Volume 25 — New Mexico Reports

Appeals from District Court, Chaves County; Richardson, Judge. Action by the Joyce-Pruitt Company and two actions by the Pecos Valley Lumber Company against the Dexter State Bank. Judgments for plaintiffs, and defendant appeals.

Action for partition by Mary Lester Field against Clarence A. Hudson. Plaintiff’s motion for judgment after mandate denied, and new commissioners to partition tbe land appointed, her exceptions to a report overruled, and there was a decree for a sale, and plaintiff appeals.

Samuel Whitener was convicted of statutory rape and he appeals. Tbe court erred in denying tbe motion of tbe appellant for a continuance. Terr v. Kelly, 2 N. M. 292; Terr v. Kinney, 3 N. M. 143; Terr v. Faulkner, 6 N. M. 464; Terr v. Torres, 16 N. M. 615. Uncorroborated testimony of the prosecutrix is insufficient to sustain conviction for rape where defendant under oath denies the charge. Sewers v. Terr. 50 Pac. 257; Mares v. Terr. 65 Pac. 165; State v. Baker, 56 Pac. 81.

Appeal ffom District Court, Santa Fe County;. Richardson, Judge. Nicolas Solano and others presented the noncupative will of Braulia Gonzales de Plomteaux for probate. From an order sustaining the validity of a will, Frank Plomteaux appeals. Real estate cannot be devised by verbal will. Codif. 1915, Secs. 5857; 5861, 4760 Lewis vs. Aylott, 45 Texas, 190; Moffett vs. Moffett, 67 Texas, 642; 4 S. W., 70. Maurer vs. Reifechneider, 89 Nebr., 673; 132 N. W. 197; Am. Ann.

■ Appeal from District Court, Santa Fe County; Holloman, Judge. Mandamus by the State of New Mexico, on relation of Henry F. .Stephens, against the State Corporation Commission, Hugh S. Williams and another, individual members thereof. Judgment for plaintiff, and defendants appeal. Peremtory writ of mandamus should not have issued because there was no funds in the treasury subject to draft by the warrant of the auditor.

<p>Appeal from District Court, Socorro County; M. C. Mechem, Judge.</p> <p>Action by Herm A. Funke against T. S. Presley. Judgment for plaintiff, and defendant appeals.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Upon the trial of one charg-ed with unlawfully and knowingly permitting a game of chance for money to be played on premises occupied by him, the record of the information charging third persons with unlawful gaming and their pleas of guilty thereto is inadmissible as hearsay and as depriving the defendant of his constitutional right to be confronted bjr the witnesses against him.</p>

A. B. Smith, alias Dashley, petitioned the Supreme Court to stay the execution of his sentence to death after conviction of murder until he should be restored to his reason.

Action for injunction by John W. Wilson against O. A. Matson, as Treasurer and ex-officio Collector of the County of Bernalillo, N. M., and Susie P. Bryan. Defendants’ demurrers to the amended complaint sustained, and judgment for defendants, dismissing the complaint and dissolving a temporary restraining order, and plaintiff appeals. Suffering property to b¿ sold for delinquent taxes of one year extinguished right and title of tax purchaser of former year.

<p>SYLLABUS BY THE COURT.</p> <p>Where issue in trial court is whether mortgaged chattels have become affixed to the realty, and judgment of foreclosure is rendered, without a separate or definite finding on the subject, such judgment is equivalent to a finding' that the chattels have not became affixed to the realty, and, there being no evidence to the contrary, the judgment is to be affirmed.</p>

William Faggard was indicted for obtaining money by false pretenses. Demurrer to the indictment was sustained, and the State appeals.

Action by Roxia Elizabeth Barney, a minor, by William B. Bunker, her next friend, against George H. Hutchinson, administrator, and others. From a judgment dismissing the action, plaintiff appeals. Frank Barney was legally adopted. Lindsley v. Patterson, 177 S. W. 826; Horton v. Troll, 183 Mo. App. 677. • Contracts of adoption fully performed on one side will be specifically enforced. 4 Pom. Eq. Jur.

<p>Appeal from District Court, Santa Fe County; Leahy, Judge.</p> <p>Suit by the Continental Oil Company against the City of Santa Fe. From a judgment dismissing the complaint plaintiff appeals.</p>

. Information for contempt by the State of New'Mexico against the New Mexican Printing Company, a corporation, and others.. Motion to quash the information and rule to show cáuse 'denied, and judgment against' one of 'the individual defendants sentencing him to a jail term, and he appeals.

<p>Original mandamus by state of New Mexico, on the relation of Fabian Martinez, against Reed Holloman, District Judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. In a suit by the holder of a negotiable instrument acquired from the payee before maturity, where the maker shows fraud in the inception of the instrument, the burden is upon the holder to show that he acquired title to the paper in due course. P. 124</p> <p>2. To remove the burden thus imposed, the holder was required to show by competent evidence: (1) That he became the holder of the note before it was overdue and without notice that it had been previously dishonored, if such was the fact; (2) that he took it in good faith for value; and (3) that at the time it was negotiated to him he had no notice of any infirmity in the note, or defect in the title of the person negotiating it. P. 124</p> <p>3. To justify the court in directing the verdict in favor of the holder, or in setting aside a verdict against the holder, the testimony of the bona fide character of the holder must not only be without substantial evidence tending- to impeach it, but showing in its support must be so clear and unequivocal as to leave no room for difference in opinion concerning it among fairminded men. P. 129</p> <p>4. In this case the only evidence of the bona fide purchase of the note in question was given by the holder. Evidence examined, and held that his evidence was possible of contradiction in the circumstances; that its truthfulness and accuracy were open to a reasonable doubt upon the facts of the case; that the circumstances and the interest of the witness furnished a proper ground for disbelief of his statements by the jury. P. 129</p>

Action by P. E. Hubert, receiver, against the American Surety Company. Judgment for defendant, and plaintiff appeals. No cost bond having been filed with the District Court for appeal as provided by Section 15 of the Appellate Act, said appeal failed, and this Court has no jurisdiction of said cause, nor did it ever acquire jurisdiction of said cause, and the appellant now has the right to apply for a new appeal or sue out a writ of error.

C. ■ Abbott, Judge. Suit by Acequia del Llano and others against Acequia de Las Joyas del Llano Frio, Teófilo Lopez, and Juan Antonio Mirabal.

Suit for injunction by J. M. Palmer and others against the Town of Farmington and others, to have certain improvement assessments declared void and to enjoin their collection; and suit by the Board of Improvements District No. 1 of the Town of Farmington against J. M. Palmer and others, to collect such assessments.

Action by the Independent Steel & Wire Company and Pittsburg Trust Company against the New Mexico Central Railroad Company. Appeal by Ralph C. Ely, receiver of the New Mexico Central Railroad Company, .from an order fixing his compensation as receiver, and disallowing certain items of expenses incurred by him.

Petition by A. B. Stroup and others for the creation of Bernalillo County Drainage District No. 1. From the overruling of a motion to strike from the answer and remonstrance that part thereof praying that certain names be withdrawn from the affirmative petition, and dismissing the petition, A. B. Stroup and others appeal.

Proceedings by tbe State of New Mexico, on relation of Alexander Read against Jacob H. Crist. Judgment for respondent, and relator appeals. Sec. 1993, Code 1915, is mandatory, not directory, and ballots cast in violation thereof were void.

<p>SYLLABUS BY THE COURT.</p> <p>1. Section 36, c. 43, Laws of 1917, interpreted, and held to prevent the extension of time to settle bills of exceptions unless a praecipe for the record on appeal or error shall have been filed in the clerk’s office within the time prescribed.</p> <p>P.. 201</p> <p>2. Where assignments of error relate only to matters shown by the bill of exceptions, and which bill has been stricken from the record, there is nothing before the court of which appellant complains, and the judgment will be affirmed on motion. p. 203</p>

<p>Appeal from District Court, Quay County, Leib, Judge.</p> <p>John Henry Towndrow was eonvicted of voluntary manslaughter. His motion for a new trial was overruled, and he appeals.</p>

Creditor’s bill by the First National Bank of Las Cruces against D. F. Baker and others. Demurrer to answer overruled, and bill dismissed, and plaintiff appeals. Judgment rendered upon judgment notes was valid. Black on Judgments, Art. 170; Secs. 3071 to 3078 Code 1915; 23 Cyc. 704; Heslip v. Anderson, 134 111. App. 8; Black on Judgs. Art. 67; 23 Cyc. 699; Packer v. Roberts, 140 111. 9, 29 N. E. 688; Victor v. Johnson, 148 Pa. St. 583, 24 At. 173.

Suit by Neis Frostenson against W. A. Marshall and others for damages for willful trespass and for an injunction. Judgment for plaintiff ,and defendants appeal. Plaintiffs failed to erect a suitable and legal fence and therefore were not entitled to judgment. Sections 2340, 2342, 2341, 2343, 2344, 2345, Code 1915; Hill v. Winkler, 151 Pac. 1014; Buford v. Houtz, 133 U. S. 320.

R. Ryan, Judge. Action by W. H. Byerts against Franz Schmidt and Esther Schmidt, his wife. Judgment for defendant Esther Schmidt and in favor of plaintiff against defendant Franz Schmidt, and he appeals.

<p>Appeal from District Court, San Miguel County; D. J. Leahy, Judge.</p> <p>Sol Jacoby was convicted of unlawfully buying and receiving stolen property, and he appeals.</p>

<p>SYLLABUS BY THE. COURT.</p> <p>1. Where there is substantial evidence supporting' the verdict, the Supreme Court will not undertake to weigh the evidence. P. 229</p> <p>2. Where, under a larceny statute, value of the thing or article stolen is not made material, it need not be alleged, and, if averred, it need not be proved. P. 229</p>

<p>SYLLABUS BY THE COURT.</p> <p>Evidence of experiments or experiences is inadmissible to contradict the evidence of a party, unless the same are shown to have been had under similar circumstances.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Larceny is a “continuing- offense,” and, if property is stolen in one county and taken by the thief into another, he is g-uilty of a new caption and asportation in the latter county.</p> <p>P. 232</p> <p>2. It is only when the evidence of ownership of animals depend upon a brand that a certified copy of the recorded brand is necessary to be introduced in evidence. P.» 232</p> <p>3. A verified motion for a continuance, setting- up facts calculated to show prejudice and bias of the regular panel of jurors in attendance upon the court, and which was overruled by the court, presents no facts to this court upon which the action of the district court can be reviewed, in the absence of a showing by way of bill of exceptions of the existence of bias or prejudice on the part of the jurors. P. 232</p>

Arthur Gurley was indicted for unlawful and feloniously entering into a contract to restrict trade and commerce, his demurrer to the indictment was sustained, and the State appeals. STATEMENT OF FACTS. This is an appeal from the district court of the Fifth judicial district within and for the county of Curry.

Action by J. W. Stockard against H. B. Hamilton, with garnishment against the Auditor and the Treasurer of the State of New Mexico. Demurrer to complaint overruled, and judgment entered against defendant and the garnishees, and defendant appeals. State disbursing officers are not subject to writ of garnishment for moneys constituting balance of salary due the district attorney. Art. 6, Sec. - 24, Const, of N. M.; Art. 2, Chap. 30, N. M. Stats.

L. Medler, Judge. Affidavit or information by tbe State of New Mexico against Augustin Kayser for contempt of court. Demurrer to affidavit or information overruled, and motion to discharge the rule overruled, and defendant found guilty and sentenced to jail, and from the judgment and sentence, he appeals. Court was without jurisdiction because there was not sufficient information or affidavit of person having knowledge of the facts to support the proceeding.

Suit in justice court by J. T. Pointer against W. R. Lewis, with cross-complaint by defendant. Judgment in justice court for plaintiff, and from the judgment of the district court, on appeal in favor of plaintiff, less the defendant’s claim, he appeals. Testimony tending to prove items in an account was improper because appellant demanded production of itemized account and appellee failed to 'furnish same. Sec. 4449 Ann.

Suit by the First National Bank of Roswell against B. D. W. Payton and another, with attachment on ground of defendants’ nonresidence. Motion to dismiss attachment denied, and judgment for plaintiff with levy and sale, and defendants appeal.

Action for injunction by L. M. Crawford, trustee, against Charles A. Longuemare aud others. Temporary injunction issued ex parte, and from its dissolution, on defendants’ motion, plaintiff appeals.

Suit to quiet title by the Abo Land Company against James P. Dunlavy and Porter H. Hower. Disclaimer by defendant Dunlavy, and judgment for plaintiff against defendant Hower, and he appeals.

<p>SYLLABUS BY THE COURT.</p> <p>1. The curative provision of section 25, c. 22, Laws 1899, relative to tax sales, does not apply to jurisdictional defects.</p> <p>P. 279</p> <p>2. The fact that property was in fact sold for delinquent taxes is jurisdictional; for, if no sale in fact occurred, the bases for the subsequent proceedings would not exist. P. 27 9</p> <p>3. The proceedings on which tax sales depend are to be proved by the records or by the originals from which the records should be made up. The fact that real estate was sold for delinquent taxes must necessarily be established by the record, and cannot be proved by the parol evidence of the county treasurer who made the sale. P. 280</p> <p>4. Section 23, c. 22, Laws 1899, requires the collector to keep a book of sales containing the date of sale, description of the property sold, name of the purchaser, and amount for which sold. Section 22 of the same act provides that, where property is struck off to the county, the collector shall make an entry, “Sold to the county,” on the tax roll opposite the tax. It is the duty of the county treasurer making the sale to record the facts in the official record, and such entry cannot be made by the successor in office of the county treasurer who made the sale, such successor having no personal knowledge of the fact recorded, and there being no memorandum from which to make the same. P. 280</p> <p>5. It is essential to the official character of official registers that the entries in them be made promptly, or at least without such long delay as to impair their credibility, and that they be made by the person whose duty it was to make them and in the mode required by law, if any has been prescribed. P. 280</p> <p>On Rehearing.</p> <p>6. The Legislature may pass a retroactive law operating on property belonging to the state, and such law will not be unconstitutional so long as private rights are not infringed.</p> <p>P. 287</p> <p>7. Where a tax sale certificate is held by a private individual, the purchaser has a vested right to a deed at the time specified in the law under which the purchase was made, and the Legislature cannot subsequently extend the period of redemption, as such extension would be an impairment of the obligation of the contract. But this rule is held not to apply where the state itself is the purchaser at the tax sale, as the extension of the time in that case is not a violation of contract rights, but an act of grace. P. 287</p> <p>8. Chapter 22, Laws 1899, which provide that the owner 'of land might redeem from a tax sale at any time within three years from the date of sale, was specifically repealed by chapter 84, Laws 1913. Under the later act it was provided that the owner might redeem at any time within three years from the date of recording the certificate of sale. Held, that the later act applied to certificates of sale held by the county acquired under the former law, and that the owner was entitled to redeem at any time within three years from the recording- of such certificate of sale. P. 288</p>

L. Medler, Judge. Mandamus by tbe State of New Mexico, on the relation of Mrs. Kathleen Ols and another, against Raymundo Romero, as Treasurer and Collector of Torrance County, N. M. Demurrer to complaint overruled, demurrer to answer sustained, judgment for plaintiffs, and defendant appeals. Fact that certificate of sale was not placed of record until after taking effect of Law of 1913 does not affect the period of redemption which commences to run from date of sale.

Action by Carlota G-. De Fayette and others against Martha P. Vaughn; H. S. Bowman, administrator, substituted. Judgment against defendant by default, motion to vacate default and stay execution and to permit filing of answer to amended complaint granted, and plaintiffs appeal.

Action to quiet title by Merejilda G. de Miera against V. S. Miera. Judgment for plaintiff, directing cancellation of deed to defendant, and he appeals. There is a distinction between action to remove cloud on title and suit to quiet title. 17 Enc. PL & Pr., 277; See. 4387, Code 1915; See. 4388, Code 1915. As suit -was brought to remove cloud appellee must stand or fall on allegations of complaint.

C. Mecheni, Judge. Suit by Thomas E. Watters as trustee, to foreclose a mortgage, in which there was a confirmed foreclosure sale and a distribution of purchase price, after which the Treasure Mining & Reduction Company and others moved to set aside the sale. Motion denied, and movants appeal.

<p>SYLLABUS BY THE COURT.</p> <p>Where a general and a special verdict of a jury are consistent and reconcilable, they will both be allowed to stand, and a judgment based thereon will not be disturbed upon appeal.</p>

<p>Appeal from District Court, Chaves County; McClure, Judge.</p> <p>Action by the State of New Mexico, by the Commissioner of Public Lands, Robert P. Ervien, against Levi "W. Budd, for injunction. Judgment for plaintiff on demurrer, and defendant appeals.</p>

<p>Appeal from District Court, McKinley County; Herbert F. Raynolds, Judge.</p> <p>Suit by S. E. Aldrich, Treasurer of McKinley county, N. M., against the Gallup State Bank, a corporation. Judgment for plaintiff, and defendant appeals.</p>

Action by John Ellis and William I. Shriver, joint administrators of the estate of George Ellis, deceased, against the Citizens’ National Bank of Portales, New Mexico. Judgment for defendant dismissing the complaint and plaintiffs appeal. Plaintiff had action on written guarantee signed by president of defendant bank. Ellis v. Stone, 21 N. M. 730; People’s Bank of Belleville v. Mfgs. National Bank, 101 U. S. 181; Davenport v. Stone, 53 Am.

Isidoro Martinez was convicted of first degree murder, and he appeals. Absence of trial judge and his relinquishment of control of proceedings while evidence was being introduced deprived the appellant of his constitutional right of trial by jury and of due process of law.

Mandamus by the State, on the relation of Florentino Perea and others, against the Board of County Commissioners of De Baca comity and others. From an adverse judgment, plaintiffs appeal.

' P Action by the Atchison, Topeka & Santa Fe Railway Company against the Citizens’ Traction & Power Company and others. Judgment for defendants, and plaintiff'appeals.

<p>SYLLABUS BY THE COURT.</p> <p>1. The evidence in this case reviewed, and held, that the confession made by appellant was involuntary. P. 362</p> <p>2. A cattle inspector and the owner of. the cattle appellant was accused of stealing held to be “persons in authority,” within the rule excluding a confession of a defendant in a criminal case, where the confession is induced by promises of immunity made by persons in authority. P. 364</p>

Action by Claude Bissetti against R. L. Roberts, sheriff of McKinley county, and another. Judgment for defendants, dismissing the complaint, and plaintiff appeals.

<p>Appeal from District Court, McKinley County; Raynolds, Judge.</p> <p>Action by A. J. Ferrier against R. L. Roberts, sheriff of McKinley county, and another. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from District Court, McKinley County; Raynolds, Judge.</p> <p>. Action by Paul Ferrear against R. L. Roberts, sheriff of McKinley county, and another. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, McKinley County; Raynolcls, Judge.</p> <p>Proceeding by Pete Ozella against R. L. Roberts, sheriff of McKinley county, and another. Judgment for defendants, and plaintiff appeals.</p>

Action by R. T. Holton against John N. Janes. Judgment for plaintiff, and defendant appeals. Court erred in refusing defendant’s request to have plaintiff examined by competent physicians to ascertain the nature, character and extent of his injuries. A., T. & S. F. Ry Co. v. Thul, 29 Kan. 466; Schroeder v. C., R. I. & P. Ry.

Action of forcible entry and detainer by W. R. Springer against J. R. Wasson. Judgment for plaintiff, and defendant appeals. STATEMENT OP PACTS. This is the second appeal of this case. Springer v. Wasson, 23 N. M. 277, 167 Pac. 712.

Suit by the Union Bank against William B. Mandeville. Judgment for defendant on defendant’s motion at close of plaintiff’s testimony, and plaintiff appeals. STATEMENT OF FACTS.

<p>SYLLABUS BY THE COURT.</p> <p>1. The Supreme Court on appeal will not determine whether or not there is evidence sufficient to support a material finding- oí the court or its judgment, unless such question is submitted to, and has been decided by, the trial court, by some proper proceeding calling for such decision of the question. P. 393</p> <p>2. The provision that “no exception shall be required to be reserved in the trial of equity cases or cases before the court in which a jury has been waived,” contained in section 37 of chapter 43, Session Laws of 1917, dispenses with formal exceptions to ruling's of the court in the progress of the trial, but does not authorize the determination by the Supreme Court of an issue not raised and passed upon in the district court. P. 394</p> <p>3. The question of whether there is material evidence to support a finding may be raised in any appropriate manner, such, for example, as by a demurrer to the evidence, or by a motion for nonsuit or dismissal, or by. an objection interposed to the objectionable finding on the ground that there is no substantial evidence to support it or by an exception to the finding on such ground. The essential thing is that.the attention of the trial court should be called to the fact that it is committing error in making- the finding, pointing- out wherein the finding is erroneous. ’ P. 394</p>

Charlej1- Parks and John Parks were convicted of murder in the second degree,- and they appeal. The court erred in admitting evidence of specific acts of violence and affrays on the part of Charlie Parks, during his cross-examination. 1 Wigmore on Evid., Sec. 61; 2 Id., Sec. 196; Sec. 2180, Code 1915. Proof of distinct substantive crimes is not admissible unless there is some logical connection between it and ,the crime charged.

Suit by L. G-. ShanMin against the Lawrence Coal Company. Judgment for plaintiff, and defendant appeals. STATEMENT OF FACTS.

<p>SYLLABUS BY THE COURT.</p> <p>1. A supersedeas bond, where the amount of the judgment is for a fixed sum under the provisions of the statute, must be in double the amount of such judgment, and a bond for a less sum does not have the effect of superseding the judgment.</p> <p>P. 410</p> <p>2. A bond conditioned as a supersedeas bond may be sufficient as a cost bond, where, by the terms of such bond, there is an undertaking- to pay all costs that may be adjudged against the appellant in the Supreme Court. P. 410</p> <p>3. Where an appeal is taken by all the parties against whom a joint and several judgment is rendered, and but one of the appellants files a cost or supersedas bond, the remaining- appellants will not be permitted to' join in such cost or supersedeas bond, or file a new bond after the time limited by statute for the giving of such bonds', and the appeal as to the defaulting appellant will, on motion, be dismissed. P. 410</p>

<p>Appeal from District Court, Union County; T. D. Leib, Judge.</p> <p>Action by George F. L. Bishop against E. D. Mace and others. Judgment for plaintiff and defendants appeal.</p>

Separate actions by Geren & Hamond and by E. D. McKinley against one Dernier, witli garnishment against J. L. Lawson. Judgments against garnishee in justice court, and he appealed to district court, wherein his motion for a dismissal of cases was granted, and plaintiff in each case brings error.

<p>Appeal from District Court, Quay County; Leib, Judge.</p> <p>Suit by Robert Morrison against Onie E. Robinson. Demurrer to complaint and amended complaint sustained, and plaintiff allowed an appeal.</p>

Actions by Edwin B. Kemp and by the Kemp Lumber Company, respectively, against the New Mexico Annual Conference of the Methodist Episcopal Church, South, B. P. 'Williams, and others. Dismissed as to defendant Williams, and judgments for the other individual defendants, and plaintiffs appeal.

C. Mecliem, Judge. Suit on alleged written contract by Estevan Flores against Hilario Baca. Demurrer to second amended complaint sustained and judgment for defendant, and plaintiff appeals. While there are no allegations in the complaint that the contract was made on any consideration, none are necessary, as the contract itself imports a consideration.

C. Mechem, Judge. Action by Francisco Luna, administrator of tbe estate of Santos Luna, deceased, against Max H. Montoya. Judgment for plaintiff on findings of fact and conclusions of law, and defendant appeals. If alteration on face of instrument is suspicious tben party producing it has burden of explaining its appearance; if not suspicious the burden is on the opponent to show that alteration was unauthorized. 2 Am. & Eng.

Ross Wilson was convicted of larceny, his motion for a new trial was denied, and he was sentenced, and from the conviction and sentence he appeals.

Suit bjr Socino C. De Baca against Jaeobo Perea, with counterclaim and cross-complaint by defendant. Judgment for defendant, dismissing the complaint on the merits, and plaintiff brings error.

Suit by Thomas Keehn and William TI. Keehn against William B. Harris, Mary Harper, and another. Judgment for plaintiffs against defendants Harris and Mary Harper, and Harris brings error.. STATEMENT OP FACTS. This case arose out of the following facts: The defendants in the court below, Monroe Harper and Mary Harper, were the owners of 160 acres of land known as the Bar Circle Z ranch in Lincoln county.

Suit by George W. Prichard against J. H. Fulmer, Jr., and others. Demurrer to complaint sustained and judgment of dismissal entered, and plaintiff appeals. Appellant’s right to compensation accrued' and the statute began to run when the services were rendered and completed. Harrison v. Hall, 8 Mo. App. 167; Iialev Ard. 48 Pa. St. 22 (approved in Mosgrove v. Golden, 101 Pa. St. 605); Jones v. Lewis, 11 Tex. 359; 33 Cent. Dig. tit. “Limitation of Actions,” Sec. 275.

<p>Appeal from District Court, Sandoval County; Raynolds, Judge.</p> <p>Action by J. L. Bradford against Policarpio Armijo. Judgment for defendant, and plaintiff appeals.</p>

Suit by Trannie L. Beals, formerly Ares, by lier committee, against Paul Ares, to cancel deed, avoid portions of divorce decree and establish her community property rights. Judgment for defendant. Plaintiff appeals. It is the general rule, unless otherwise controlled by statute, that community property will be equally divided between the former spouses upon divorce being granted.

A purported will of Epimenic A. Miera, deceased, • dated August 19, 1916, was filed for probate, and another purported will, dated July 16, 1916, was filed for probate by Venceslao Miera, and after hearing the probate court admitted the will of July 16, 1916, to probate, and decreed that the will of August 19, 1916, was invalid, and issued letters to John W. Akers and Venceslao S. Miera as executors and ordered that the will, the opinion of the court, and the record in the…

<p>Appeal from District Court, Union County; T. D. Lieb, Judge.</p> <p>George Hawkins was convicted of assault with a deadly weapon with intent to kill, and he appeals. '</p>

Suit'by Elijah F. Grissom against Lillian Grissom, to cancel and set aside a deed. Decree for plaintiff, and defendant brings error.

Action by A. R. Stroup and another against the Frank A. Hubbell Company. Judgment for plaintiffs, and defendant appeals. On motion to strike the bill of exceptions.

C. Mechem, Judge. Action by the .Upjohn Company against Jno. H. Sanford with garnishment against the Board of County Commissioners of Socorro County, and intervention by Bessie C-. Stephenson. Intervener’s motion to strike the writ of garnishment granted, and garnishment proceeding dismissed, and plaintiff appeals. ' Service of writ was made according to law and gave court jurisdiction of garnishment proceedings.

C. Meehem, Judge. Suit to quiet title by Jesus Maria Sandoval against tbe unknown heirs of Francisco Montes Vigil, deceased, and others, with answer and cross-complaint by the San Mateo Land Company and others. Judgment for plaintiff but quieting title to part of tracts in the defendants, and plaintiff appeals.

<p>SYLLABUS BY THE COURT</p> <p>1. Section 39, Code 1915, which authorizes the owner of unfenced lands to mark the boundaries thereof and to post notices against trespass, and upon compliance with the section to recover damages for trespass committed by animals under herd, is no bar to a suit for willful trespass where the owner has not complied with the section. P. 543</p> <p>2. Objections and exceptions to the giving or refusing to give instructions must be incorporated into and made a part of the bill of exceptions, and cannot be shown by the record proper. P. 544</p> <p>3. In a suit by the owner of lands to recover for the depasturing of the same, evidence as to the inability of the owner to procure other pasture for his animals and the depreciation of the value of his animals caused by lack of feed, occasioned by the depasturing of his land, is competent.</p> <p>P. 545</p> <p>On Motion for Rehearing</p> <p>4.The master is liable for the acts of his agent or servant acting within the scope of his employment, whether such act is negligently or wilfully committed.</p>

L. Mecller, Judge. Action by the Bank of Hatch against W. C. Mossman. Judgment for defendant, and plaintiff appeals. Under facts of this case the First' State Bank was the agent of the appellee and not the agent for collection of appellant. Moore & Co. v. Meyer, 57 Ala. 20. Clemons v. Livingston Co. Mut. F. Ins. Co., 12 N. Y. Supp. 433. Ripley Nat. Bank v. Conn. M. L. Ins. Co., 47 SW 1. Moore V. Pollock, 70 N. W. 541. Indig v. Nat. City B. 80 N. Y. 100. 59 How Pr. 10.

Action by Fred W. Thayer against the Denver & Rio Grande Railroad Company. General verdict for plaintiff, defendant’s motion for judgment on the special interrogatories and' answers thereto sustained, and judgment entered for defendant, and plaintiff appeals.

Action by George A. Blake against Vernon S. Cavins and others. Verdict for plaintiff, motion for new trial denied, and judgment on the verdict, and defendants appeal.

Mandamus by tbe State, on relation of W. Goff Black, against the Aztec Ditch Company and others. Judgment for relator,-making the alternative writ peremptory and permanent, and defendants appeal.

<p>Appeal from District Court, Bernalillo County; Raynolds, Judge.</p> <p>Action by Thomas N. Wilkerson against the City of Albuquerque. Judgment for plaintiff, and defendant appeals.</p>

Suit, by Thomas M. Jones against William A. Griffin and another to enjoin the erection and maintenance of a fence upon government land.

Replevin by Maximiana Gonzales against Pablo Gonzales, with intervention by Charles Ilfeld. Judgment for plaintiff, and intervener appeals. STATEMENT OP PACTS In 1910 or 1911, the date not being material in this case, the appellee, Maximiana Gonzales, intrusted to her' brother Pablo Gonzales, defendant in the court below, 544 sheep. These sheep belonged to her and were marked with her earmark.

Action in equity for an injunction by E. M. Biggs Tie & Store Company against the Arlington Land Company and others, with intervention and cross-complaint by T. D. Burns and others. Order dissolving temporary injunction against the original defendants made the final judgment of the coart, and judgment disposing of rights of interveners other than Burns. Objection to referee’s report overruled, and judgment entered for intervener, and plaintiff appeals.

<p>Appeal from District Court, Sandoval County; H. F. Raynolds, Judge.</p> <p>Action by John McGonigle against the Eagle Town-Site Company. Judgment for plaintiff, and defendant appeals.</p>

Action by R. W. Rounsavall & Co. against the H. Her-stein Seed Company and others. Judgment for plaintiff for nominal damages, and it appeals.

Suit by the Titsworth Company against Manual Analla, Pedro Pina, and others, to quiet title, with default or disclaimer by all defendants except Pina. Judgment for defendant Pina dismissing the complaint without prejudice, and plaintiff appeals.

<p>SYLLABUS BY THE COURT</p> <p>1. In a suit to recover damages the complaint proceeded upon two theories: (1) That the defendant was negligent in permitting fire to escape from its premises and communicate to the property of the plaintiff, and (2) the defendant being a corporation, that the fire was purposely started by an agent or employe of the defendant company and allowed to consume its property, and by reason of the starting' of the fire on defendant’s property it communicated to plaintiff’s property and destroyed the same. Defendant moved for an instructed verdict. Held, that there was no evidence of negligence on the part of the company in permitting the fire to escape from its premises; and (2) that if the fire was started by an officer, agent, or employe of the defendant company, the setting of the fire and destruction of the corporation’s property was outside of the course of employment o£ such officer, agent, or employe, and the corporation was not liable for the act of such agent.</p> <p>J?. 634</p> <p>2. The master is liable for the wanton or malicious acts of his servant if they are committed while the servant is acting in tlie execution of his authority and within the course of his employment, but the master is not liable where the servant is not acting in the execution of his master’s authority and 'within the course of his employment. P. 639</p>

C. Mechem, Judge. Action by Elfego Baca against John Fleming. Demurrer to complaint filed under stipulation was overruled, and motion to strike out an amended and supplemented complaint was denied, and-judgment for plaintiff, and defendant appeals.

<p>SYLLABUS BY THE COURT</p> <p>1. Artificial waters'are not subject to appropriation under the statutes of this state. P. 653</p> <p>2. Natural waters flowing in streams and water courses are subject to appropriation. Tile creator of an artificial flow of water is the owner of the water so long' as it is confined to his property, but when such artificial waters are deposited into a natural stream, and the creator of the flow has lost his dominion over the same, such waters become a part of the waters of the stream, and are subject to appropriation and use; but it is only after such waters reach the stream that they are subject to appropriation and use, and the appropriátor or user of such waters can acquire no right as against the creator of the flow to require him to continue supplying such waters to the stream. P. 656</p> <p>3. Where a drainage district, organized under the statutes of this state, constructs a drainage system, and the drainage ditch flows into an irrigation canal, no right on the part of the irrigation canal exists to require a continuation of such bow of water. P. 656</p>

<p>Appeal from District Court, Chaves County; McClure, Judge.</p> <p>.Action in replevin by IT. B. Roberts against Edward Lubin. Judgment for defendant, and plaintiff appeals.</p>

Suit to quiet title by Francisco Alzugaray against Primo Onzurez and unknown claimants interested in the premises adverse to plaintiff. Judgment for plaintiff by default, motion to set aside the default judgment overruled, and from a subsequent order setting aside the default, plaintiff appeals.

Claudio Armijo ivas convicted of statutory rape, his sentence was suspended during good behavior, and on his payment into court of a certain sum, he appeals.

<p>Error to District Court, Lincoln County; Medler, Judge.</p> <p>Condemnation proceedings by Hal Young and another against AYaverly G. Dugger. Judgment for planntiffs, and defendant brings error.</p>

<p>Appeal from District Court, San Miguel County; Leahy, Judge.</p> <p>Action by Henry W. Kelly against the La Cueva Ranch Company. From a judgment for plaintiff, defendant appeals.</p>

<p>SYLLABUS BY THE COURT</p> <p>The production in evidence beíore a jury of an admission outside of court, by counsel for defendants, that in his opinion, unless a certain fact could be shown, his clients would be convicted, was inadmissable and highly prejudicial and requires a reversal.</p>

<p>SYLLABUS BY THE COURT</p> <p>Where motive is sought to be shown circumstantially, the circumstances shown must bear such relation to. the facts as to be capable of creating the given state of mind of the defendant which is sought to be established. If they could not operate upon the mind of the defendant, they lack relevancy and are inadmissible.</p>

Proceeding under the Workmen’s Compensation Act by Marie Lermuseaux and another to recover for the death of Lewis Lermuseaux, opposed by the Albuquerque & Cerrillos Coal Company, employer, and the Interstate Casualty Company, insurer. Judgment for plaintiffs, and defendants bring error.

<p>Error to District Court. Otero County; Medler, Judge.</p> <p>Action by George Warnock against tbe Alvarado Mining & Milling Company. Judgment for plaintiff, and defendant brings error.</p>