Volume 26 — New Mexico Reports

Alvin Alford was convicted of unlawfully selling intoxicating liquors, and be appeals. Evidence of other illegal sales by appellant was inadmissible. State v. Star, 173 Pac. 676; State v. Graves 21-556; State v. Pino 21-660. Evidence of other illegal sales was admissible. 2 Woolen & Thornton on Int. Liq. Sec. 931.

R. Ryan, Judge. Action by B. S. Jackson, administrator of Harry H. Archuleta, deceased, against the Deming Ice & Electric Company. Verdict and judgment for plaintiff, and defendant appeals. An instruction which assumes the existence of certain facts or of evidence tending to prove them, when, in fact, there is no such evidence, is erroneous, and should not be given. 38 Cyc. 1671; 11 Enc.

Park Edmondson and Albert Daniels were convicted of larceny of neat cattle, and they appeal. Affirmed. It is proper that object to which testimony relates should be brought into the court room and exhibited when this can be done. 10 R. C. L. p. 991. The appellants were prejudiced by the displayed impatience of the court. State v. Clements, 15 Ore. 237.

<p>Appeal from District Court, Bernalillo County; H. F. Raynolds, Judge.</p> <p>Action by State of. New Mexico against W. L. Johnson. Judgment for defendant on demurrer to complaint, and the State appeals.</p>

Action by Owen R. Walters and others against Robert 0. Walters, a minor. Judgment for plaintiffs, and defendant appeals. Plaintiff pleads that certain real property described in the complaint was conveyed to Ray Walters by Robert 0.

<p>Appeal from District Court, Grant County; M. C. Mechem, Judge.</p> <p>Action by Charles N. Morrill, Receiver of the People’s Savings Bank & Trust Company, a corporation, against Clyde B. Jones. Judgment for defendant, and plaintiff appeals.</p>

L. Medler, Judge. Action by E. S. Corn against C. Walker Hyde, sheriff, etc., and C. M. Farnsworth. Judgment for plaintiff, and defendants appeal. When the transcript was filed in the office of the County Clerk of Lincoln County it became a lien upon all the real estate of the judgment debtor in that county. § 3079, Code 1915; 23 Cyc. 1391; R. C. L. Art. 65, p. 634.

Action by Joseph Ravany, Adm’r, and Elvina Ravany, by her guardian ad litem, H. B. Jamison, against the Equitable Life Assurance Society of the United States. Judgment for defendant, and plaintiffs appeal. On motion to strike bill of exceptions.

Suit by the First National Bank of Elida, N. M., against Cleve George and B. F. Bennett, with attachment. Judgment against defendants by default, motion to vacate the judgment denied, motion to amend the attachment bond granted, and from the final judgment and the orders defendants appeal.

Suit to quiet title by the Mabie-Lowrey Hardware Company against Tom Boss and others. Judgment'for defendant Boss, and plaintiff appeals. Purcell v. Victor Power and Mining Co., (Cal.) 156 Pae. 1009, Key No. Vendor and Purchaser, 233; McBee v. O’Connell, 145 Pac. 123. A grantee in a quitclaim deed cannot be an innocent purchaser. Little Rock and Ft. Smith R. R. Co. v. Rankin, (Ark.) 156 S. W. 431. A quitclaim deed gives no better title than the grantor had.

<p>SYLLABUS BY THE COURT.</p> <p>Where there is no substantial evidence of the corpus delicti in a homicide case, the verdict finding defendant guilty of second degree murder will be set aside on appeal.</p>

L. Medler, Judge. Suit by Eugene A. Beecher against W. E. Tinnin to foreclose a real estate mortgage, with counterclaim by defendant. Demurrer to reply overruled and judgment entered for plaintiff, and defendant appeals.

Action by Maria C. Sais by Victor Sais, her next friend, against the City Electric Company. Motion by plaintiff to set aside a certificate by default filed by defendant denied, and defendant’s motion for judgment on the pleadings granted and the cause dismissed, and plaintiff appeals.

<p>Appeal from District Court, San Miguel County; D. J. Leahy, Judge.</p> <p>Max Garcia was convicted of forgery, and he appeals.</p>

Judge. Action between William D. Kershner and the Trinidad Milling & Mining Company and others. Judgment for the latter, and the former -appeals. On motion to strike from the Kies all the appellant’s assignments of error.

Original proceeding on an accusation against Isaac Bartli for disbarment, filed by the Attorney General on recommendation of the State Board of Bar Examiners. The fact that the larger part of the personal property contained in the house was community property was certainly well known to respondent as appears from certain letters from him to Mrs. Andros and Mr. McMillen, all of which are in evidence.

Mechera, Judge. Suit by Henry Dreyfus, a resident taxpayer, against the City of Socorro for appointment of a receiver to operate the city’s waterworks. Demurrer to complaint overruled, and receiver appointed, and from the overruling of the demurrer, defendant appeals.

D. Leib, Judge. Suit for redemption from. mortgage foreclosure, by Paul H. Nutter against the Occidental Life Insurance Company. Judgment for plaintiff, and defendant ap- . peals. STATEMENT OP PACTS. This is a suit by appellee, as grantee of an original mortgagor subsequent to foreclosure sale, to redeem real estate sold under foreclosure decree from the purchaser at such foreclosure sale.

Suit by Eleonora Warning Crowell against Augusta Kopp on a note and to foreclose a mortgage. Decree for plaintiff, and, from an order vacating an order appointing a second special master to make sale, plaintiff appeals.

<p>SYLLABUS BY THE COURT.</p> <p>1. The pledgee of negotiable promissory notes of the as-signee and chattel mortgage semiring the same is entitled to recover of the parties to such collateral notes the whole amount of their face, holding any surplus for the benefit of the persons who are entitled to it; there being no equities existing between the maker of the notes and the original payee. P. 156</p> <p>2.' The pledgee of property has the control of it for the time being, and he represents not only his own interests, but that of the pledgor, in taking any proper action for the preservation of it and the collection and care of its proceeds. P. 156</p> <p>3. Where proceedings are taken by the pledgee of promissory notes and a chattel mortgage regularly assigned securing said notes held by the pledgee as collateral security to foreclose the mortgage, the maker of the notes and the mortgagor attempting to redeem, in order to exrcise the right, were required to pay or tender all that was justly or equitably due under the mortgage, together with interest, if any due, and the expenses and costs directly and reasonably incurred by the pledgee in attempting to foreclose the s^une; the mortgage providing that the mortgagor upon default should pay such costs, expenses, and attorney’s fee, and a tender of the amount due in order to effect redemption should have included such costs, expenses, and attorney’s fee. u P. 157</p> <p>4. Whoever has the affirmative of the issue, as determined by the pleadings, or, where there are no pleadings, by the nature of the investigation, has the burden of proof. It never shifts from that party either in civil or criminal cases. P. 159</p>

<p>Appeal from District Court, Grant County; R. R. Ryan, Judge.</p> <p>Samuel L. Hunt and Joseph S. Hunt were convicted of murder in the second degree, and they appeal.</p>

Proceeding between State of New Mexico, on the relation of Benito D. Sandoval for himself and others similarly situated, and tbe Board of County Commissioners of the County of Guadalupe, State of New Mexico, sitting as a canvassing board. Judgment for the former, and the latter appeals.

<p>Appeal from District Court, Guadalupe County; Edwin Mechem, Judge.</p> <p>Suit by Harry R. Roberson, Treasurer of the Village of Santa Rosa, N. M., against the Citizens’ Lumber Company. Judgment for defendant, and plaintiff appeals.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Where parties to a cause in the district court stipulated that the findings and conclusions in another case shall be accepted as the findings and conclusions of law in the case covered by the stipulation, there is no question for consideration on appeal from a judgment in the latter case, in the absence of the findings and conclusions of law in the cause which the stipulation provided should control.</p>

<p>Appeal from District Court, De Baca County; Bich-ardson, Judge.</p> <p>Action by J. H. Cornett against J. P. Fulfer. Judgment for plaintiff, and defendant appeals.</p>

■ Suit in attachment by the First National Bank of Elida against Cleve George and another with attachment. From a judgment dismissing the attachment, plaintiff - appeals.

• Habeas corpus by James Day 'Wallace, on behalf of Hazel May Wallace and Pauline Minta Wallace, minors, and James Day Wallace, against W. E. and Francis L. Blanchard, to obtain the custody of the two minors. Custody awarded to petitioner, and respondents appeal. Consent by putative father is unnecessary to adoption. 1 Jones Blue Book Evid. Sec. 93; Grates v. Garcia, 20-N. M. 162'.

Action of replevin by Jennie P. Page against PI. B. Jones and another, in which defendants gave a forthcoming bond and retained possession. Judgment for plaintiff for the property or for an alternative money judgment, and defendants appeal.

Suit by the Citizens ’ National Bank of Roswell, N. M., against R. P’. Bean, Jr., administrator of R. P. Bean, Sr., and others, with cross-complaint against. plaintiff and Gujr Ii. Herbert. Demurrer to counterclaim overruled, and judgment for defendant .administrator on a directed verdict, and plaintiff appeals. Reversed and remanded, with directions to grant plaintiff a new trial.

Action between John Alexander Simmers and another and Nathan E. Boyd and another. Judgment for the latter, and the former appeal.

Suits by C. G. Mardorf and another against James W. Norment and wife, wherein F. G. Hawkins intervened in one action, and the Security Investment & Development Company in the other. From a ruling in each case refusing leave to intervene, interveners appeal.

<p>SYLLABUS BY THE COURT.</p> <p>1. Section 15, chapter 22, Laws 1899, which requires the notice of tax sale to be published once each week for four consecutive weeks, the last publication to be not less than 30 days prior to the date of sale, is complied with by publication oí the notice of sale on the sam4 day of the week for 4 consecutive weeks, although the full period of 28 days has not elapsed between the first and last publication, where the fourth publication is more than 30 days prior to the date of sale, following the case of Dewitz v. Joyce-Pruitt Co., 20 N. M. 572, 151 Pac. 237. P. 218</p> <p>2. Section 36, chapter 84, Laws 1913, authorizes the sale of delinquent tax sale certificates acquired by the various counties under former laws, as well as under said chapter 84. P. 220</p>

Action by C. G. .Mardorf, trustee, for the Capital City Bank and the Capital City Bank, against James W. Norment and wife. Judgment for plaintiffs, and defendants appeal.

C. Mechem, Judge. Action by Elfego Baca against Zacarias Padilla. Judgment for plaintiff, and defendant appeals. ' Contract is contra bona mores and violates established policy of the State. Art. 4, Sec. 24, State Const.; Sec. 1 Art. 5 State Const.; Secs. 1860, 1870, 5321, Code 1915. Plaintiff was interested in the matter in controversy and therefore he was disqualified to represent the State in the trial of the indictment.

C. Meehem, Judge. ' Action by H. B. Jamison, receiver for the Albuquerque Wool Scouring Mills, against A. B. McMillen, trustee for the First National Bank of Albuquerque, and others. Judgment for defendants, and plaintiff appeals.

Action by Fred L. Maxwell against William Holland, before a justice of the peace. From a judgment of the district court affirming a judgment of a justice of the peace in favor of plaintiff, defendant appeals.

Suit by Gregory Page against the Town of Gallup and otheis. Judgment for complainant, and defendants appeal. Where issue of fact is raised by the pleadings, judgment on pleadings is improper. 31 Cyc. 608; 1 Suther. Code PI. Sec. 1447; Reed v. Rogers, 19 N. M. 177.

<p>SYLLABUS BY THE COURT.</p> <p>1. Under the law, as it exisited in this state prior to the adoption of- the constitutional prohibition amendment, the amount fixed by municipalities as a liquor license fee was not a tax, but was a burden imposed as the price of a privilege, and was exacted under the police power of the state. P. 255</p> <p>2. Fees or charges for liquor licenses are not debts in the ordinary acceptation of the term. The only methods for the collection of such fees are those provided by statute; and, if the statute does not provide for their collection by civil action, no such action can be maintained, and a liquor license issued without payment of the fee by the officer authorized to issue the same, upon payment of the prescribed fee, is null and void. P. 256</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Where a trustee in bankruptcy elects not to take and charge the estate with incumbered property of the bankrupt, or where he abandons it, the property or right, whatever it is, remains in or revert to the bankrupt. P. 260</p> <p>• 2. Where a trustee in bankruptcy abandons the right to redeem property from an execution sale, such right passes or reverts to the bankrupt, and he may exercise it. P. 261</p>

Action by Henry Dreyfus against the New Mexican Printing Company and Ralph M. Henderson. Directed verdict for Cutting and verdict for plaintiff for $35,000 against the New Mexican Printing Company, its motion for new trial granted unless plaintiff remitted the verdict in excess of $10,000, which remittitur was filed, and judgment against the New Mexican Printing Company in that sum, and Ralph M. Henderson its receiver brings error.

<p>SYLLABUS BY THE COURT.</p> <p>1. When findings of fact are not requested in a case tried by the court and no findings are made by the court, except a general finding for the plaintiff, and counsel for the defendant in no way or manner calls attention of the trial court to any claimed .error in the findings, and makes no objection to the same, or to the failure of the court to make specific findings of fact, such party so failing to object cannot raise the question that the evidence fails to warrant an assumed finding for the first time in the appellate court. P. 272</p> <p>2. Where the findings made by a trial court are erroneous because not in accordance with the evidence, it is the duty of the party aggrieved thereby to call the court’s attention to the error and seek its correction there. P. 272</p>

Suit by Jose Angel Jaramillo, administrator of the Estate of Narcisco Pino, deceased, and others, against Julian Jaramillo and others. Judgment for defendants, and plaintiffs appeal.

Action by tbe Bond-Connell Sheep Company against V. S. Miera and others, as administrators with will annexed of the estate of E. A. Miera, deceased. Judgment for plaintiff, and defendants appeal.

Appéal from District Court, Sandoval County; Ray-nolds, Judge. Action by Jesus M. Sandoval against Maximum Perez and another. Judgment for plaintiff, and defendants appeal.

C. Mechem, Judge. Mandamus by the State, on the relation of Lorenzo B. Rivera, against Sylvestre Esquibel and others, Board of Trustees of tbe Cevilleta de la Joya Grant, to compel an election to be conducted according to statute. Judgment for defendants, and both parties appeal.

<p>Appeal from District Court, Chaves County; McClure, Judge.</p> <p>Action by W. E. Rogers against James B. Herbst. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Eddy County; Richardson, Judge.</p> <p>Action to quiet title by Mrs. W. K. Dillard against A. J. Crawford and another. Judgment for plaintiff and-defendants appeal.</p>

Separate actions by the City of Ra-ton against the Raton Ice Company, the Yankee Fuel Company, and others. Judgment for plaintiff in each case, and defendants appeal.

Suit by Clark M. Carr and T. F. Godding, doing business under the firm name of the Carr Godding Sheep Company, against the Mazon Estate, Incorporated. Motion to strike parts of complaint sustained in part and overruled in part, and a demurrer sustained in part and overruled in part, and plaintiffs appeal.

Stephen Crosby was convicted of manslaughter, and he appeals. There was no evidence justifying- submission of instruction on manslaughter and giving same was prejudicial error.

Action by the Texas Bank & Trust Company of El Paso, Tex., against G-. E. Cavin and another. Judgment for plaintiff, and defendants appeal. Court should have rendered judgment in account, case being tried on theory of account. Judgment could, be rendered against Amis only for amount remaining due on note. 8 C. J. 265.

Action by F. L. Melhop against N. Costa and others.Demurrer to part of complaint sustained, verdict and judgment for plaintiff for part of the amount of note and interest and attorney’s fees, and he appeals.

E. Hickey, Judge. Application by W. H. Winters and another, as the executors named in the will of W. H. Byerts, deceased, for ancillary probate of the will and for the removal of Elfego Baca, as administrator, with opposition by the administrator to his removal. Ancillary probate denied in the probate court, and from a judgment of the district court on the applicants’ appeal, allowing ancillary probate and removing Baca as administrator, he appeals.

Action on an injunction bond by the Mazon Estate, Incorporated, against Clark M. Carr and T. A. Godding, partners doing business under the firm name of Carr-Godding Sheep Company, and others. Judgment for defendants on a directed verdict, and plaintiff appeals. Evidence shows attorney’s fees were incurred in ancillary injunction proceeding.

Action by Agapito Abeyta, Jr., and another against Damacio Tafoya, etc., and others. Judgment for defendants, dismissing the complaint, and plaintiffs appeal. Under the circumstances the law easts the possession of the whole tract upon the person halving the older and better title, except as to such portion only as may have been in the adverse possession of his adversary.

Action by the First State Bank & Trust Company of Roswell, N. M., against A. Long, in which the Roswell Trading Company intervened. From a judgment dismissing the intervention petition on demurrer, inter-vener appeals. Appellant, as dealer in grain, feed, etc., had lien on animals fed with grain sold by appellant. Sec. 20, Art. 2, Chap. 65, Laws 1917; See. 3339, Code 1915. Possession is necessary to' establish the lien.

<p>Appeal from District Court, Guadalupe County, Leahy, Judge.</p> <p>John B. Middleton was convicted of murder in the first degree, and he appeals.</p>

Action by F. E. Hubert, receiver of the National Plaster Company, against the American Surety Company of New York and L. C. Denning. Verdict and judgment for defendants, and plaintiff brings error.

<p>Appeal from’ District Court, De Baca County; Richardson, Judge.</p> <p>Action by J. H. Cornett against J. P. Fulfer. Judgment for plaintiff and defendant .appeals.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Sections 939 and 940, Code 1915, interpreted, and held not to prohibit a corporation from taking a promissory note upon a subscription contract for its capital stock, and that such note is valid and binding- upon the maker.</p>

Action by B. G. Glaser against W. U. Dannelley. Judgment for plaintiff, and defendant appeals. In many cases it is held that the trial court, after an appeal and remand, has no power to modify or amend the judgment whatever. Tuttle v. Gilmore, 7 Atl. 859; Pacific Drug Co. v. Hamilton, 76 Wash. 524, 136 Pac. 1144.; German American State Bank v. Sullivan, 50 Wash. 42, 96 Pac. 522; State ex rel. Jefferson County v. Hatch, 36 Wash. 164, 78 Pac. 796; State ex rel.

Action by tbe First National Bank of Baton, against Edward M. Traylor. Judgment for plaintiff, and defendant brings error. Was defendant entitled to separate trials? Western H. & I. Co. v. First Nat. Bank, 9 N. M. 1. Was defendant entitled to have the issue in garnishment heard before that in main case? 2 Wade, Att. & Gar. 1; Longley Bros. v. McVann, 119 S. W. 268; Aetna Ins.

Action by J. M. Caddy and others against W. W. Wagner. Judgment for the plaintiffs, and defendant appeals. Curing defect. Held: that the certificate of authentication may be amended in furtherance of justice to supply defects or omissions, if applied for in time, unless the defects are such as affect the jurisdiction of the appellate court. 4 C. J. 456-7.

<p>SYLLABUS BY THE COURT.</p> <p>1. The error of the district court in sustaining an objection to a question asked for the purpose of laying the foundation for impeachment is not available to the appellant, when as a matter of fact he is permitted to prove that the witness did make the contradictory statement called for in the question. P. 386</p> <p>2. The statement by the district court that he fails to see the materiality of a question • asked by the witness is not a comment upon the weight of the evidence, but is a mere statement of a legal objection to the testimony, and is unobjectionable. P. 388</p> <p>3. The trial judge has the power in his sound judicial discretion to vary the order of proof, and his action is not reviewable, except for gross abuse of discretion. P. 388</p> <p>4. Where the appellant was convicted of involuntary manslaughter, he cannot make complaint of error in the instructions of the court in regard to murder. P. 392</p> <p>5. An exception to an instruction, to the effect that the same is not a full and complete statement of„the law, is indefinite, and presents no question for review in this court. P. 392</p> <p>6. An instruction upon manslaughter which omits to express to the jury that the killing must be without malice is not harmful, but, on the other hand, beneficial to the defendant, and he has no complaint thereon in this court. P. 394</p> <p>7. Instructions Nos. 10 and 14 examined, and held not to be in conflict with or repugnant to each other. P. 394</p> <p>8-11. The district court is 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. 395, 396</p> <p>12. An instruction which merely lacks scientific form, while in substance it covers the matter fully, is not objectionable; and, even if the same is not directly applicable to the facts in the case, where by no possibility it could mislead the jury, the giving of the same is harmless and not available as error. p. 397</p> <p>13. The jury returned a verdict of involuntary manslaughter, and voluntary and without any instruction from the court upon the subject appended thereto the following: “We respectfully beg the mercy of the court.” It is held that section 4447, Code 1915, which authorizes such a recommendation, has the effect merely of allowing the jury to give the trial judge the benefit of their opinion as to whether clemency should be extended, and is not intended to in any manner control the .ultimate discretion of the trial judge in fixing' the sentence. p. 398</p>

Proceeding by the First State Bank of Bernalillo against the State of New Mexico, to reduce the assessment of property for taxation, with service of notice on the State Tax Commission, which appeared by its special attorney. Assessment of plaintiff bank reduced, and the commission’s special attorney filed an application for appeal, which was allowed.

<p>SYLLABUS BY THE COURT.</p> <p>A judgment or decree of the district court, which adjudicates the rights of the parties, passes from the control of the court, if no motion directed to it is filed within 30 days, and it cannot be amended or corrected by a motion directed to it, filed more than 30 days after the entry of such decree, and which motion seeks other and different relief than that given by the decree.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. The principal is responsible for the unauthorized acts of the agent, where the conduct of the principal justifies 'the party dealing with the agent in believing that such agent was acting within, and not. in excess of, the authority conferred up'on him. P. 411</p> <p>2. Where the soliciting agent of a life insurance company had, at the request of the insured, written to the general office of the company upon three pr four occasions, asking as to the amount owing by the insured, and upon receiving a reply had accepted the money from the insured in payment of such indebtedness and premiums, and forwarded the same to the company, which was accepted and the premium receipt sent by the general office direct to the insured, but such agent had never undertaken to extend the time for paying a premium or any indebtedness due the company, these facts did not authorize the insured to believe that the agent had authority to waive prompt payment of premiums and to extend the time for paying the same. ' P- 411</p> <p>3. A “waiver" is the intentional abandonment or relinquishment of a known right. ' P. 418</p>

Suit by Rafael Garcia, etc., and others against Secun- • dina Silva, to foreclose a deed of trust securing a note. Judgment for plaintiffs, and defendant appeals.

Suit by Kate E. Fling against George R. Fling. From an order refusing to set aside an execution sale and to set as'ide the sheriff’s deed, defendant appeals.

Action by J. C. Mings against Andrew M. Hall to foreclose a mortgage, etc., with intervention by Sudie Hall Hering and others. Judgment for plaintiff, foreclosing the mortgage on only certain interests in the realty, and he appeals. Hall was authorized to encumber the real estate to pay community debts.

<p>SYULABUS BY THE COURT.</p> <p>1. The admission of evidence, technically erroneous, entirely disconnected with either the prosecution or defense, and in no way reflecting' on the guilt or innocence of the defendant, is not reversible error. P. 431</p> <p>2. Where there is any evidence to support or reasonably tending to support the charge, it is not error to deny a motion for a verdict of acquittal. P. 432</p> <p>3. The verdict of a jury cannot be impeached by the affidavit of jurors. ' P. 432</p> <p>4. An assignment of error not borne out by the record will not be considered. P. 432</p> <p>5. Where it appears by direct and redirect examination that the witness was present when the homicide was committed, it is reversible" error on cross-or recross-examination to confine Such examination to facts and events subsequent to the homicide and exclude from the consideration of the jury evidence sought to be elicited in regard to the manner or way in which the homicide occurred. . P. 433</p>

Proceedings by tbe City of Albuquerque against tbe Ranger-Desdemona Oil Company for failure to procure a license under a city ordinance. A judgment and fine imposed by tbe police court was affirmed by the district court on appeal, and defendant appeals.

Action by the Bank of Commerce of Taiban, against W. A. Duckworth and another. Judgment for plaintiff, and defendants appeal. On motion to dismiss appeal.

Proceedings by tbe Gallup State Bank and others against the Direct Line Coal Company, Arthur A. Jones, and others for the appointment o£ a receiver and for an injunction. Arthur A. Jones and others objected to the confirmation of a sale made by Gregory Page as. receive. The sale was confirmed, and objectors bring enría

Application by Ramon Bustillos and others for a writ of habeas corpus. The restraining order of the district court is ineffective insofar as it attempts to affect petitions. A. Because Edward Safford was not a proper party plaintiff. Peeples v. Byrd, 98 Ga. 693; Birmingham v. Cheetham, 19 Wash. 659; Givens v. McElroy, 79 Mo. App. 671; School District v. Shaddock, 25 Kans. 467; Mechem, Public Officers, Secs. 954-987-988. B. Because the petitioners were not parties to the suit.

<p>Appeal from District Court, Luna County; Ryan, Judge.</p> <p>Emil Parry was convicted of unlawfully billing neat-cattle belonging to another, arid he appeals.</p>

William G. Bassett was convicted of murder in the second degree, and he appeals. Evidence of other abortion was inadmissible. State v. De Masters, 90 N. W. 852; 1 Enc. Law 753; 16 Enc. Law 139; 12 Cyc. 409'; People v. Willard, 28 Pac. 585; State v. Jefferies, 23 S. E. 163; People v. Brown, 106 N. W. 149; State v. Hilberg, 61 Pac. 215; State v. Neel, 65 Pac. 494; People v. Fowler, 62 N. W. 572; Wigmore, Vol. 2, Sec. 910-911; 30 Am. and Eng.

C. Mechem, Judge. 0. W. Smith was convicted of murder in the second degree, and he appeals. Evidence showed appellant g-uilty of first degree murder or not guilty. As to what constitutes murder of first and second degree, see “Lying in wait,” 2 Bouv. L. Diet.; 2 Bish Cr. L., Sec. 727; Riley v. State, 9 Hump. (Tenn.) 647, 660, 661; State v. Tyler, 122 Iowa 125, 97 N. W: 983; People v. Sanchez, 24 Cal. 17, 28, 29; Sec. 1, C. 36, L. 1907; State v. Granado, 17 N. M. 542, 44, 45.

Suit by tbe Citizens’ Light, Power & Telephone Company against Anton Usnik. From denial.of a motion to set aside a default judgment for plaintiff, defendant appeals.

<p>Appeal from District Court, Bernalillo County; Ray-nolds, Judge.</p> <p>Action by the Stockmen’s Guaranty Loan Company against Severo Sanchez. Judgment for plaintiff on- a directed verdict, and defendant appeals.</p>

Baylor Leatherwood was convicted of murder in the second degree, and he appeals. Court erred with respect to selection of jurors. Chapter 93, Laws 1917; State v. Bailes, 24 N. M. 16; Clinton v. Engelbrecht, 17 Wall. 434; Terr. v. Prather, 18 N. M. 195; Hildreth v. Troy, 101 N. Y. 234; Teat v. Land, 135 La. 782, 66 So. 199; People v. Murray, 85 Cal. 350, 24 Pae. 666. After acceptance of a juror a peremptory challenge cannot be interposed. Com. v. Rogers, 7-Mete.

Suit by Josepb Ravany, administrator of tbe- estate of Joseph M. Ravany, deceased, and another, against the Equitable Life Assurance Society of the United States, to cancel an annuity contract! Decree for defendant and plaintiffs appeal.

R. Brice, Judge. Levis S-. Davis' was charged with illegally drawing and uttering a check, and bound over to the grand jury, and he applies for a writ of habeas corpus. Petition discharged, and the State appeals.

Jacob A. Lindsey was convicted of bigamy, and he appeals, The indictment fails to state an offense, in that bigamy was not a crime at common law and the indictment fails to allege intent to commit the crime. 7 C. J. 1158; 5 Cye. 628; Black’s L. Diet. 131. For definitions of bigamy see, Whart. Cr. L. Under the definition bigamy was offense at common law and section .1775, Code 1915, recognizes the common law offense. Ex parte DeVore, 18 N. M. 246,- 136 Pac. 47.

’ Elgin Douthitt and Yelpo Douthitt were convicted of unlawfully firing a deadly weapon at another, and they appeal.

C. Mechem, Judge. Action by Henry Dreyfus against the New Mexican Printing Company and Bronson M. Cutting. Directed verdict for defendant Cutting, and verdict for plaintiff for $35,000 against the New Mexican Printing Company, its motion for new trial granted unless plaintiff remitted the verdict in excess of $10,000,- which re-mittitur was filed, and judgment against the New Mexican Printing Company in that sum, and Ralph M. Henderson, its receiver, brings. error.

Suit by Benjamin F. Pankey against Antonio Ortiz and others. Decree for plaintiff, and defendants appeal. Held: while announcing the general rule against repeated litigation between the same parties in regard to the same subject of controversy, that there is an admitted exception in cases where, by reason of something done by the sucessful party to á suit, there was in fact no adversary trial or decision of the 'case, as where the unsucessful…

<p>SYLLABUS BY THE COURT.</p> <p>1. A complaint in specific performance, based upon a contract of A. to convey property to B. when he acquired the legal title, and the ratification thereof by C., is insufficient, where it does! not allege the relation of principal and agent, express or implied, between B. and C., and the vesting of the legal title in B. P. 609</p> <p>2. “Ratification” means giving validity to the act of another, and in legal phraseology usually means to approve or affirm by a principal what has been done by an agent or one assuming to act for another. P. 610</p> <p>3.“Specific performance” is the actual accomplishment of a contract by a party bound to fulfill it, and is a means of compelling- a party to do precisely what he ought to have done without being coerced by a court. P. 610</p>

<p>Dugan v. Montoya, 24 N. M. 102, 173 Pac. 118, followed.</p> <p>Appeal from District Court, McKinley County; Reynolds, Judge.</p> <p>Action by the Atchison, Topeka & Santa Fe Railway Company against Sarah Dugan and others. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Guadalupe County; Lea-hy, Judge.</p> <p>Action by John Michael against Fred J. Bush, administrator, and another. Judgment for plaintiff, and defendants appeal.</p>

<p>SYLLABUS BY THE COURT.</p> <p>A tax levied and assessed on personal property of the owner of both real and personal property is not a lien on the real property of such owner.</p>

<p>SYLLABUS BY THE COURT.</p> <p>The finding's of a trial court, based on confiiction evidence, will not be disturbed on appeal, where the same are supported by substantial evidence. Kelly v. La Cueva Ranch Co., 25 N. M. 674, 187 Pac. 547, followed.</p>

<p>Appeal from District Court, Socorro County; Merritt C. Mechem, Judge.</p> <p>Action by Manuel D. Abeytia against the Gibbons Garage of Magdalena. Judgment for defendant, and plaintiff appeals-.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Tke payee in a promissory note who has possession therefore is presumed to be its owner, even though his in-dorsement appears thereon; it being presumed that the note was never transferred, or that it has been retransferred to him.</p> <p>2. Where the judgment is supported by substantial evidence, it will not be disturbed on appeal.</p>

<p>Appeal from District Court, San Miguel County; Leahy, Judge.</p> <p>Action by the State Department of Health against the County of San Miguel. Judgment of dismissable, and plaintiff appeals.</p>

<p>SYLLABUS BY THE COURT.</p> <p>A money judgment does not carry with it a lien against the real estate of a judgment debtor, and operates as a lien only after a transcript of the judgment docket provided for by section 3079, Code 1915, is filed for record with the county clerk.</p>

Proceedings by Morgan J. O’Brien against Joseph R. Wilson, executor of the estate of Mathilde Julia Bonvard Cardonar, deceased. Judgment for defendant, and plaintiff appeals. The concrete question in this case is: if claimant files his claim on the last day of the year, and on that day gives written notice that he will five days later call his claim up in court for action is he barred?

<p>Appeal from District Court, Bernalillo County; Hickey, Judge.</p> <p>Action by the First National Bank of Albuquerque against William L. Staley and another. Judgment for plaintiff in each case, and defendants appeal.</p>