Cardenas v. Miller, 49 Am.