Volume 27 — New Mexico Reports

<p>Appeal from District Court, Colfax County; Lieb, Judge.</p> <p>Dominic Martino was convicted of murder in the second degree, and he appeals.</p>

<p>SYLLABUS BY THE COURT</p> <p>1. Ordinarily the findings of fact of the trial court will not be disturbed when they are supported by any substantial evidence. P. 11</p> <p>2. The evidence of a witness to an admission of notice of a fact which, if received prior to a purchase of land would prevent the party from rescinding the transaction on the .ground of fraudulent representations, and which, if received after the purchase and payment of the purchase price, would not affect his right, was properly disregarded by the court as immaterial, where the witness failed to be able to show that the notice was received prior to the purchase. P. 12</p> <p>3. A question not raised in the court below will ordinarily not be considered here. P. 13</p> <p>4. Where a vendor takes a vendee to a spring and falsely' and fraudulently represents to the vendee that the spring is upon the land to be conveyed, and the vendee is ignorant of the facts, and could ascertain them only by survey of the land, and where there are no circumstances present calculated to arouse the suspicions of the vendee, he is entitled to rely upon the representations, and may rescind the contract and recover the purchase price paid upon discovery of the fraud. , • P. 13</p>

<p>Appealed from District Court, Roosevelt County; McClure, Judge. Proceeding between the Joyce-Pruit Company and Cleve George. Judgment for the latter, and the former appeals.</p>

Application by the Valencia Water Company for an extension of time for the appropriation of waters of a creek, opposed by F. G. Neilson and others, who also sought the granting of their permits to appropriate.

Action by William Ashley against Tom Jones, brought before a justice of the peace and taken to the district court on certiorari. Judgment for defendant, and plaintiff appeals.

<p>Appeal from District Court, Bernalillo County; Raynolds, Judge.</p> <p>Action by A. B. Stroup and another against the Frank A. Hubbell Company. Judgment for plaintiffs, and defendant appeals.</p>

Suit by Sarah C. Gray, against George A. Tits-worth and others. Judgment for plaintiff in justice court, and in the district court on an appeal and a trial de novo, and defendants appeal.

Suit by Annie A. Jones against the Rocky Cliff' Coal Mining Company and others. Judgment for' plaintiff, and defendant named appeals. STATEMENT OF THE CASE. This is a suit to quiet title in statutory form, brought by Annie A. Jones, appellee, against the appellant, Rocky Cliff Coal Mining Company, and others. The defendants with the exception of appellant made default.

Suit by Annie A. Jones against the Rocky Cliff Coal Mining Company and others. Judgment for plaintiff, and defendant named appeals. STATEMENT OF THE. CASE, This is a suit to quiet title in statutory form brought by Annie A. Jones, appellee, against the appellant, Rocky Cliff Coal Mining Company, and others. The defendants with the exception of appellant made default.

A. Dunn, Judge pro tern. Suit by D. W..Dunn and another against N. W. Hite and another to foreclose a mortgage. From a judgment of foreclosure, defendant named appeals.

<p>SYLLABUS BY THE COURT</p> <p>1. Severance of trial of two or more defendants jointly indicted for the same offense is discretionary with the trial court, and its action will not be reviewed by this court unless .such discretion is abused. P. 60</p> <p>2. Where the court expressly limits testimony as to admissions or confessions made by one defendant to such defendant alone, it is not error to deny a separate trial to each defendant. P. 60</p> <p>3. The admission or rejection of a confession in a criminal case in the first instance is for the court to determine. If, after it is admitted by the court as voluntary, a conflict of evidence arises as to its voluntary character, the question of whether voluntary or not is for the jury under proper instructions. . P. 61</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Murder in the second degree is murder with malice, but without deliberation, and it is error to instruct that murder in the second degree is murder with malice and without deliberation and premeditation. P. 63</p> <p>2. The words “premeditation” and “aforethought” are synonymous, and mean thought of beforehand. State v. ' Smith, 26 N. M. 482, 194 Pac. 869, followed. P. 64</p>

<p>SYLLABUS BY THE COURT.</p> <p>The verdict of a jury or the findings of^a trial court, when supported by substantial evidence, will not be disturbed upon appeal.</p>

<p>Appeal from District’ Court, Bernalillo County; Hickey, Judge.</p> <p>Suit by Virgil P. Harrington against Gabriel Chavez. From a judgment for plaintiff, defendant appeals. '</p>

<p>SYLLABUS BY THE COURT.</p> <p>In a suit for an injunction to restrain trespass upon real estate and to recover damages for prior trespass, the action was predicated upon alleged compliance with the provisions of section 39, Code 1915, relative to marking the boundary of unfenced land and giving notice. The trial court found that the boundaries of the land of plaintiff had not been carefully and conspicuously marked, and that a willful trespass had not been proven. Held, that the findings were supported by substantial evidence.</p>

<p>Appeal from District Court, Chaves County; Brice, Judge.</p> <p>Action by the Brenon Manufacturing Company, a copartnership consisting of Theodore 0. Loveland and James S. Records, against Martin & Sweeny. Judgment for defendants, and plaintiffs appeal.</p>

<p>Appeal from District Court, Sandoval County; Hickey, Judge.</p> <p>Proceedings by the First State Bank of Bernalillo for abatement of taxes. Judgment for plaintiff, and the State appeals.</p>

Appear from District Court, Bernalillo County; Hickey, Judge. Suit by the Bond-Dillon Company against O. A. Matson, treasurer, and another. Judgment for plaintiff on demurrer, and defendants appeal. The general rule is that if one fails to follow the remedies provided by statute for review for an erroneous assessment of taxes, he can have no remedy in the courts unless the defect is jurisdictional. Cooley, vol. 2, page 1387, 3rd Edition. Altschul v. Gittings, 80 Fed.

<p>SYLLABUS BY THE COURT.</p> <p>1. Where, in a contract for the sale of real estate, the deed is to be delivered on payment of the price in full, and there is no provision or agreement in regard to possession of the property during the performance of the contract the vendee has gone into possession with the consent or acquiescence of the vendor, a tender of a deed to the property and a demand for performance by the vendor, in the absence of special circumstances, are prerequisites in order to successfully maintain ejectment against the vendee. P. 100</p> <p>2. Questions, points, issues, and matters not raised, presented, .or passed on in the, court below are not reviewable on appeal. P. 98</p>

<p>Appeal from District Court, Santa Fe County;. Holloman, Judge.</p> <p>Suit by the New Mexico Realty Company against J. W. Norment and others to quiet title. Decree for defendants, and complainant appeals.</p>

<p>Appeál from District Court, De Baca County; Brice, Judge.</p> <p>Actions by H. F. Timm and another against John F. White and against A. J. Earickson and others. On motion to dismiss appeal.</p>

Proceeding by E. P. Bujac for the allowance of a claim against the estate of Aline Mathilde Julia Bouvard Cardoner, deceased, opposed by Joseph R. Wilson, as executor. Judgment for claimant, and the executor appeals.

Proceedings in the matter of the estate of Aline Mathilde Julia Bouvard Cardoner, deceased, between Etienne de P. Bujac against Joseph R. Wilson, executor. Judgment for the executor, and Etienne de P. Bujac brings error.

<p>SYLLABUS BY THE COURT.</p> <p>Findings of fact by a trial court will not be disturbed on appeal, where such findings are supported by substantial evidence, and where the trial court heard the testimony and saw the witnesses.</p>

Action by the Troy Laundry Machinery Company against the Carbon City Laundry Company and another. Judgment for defendants on demurrer, plaintiff appealed, and the judgment was reversed. On rehearing.

<p>SYLLABUS BY THE COURT.</p> <p>1. Expenditures made for work performed, labor done, and repairs made upon a stamp mill do not tend to develop the mineral claim, or facilitate the extraction of ore therefrom, and consequently do not constitute any part of the sum required to be expended for annual assessment or improvement work, under section 2324, U. S. Rev. St. (U. S. Comp. St. § 4620). P. 128</p> <p>2. Where one enters into possession of a mineral claim under a contract with a locator, by which the person entering undertakes to do the required assessment work, or do other work which would have been sufficient to constitute assessment work, he will not be heard to assert the forfeiture of the claim for nonperformance of the assessment work, where such nonperformance was the result of his own default, nor will he be permitted to take advantage, at any time, of the information obtained by him on account of such relation. P. 136</p> <p>3. The failure to do the annual assessment work upon a mining claim does not of itself forfeit the claim, a relocation by a third party being essential to work a forfeiture of the original locator’s rights. P. 143</p> <p>ON SECOND MOTION FOR REHEARING.</p> <p>4. Where the trial court determined an issue as to whether there existed a fiduciacy relation between appellant and ap-pellee, and' by agreement of appellee permitted^ appellant to file an amended reply raising such issue, the question having been presented to the Supreme Court in the briefs of both parties, the issue was properly before the Supreme Court. P. 144</p>

R. Ryan, Judge. Sylvester E. Bailey was convicted of murder in the first degree, and he appeals. “Threats, which are too general or too indefinite, not connecting the person slain or assaulted, therewith, are inad-missable. It seems that the threat must in some way designate or have reference to the person intended to be injured.” Michie on Homicide, vol. 1, p. 757, and the authorities cited thereunder.

<p>SYLLABUS BY THE COURT.</p> <p>■ 1. Where parties to a contract involving the sale of lands enter into a supplemental agreement whereby the seller obligates himself to obtain a release or satisfaction of a specified mortgage deed, he cannot, after failing to obtain such release, assert or plead in excuse or justification that such mortgage was void, and nence there existed no necessity for a release thereof. ' ’ P. 167</p> <p>2. Held, that this is a suit by which appellee seeks to recover damages resulting from appellant’s breach of contract, and that the rule that a party to a contract cannot rescind and cancel without placing or offering to place the opposite party in statu quo is not applicable. P. 167</p> <p>3. Assignments of error, not argued in the brief, will be regarded as abandoned or waived. P. 168</p>

Application by the State, on the relation of R. S. Walker and others, for a writ of mandamus against Silas Bridges, as Town Clerk. From an award of a peremptory writ, respondent appeals.

Action by the Rivers Bros. Company against R. E. Putney, trading under the name and style of L. B. Putney. From a judgment of dismissal, plaintiff appeals.

Petition by. the Lake Arthur Drainage District for a writ of mandamus against Nelson A. Field, Commissioner of Public Lands; to compel the issuance of vouchers for drainage assessments. Judgment for petitioner on demurrer, and defendant appeals.

<p>SYLLABUS BY THE COURT.</p> <p>1. A novation does not take place where the seller under a conditional sale contract consents .that the purchaser may transfer the goods covered by the- conditional sale contract to a third party, and that such seller will accept payments made on the contract from such transferee, where, under the terms of such subsequent agreement, the original purchaser is not released from liability, and ’the transferee does not become personally obligated for the payment of the balance of the purchase price. P. 196</p> <p>2. The statute (chapter 74, Laws 1917), which requires conditional sale contracts to be recorded, does not provide for the recordation of an assignment of such a contract. P. 197</p> <p>3. A conditional sale contract is not invalidated when not recorded as against a landlord’s lien under the statute referred to, which invalidates such a contract when not recorded as to subsequent mortgages in good faith, purchasers for value without notice, and subsequent judgment or attaching creditors without notice and as against subsequent “general creditors” without notice, as a landlord’s lien claimant is neither a mortgagee, judgment or attaching creditor, or “general creditor.” P. 198</p> <p>4. Under a conditional sale contract which gives the seller a right to enter upon the premises and retake possession of the property upon default, the statute of limitations does not begin to run against .the right to replevin such property upon default until the seller elects to exercise the right to retake such property. P. 199</p> <p>5. ■ Under section 4146, Code 1915, which ‘provides that when an instrument in writing is the' foundation of the action a copy must be attached to the complaint, no contract or other instrument need or should be filed or annexed which is not the foundation of the action or defense. P. 201</p>

Action by the Abo Land Company against James P. Dunlavy and others. Judgment for defendants, and plaintiff appealed. The appeal was dismissed, and plaintiff moves to set 'aside the order and for a reinstatement .of the cause. '

J. Leahy, Judge. Jack Curry and Doc Curry were convicted of unlawfully purchasing sheep from' one known to' have no right to sell, and they appeal.

<p>SYLLABUS BY THE COURT.</p> <p>1. Venue, like any other fact in a case, may he proven by circumstantial evidence. ' P. 213</p> <p>2. The plea of former jeopardy must be interposed at the earliest opportunity, and, if not, it is waived, and cannot be raised for the first time after verdict. P. 215</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. A party to a suit in a civil action will not be allowed to introduce general evidence as to his reputation as to moral character, unless the same is an issue in the case from the nature of the action, like a case of libel or slander. P. 217</p> <p>2. Good moral character cannot be established by the introduction of an ex parte certificate or statement. P. 218</p> <p>3. In a suit for criminal conversation and seduction of plaintiff’s wife, a certificate of good moral character of plaintiff, signed by Gen. Goethals, Governor of the Panama Canal Zone, was inadmissible, and was prejudicial. P. 218</p>

Suit by H. F. Timm and another against John F. White and other. From the judgment, plaintiff and the defendant named appeal. Transcript by stipulation to be used in both appeals. On motion to strike bill of exceptions of appellee.

<p>SYLLABUS BY THE COURT.</p> <p>1. A motion to dismiss a writ of error or appeal for failure to file a transcript, of record or assignments of error within the time required by statute, not made until after the appellant or plaintiff in error has cured the default, will be denied. P. 223</p> <p>2. Where an appellant files a motion for extension of time within which to file assignments of error before appellee has taken advantage of the default, such motion has the effect of curing the default if granted by this court. P. 223</p> <p>3. An extension of time granted by the trial court for settling and signing the bill of exceptions automatically extends the return day for the appeal or writ of error to 10 days beyond such extended time. P. 224</p> <p>4. The trial court may grant a second extension of time within which to settle and sign the bill of exceptions, where a praecipe for the record has been filed within the time limited by the statute. P. 225</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Diagram or sketch made by witness to illustrate his testimony was properly admitted in evidence, although not accurate in some particulars. ■ P. 226</p> <p>2. A printed map, showing sections, townships, and ranges, was properly admitted in evidence, where the sole purpose of the same was to show the distance from one established point to another established point. P. 227</p> <p>S. Witness who had been in butchering business for many years held competent to testify as to color and breed of hogs, after same had been dressed. P. 227</p> <p>4. Objection to question tending to show ill feeling between a witness for the state and witness for the appellant was properly sustained, where the court was not informed by counsel for appellant that the purpose was to show ill feeling between the witness for the state and the appellant. P. 227</p>

Petition by the State, on the relation of P. H. Sisney, against the Board of County Commissioners, Quay County, and another, for a writ of certiorari to quash proceedings in fixing damages in laying out road. Judgment for defendants, and petitioner appeals.

<p>SYLLABUS BY THE COURT.</p> <p>1. A court of equity will not sit in review of the proceedings of subordinate, political, or municipal tribunals; and, where matters are left to the discretion of such bodies, the exercise of that discretion, in good faith, is conclusive, and will not, in the absence of fraud, be disturbed. P. 235</p> <p>2.' Boards of education of municipal school districts (section 8, c. 105, Laws 1917) are given authority to defray “all other expenses connected with the proper conduct of the public schools in their respective districts.” Held, in a suit to enjoin the expenditure of school funds for the purpose of carrying group-insurance for teachers and employees, where the pleadings admit that by carrying such group insurance the school board is enabled to procure better teachers and to retain such teachers in its employ^by so. doing at a much less expense than would be necessary except upon the payment of much larger salaries, such an expenditure is connected with the proper conduct of the public schools, and within the discretion intrusted to the board of education. P. 236</p>

Ación by A. A. Strickland against A. R. ■ Elliott and others. From a judgment entered on plaintiff’s refusal to plead further after the sustaining of a demurrer to his amended complaint, he appeals.

<p>Appeal from District Court, Colfax County; Leib, Judge.</p> <p>Action by Cleofas R. Martinez against the Floer-sheim Mercantile Company and another. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from District Court, Guadalupe County, Leahy, Judge.</p> <p>Action by Jewel Tadloek, a minor, by next friend, S. B. Tadloek, against School District No. 29 of Guadalupe County, N. Mex., and another. From a judgment for plaintiff, defendants appeal.</p>

Action for divorce by Dominick Cassan against Jessie Cassan. From a judgment for plaintiff but allowing defendant alimony, he appeals, and defendant cross-appeals.

<p>SYLLABUS BY THE COURT.</p> <p>Where in a suit for a commission the court below, upon conflicting evidence, found that the plaintiff was the procuring cause of the sale, and gave judgment in his favor for an amount which this court cannot say, as a matter of law, is excessive, the judgment of the lower court will be affirmed.</p>

Suit by C. M. Macy against Fred Mielenz for partition, in which the Dexter State Bank intervened. From a judgment in favor of the intervener, plaintiff appeals.

Antonio Carpió was convicted of murder in the first degree, and he appeals. The court should have granted appellant’s motion to instruct the jury to acquit him, because of variance between indictment and proof. Smith v. State, 7 Tex. App. 382; People v. Knapp, 71 Cal. 1, 11 Pac. 793 (1886) ; State v. Walker, 9 Houst.

<p>SYLLABUS BY THE COURT.</p> <p>1. The obligation of the appellant to perform the judgment rendered on appeal results from the judgment itself, and an appeal bond is accordingly valid without Ms signature, unless the statute expressly requires execution by the appellant. P. 274</p> <p>2. A cost bond on appeal is valid and effective, even though it was executed by the sureties and approved by the clerk before the appeal was allowed by the court. P. 274</p>

Action by G. J. (5oury against Mauricio Chavez, in which Hilario Baca intervened. There was an order denying his motion to quash and intervener brings error. On motion to dismiss.

<p>SYIiLABUS BY THE COURT.</p> <p>Where a lease is put in escrow to be recorded upon the happening- of certain events or the fulfillment of certain conditions, and such events do not happen and the conditions are not fulfilled, the recording of such lease without the consent of the lessor entitles him to have the lease declared null and void and the record thereof canceled.</p>

In the matter of the taxes of Raabe & Mauger for the year 1919. On petition of the taxpayer, the taxes were abated, and the State Tax Commission appeals.

<p>SYLLABUS BY THE COURT.</p> <p>1, 2. In a preliminary hearing of a person charged with the commission of a felony, the justice of the peace constitutes a “court,” and the preliminary hearing a “cause,” within the meaning of section 1663, Code 1915. P. 283</p> <p>3. An indictment under section 1663, Code 1915, in the words of the statute, held sufficient. P. 286</p> <p>4. The indictment having alleged the unlawful purpose of the attempted persuasion or intimidation, it was not necessary to allege that the persuasion or intimidation was done “knowingly.” P. 286</p> <p>5. Under the circumstances, evidence as to larceny of property held admissible. P. 286</p> <p>6. Under the facts of the case, held, that it was immaterial that the record of the justice of the peace showed that certain persons were found guilty of larceny of whiskey. P. 286</p> <p>7. It is discretionary with the trial court whether it will sustain an objection or grant a motion to strike out evidence theretofore admitted without, objection. P. 288</p> <p>8. Evidence establishing a crime for which the accused is not on trial, but relevant to the intent with which the act charged in’the indictment in the instant case was done, held admissible. State v. Starr, 24 N. M. 180, 173 Pac. 674, followed. P. 288</p>

<p>Appeal from District Court, Bernalillo County; Hickey, Judge.</p> <p>Action by Henry M. Bowers against the City of Albuquerque. From a judgment for defendant, plaintiff appeals.</p>

Action by G. R. Vaughan against J. W. Jackson, who counterclaimed. From a judgment for defendant, plaintiff appeals. STATEMENT OP PACTS. On April 18, 1918, appellee entered into a written contract with appellant, whereby it was agreed that the appellee was to deed to appellant. 480 acres of patented land, and assign to him certain leases and contracts for state land, and sell 100 head of cattle, to be selected by the appellant out of appellee’s herd.

<p>Appeal from District Court, Curry County; Brice. Judge.</p> <p>Action by the West Texas Loan Company against J. H. Montgomery. Judgment for defendant, and plaintiff appeals.</p>

Action by Celso Lopez against the State Highway Commission of the State of New Mexico and others as members thereof and C. U. Strong as State Treasurer. Demurrer to complaint sustained, and plaintiff appeals.

Action by the New Mexico Motor Corporation against E. E. Bliss. Defendant’s motion for judgment on pleadings was granted, and the complaint dismissed, and, pending appeal by plaintiff, temporary injunction was allowed to remain in force. 'Forcible entry and detainer statute does not of itself forfeit lease.

Suit by George E. Ellis and others against the New Mexico Construction Company and City of Albuquerque to enjoin road construction work and to remove cloud on title arising from special assessment lien. Judgment dismissing the complaint, and plaintiffs appeal:

Action by the Tryone Knitting Mills against Barney Rubin in the justice court, where judgment was rendered against the defendant, and on appeal to the district court and trial de novo judgment was again rendered for the plaintiff, and the defendant appeals.

<p>Appeal from District Court, Taos County; Lieb, Judge. .</p> <p>Suit by William D. Kershner against the Trinidad Milling & Mining Company and others. Decree for defendants, and plaintiff appeals.</p>

Proceedings for the appointment of Joseph R. Wilson, as executor of the will of A. M. J. Cardoner, deceased, opposed by E. P. Bujac and others. A judgment of the probate court finding Joseph R. Wilson qualified to act was affirmed on appeal to the district court, and objectors appeal.

Action by Jesse Morehead against the Atchison, Topeka & Santa Fe Railway Company. Judgment for plaintiff, .and the defendant appeals. Appellee was, as a matter of law, guilty of such contributory negligence as to bar his recoverytin any amount. Toledo S. & W. R. Co. v. Gallagher, 109 Ill. App. 67; Mercer v. Walker, 58 Pac. 27, 9 Kan. App. 882, 60 Pac. 735, 61 Kan. 736; M. K. & T. Ry. Co. v. Duffey, 71 Pac. 261, 66 Kan. 735; St. Louis & S. Ry.

<p>Appeal from District Court, Colfax County; Lieb, Judge.</p> <p>Action by John Morrow against Severino Martinez. Judgment for plaintiff, and the defendant appeals.</p>

<p>Appeal from District Court, Otero County; Ed Mechem, Judge.</p> <p>Suit by S. W. Fairchild against the Cloudcroft Lumber & Land Company and others. Judgment for the defendants, and the plaintiff appeals.</p>

<p>SYLLABUS BY THE COURT..</p> <p>1. Instrument providing for sale of “what ewe lambs I decide to sell from 6,800 ewes” constitutes a valid contract, and sale of such ewes to person other than purchaser named in contract constitutes a breach for which damages may be recovered. . P. 366</p> <p>2. Findings supported by substantial evidence will not be disturbed on appeal. P. 367</p>

<p>Appeal from District Court, Quay County; Leahy, Judge.</p> <p>Action by R. A. Prentice and another against C.. W. Cain and another. Judgment for plaintiffs, and defendants appeal.</p>

<p>Appeal from District Court, San Miguel County; Leahy, Judge.</p> <p>Action by the Optic Publishing Company against the Board of County Commissioners of the County of San Miguel. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Eddy County; Brice, Judge.</p> <p>Suit by W. H. Chisholm and others against E. P. Bujac. Decree for defendant, and plaintiffs appeal.</p>

<p>Appeal from District Court, Union County; Leib, Judge.</p> <p>Action by L. H. Morrison, as assignee of the Union County Farmers’ Society of Equity, Limited, against Ira N. Crisp. Judgment for the plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Eddy County; Brice, Judge.</p> <p>Action by Tom Wood against W. H. Chisholm and others. Judgment for plaintiff, and defendants appeal.</p>

Application by the State, on the relation of Arthur. J. Evans on a writ of mandamus against Nelson A. Field, Commissioner of Public Lands, and another, to compel delivery of a deed or patent for land previously sold by the State to the relator upon deferred' payment plan. Judgment for the relator, and the defendants appeal.

<p>Appeal from District Court, Union County; Leib, Judge.</p> <p>Suit by Charles L. Hunt against Dave Ellis. Judgment fo rthe defendant, and the plaintiff appeals.</p>

<p>Appeal from District Court, Union County; Leib, Judge.</p> <p>Action by the Douglas Fir Lumber Company against Star Lumber Company. Judgment for plain-' tiff, and defendant appeals.</p>

William G. Kelly was convicted of obtaining money and property from the State of New Mexico by false pretenses, and from the judgment and sentence, he appeals.

<p>Appeal from District Court, Mora County; Leahy, Judge.</p> <p>Action by J. H. Lebert against F. B. Misner. Judgment for plaintiff, and defendant appeals.</p>

Action by W. H. Shackleford against A. E. Mc-Glashan and another to cancel a tax deed and subsequent conveyance based on it. Demurrer to complaint sustained, and the plaintiff appeals.

<p>Appeal from District Court, Guadalupe County; Leahy, Judge.</p> <p>Action by Leandro Sena against the Board of County Commissioners of Guadalupe County. Judgment for plaintiff, and defendant appeals.</p>

<p>SYLLABUS BY THE COUET.</p> <p>(1) A witness may be interrogated upon cross-examination concerning specific acts of moral misconduct and wrongdoing, to affect the credibility of such witness and the weight to be given to his or her testimony, but extrinsic or independent evidence regarding such matters is not admissib'e, as the cross-examiner is concluded by the answers given by the assailed witness with reference thereto. P. 467</p> <p>(2) Evidence reviewed, and held, that the prosecutrix is not corroborated as is required in a case of this character, and therefore there is not sufficient evidence to sustain the verdict. P. 468</p> <p>(3) In case of this kind, it is error to refuse a proper tendered instruction of a cautionary character advising the jury of the nature of the case, the ease with which an accusation of this kind may be lodged and the difficulty of defending against the same, and the necessity and extent of resistance required of the prosecutrix as well as the force used to overcome the same, where no proper instruction covering the subject is contained in the court’s general instruction. P. 471</p>

■ Appeal from District Court, Torrance County; Ed Mechem, Judge. Suit to quiet title by the Meyers Company against Rumaldo Mirabal and others. From a decree in favor of defendants, canceling a sheriff’s deed, the plaintiff appeals.

Jack Diamond was convicted of attempting to incite revolution and opposition to the organized government of the United States of America and of the State of New Mexico, and he appeals.

- Proceeding by William H. Rhodes and others against C. N. Yater and others to contest the will of William Rhodes, deceased. Will held invalid in the probate court, but held valid in the district court on appeal, and admitted to probate. Contestants appeal.

Action by T. H. Zintgraff against John T. Chap-' man and another on a promissory note, and to foreclose a mortgage, in which P. H. Sisney and another, doing business under the name and style of Sisney & Dykes, and another intervened, and from the judgment in favor of the plaintiff, and against the interveners, the latter appeal.

<p>Appeal from District Court, Sandoval County; Hickey, Judge.</p> <p>Ross Liston was convicted of the larceny of cattle, and appeals.</p>

<p>Appeal from District Court, Sandoval County; Holloman, Judge.</p> <p>. Luis Chaves was convicted of murder in the second degree, and he appeals.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Appeal from District Court, Union County; Lieb, Judge. Action by the State Bank of Commerce against Jacob Spei-del. Judgment in favor of the plaintiff, and the defendant appeals. Affirmed. Thos. F. Savage, of Clayton, for appellant. Hugh B. Woodward, of Clayton, for appellee.</p>

<p>Appeal from District Court, Taos County; Leib, Judge.</p> <p>Action by A. R. Manby and others against A. C. Voorhees and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>SYLLABUS BY THE COURT.</p> <p>(1) A debt barred by the statute of limitations is revived by an admission that it is unpaid made in writing and signed by the party to be charged. P. 531</p> <p>(2) It is not necessary that such an admission amount to a new promise to pay, express or implied. P. 531</p> <p>(3) It is not necessary that the admission be made to the creditor. P. 533</p> <p>(4) The fact that the admission is made in a deposition in answer to cross-interrogatories does not alter its effect. P. 534</p>

<p>SYLLABUS BY THE COURT.</p> <p>(1)' A verdict not supported by substantial evidence will be set aside on appeal. P. 540</p> <p>(2) A requested instruction covered by instructions given of the court’s own motion is properly refused. P. 540</p> <p>(3) Assignments of error presented but not argued in the brief will not be considered. P. 540</p>

<p>Appeal from District Court, Santa Fé County; Holloman, Judge.</p> <p>Action by the Capital City Bank against the Board of County Commissioners of Santa Fé County. Judgment for plaintiff ,and defendant appeals.</p>

<p>SYLLABUS BY THE COURT:</p> <p>(1) Parol understanding held to devitalize written contract of subscription to capital stock, and to change the purpose in respect to a matter plainly covered by.it’s terms and therefore to be inadmissable. . P. 546</p> <p>(2) Where the statute under which a- corporation is or-r ganized permits organization upon subscription of less than the authorized capital stock, subscriptions made after incorporation are not subject to the implied condition that all the authorized capital shall be subscribed. P. 548</p>

<p>Appeal from District Court, Colfax County; Leib, Judge.</p> <p>Suit by Harriet S. Armstrong against Walter W. Concklin. Decree for plaintiff,, and defendant appeals.</p>

Proceeding in mandamus by the State, on the relation of Narciso Sanchez and others, against Pedro A. Casados and others, to compel furnishing of water, and during the pendency of an appeal the court decreed the relators should have their proportionate share of water, and from the judgment denying mandamus and holding that certain charges against users were legitimate, and that for the nonpayment thereof the relators could be deprived of water, the relators appeal.

<p>SYLLABUS BY THE COURT</p> <p>Where neither party in an action in ejectment proves title in himself to the property in question, and the evidence as to prior possession on the part of the plaintiff is conflicting, it is error to direct a verdict in his favor. The case should have been submitted to the jury.</p>

Suit by J. D. Terry and wife against S. G. Hum-phreys and the Artesia Oil & Gas Company. From the judgment, plaintiffs appeal, and from part of the judgment defendants file cross-appeal.

<p>SYLLABUS BY THE COURT</p> <p>(1) Involuntary manslaughter, as defined by section 1460, Code 1915, is confined to cases where the killing is unintentional. P. 577</p> <p>(2) It is reversible error to submit the issue of involuntary manslaughter where all of the evidence and all of the inferences therefrom show that the killing was intentional. P. 579</p>

<p>SYLLABUS BY THE COURT</p> <p>(1) No mere words, however opprobrious or indecent, are deemed sufficient to arouse ungovernable passion, so as to reduce a homicide from murder to manslaughter. P. 596</p> <p>(2) The rule that the court should limit the issues to the degrees of crime shown by the evidence is the same in cases where the evidence is wholly circumstantial as where the evidence is direct. In the former class of cases, however, where the circumstances shown are susceptible of two or more interpretations, it is for the jury, and not the court, to draw the proper inferences from the evidence. P. 598</p> <p>(3) It is reversible error to submit, in a murder case, the issue of voluntary manslaughter to the jury where no such issue is involved in the evidence. P. 601</p>

<p>SYLLABUS. BY THE COURT</p> <p>A general verdict in a replevin case is sufficient, iri the absence of a request for special findings.</p>

Action by George M. Neel against William J. Barker. From a judgment affirming the decision of the Commissioner of Public Lands, and denying plaintiff’s application for an oil and gas lease on certain state lands, plaintiff appeals.

Action by G. J. Coury against Mauricio Chavez. Judgment for plaintiff and sale ordered of certain real estate levied upon under writ of attachment. Hilario Baca, a stranger to the proceeding, moved for permission to enter special appearance in order to quash the attachment. Motion denied, and Baca brings error.

<p>Appeal from District Court, Quay County; Leib, Judge.</p> <p>Action by J. H. Nations against Hugo Lowenstern and Others. Judgment for defendants, and plaintiff appeals.</p>

Mechem, Judge. Action by Antonio Lopez, administrator of the estate of Maria Ignacia Baca de Lopez, against Severo Lopez, and others, and from a judgment dismissing the complaint the plaintiff appeals.

<p>SYLLABUS BY THE COURT</p> <p>(1) In a replevin suit to recover cattle held under a chattel mortgage for breach of condition in such mortgage, where a third person claims some of the cattle as his own under a bailment to the chattel mortgagor, it is error to instruct the jury that “there is no evidence in this case that at the time the mortgage in question was executed the plaintiff had any knowledge of such contract. Therefore if the defendant Duckworth at that time mortgaged to the plaintiff bank any cattle that may have been intrusted to him by Knox, it was entitled to the possession of the same at the time this action was begun,” because mere possession by one without other indicia of ownership does not give the possessor the right to convey any better title than he has. P. 629</p> <p>(2) In a replevin suit to recover cattle under a breach of the conditions of a chattel mortgage, it is error to instruct the jury that the burden of proof is upon a defendant, who claims some of the cattle in question, to prove his claim by preponderance of evidence, for the burden in a replevin suit is' upon the replevin plaintiff to prove his right to possession, and the defendant’s claim of ownership amounts only to a general denial of the plaintiff’s right to possession. It is not new matter as to which the burden of proof is upon him. P. 630</p> <p>(3) A requested instruction as to the construction of a chattel .mortgage considered, and held properly refused. P. 630</p>

Proceeding by Ida B. Merrill against the Peñasco Lumber Company, employer, and the Western Indemnity Company, insurer, for compensation under the Workman’s Compensation Act for the death of plaintiff’s husband, J. M. Merrill. Judgment for plaintiff, and defendants appeal.

<p>SYLLABUS BY THE COURT</p> <p>(1) The term of an oil and gas lease, definitely fixed, is not extended by payment of rentals which, under the provisions of the lease, may be paid in lieu of drilling. P. 641</p> <p>(2) Defects in a complaint, supplied by other pleadings or proof below, may not be raised for the first time on appeal. P. 642</p>

Suit for specific performance by George H. Blu-menshine against William H.' Adams and others. Decree for plaintiff, and defendants appeal.

<p>Petition by the Attorney General, on the relation of James B. Read, as State Bank Examiner, for a writ of mandamus against Raymond R. Ryan, Judge of the District Court of the Sixth Judicial District.</p>

Application by W. S. Day against H. Trigg in the district court for a writ of audita querela to vacate a judgment in favor of the latter and against the former. A demurrer to the petition was sustained, the proceeding dismissed, and petitioner appeals.

<p>Appeal from District Court, Santa Fé County; Holloman, Judge.</p> <p>Suit by the New Mexico Realty Company against James W. Norment and another. Judgment for the plaintiff, and the defendant Security Investment & Development Company appeals.</p>

<p>Appeal from District Court, Chaves County; Brice, Judge.</p> <p>Action by the Diamond X Land & Cattle Company against the Director General of Railroads and the Atchison, Topeka & Santa Fé Railway. Judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from District Court, Union County; Leib, Judge.</p> <p>Action by Hugh B. Woodward and others against Wallace Libbey. Judgment for plaintiffs, and the defendant appeals.</p>

<p>SYLLABUS BY THE COURT</p> <p>(1) Where the main object in a suit or action is for the purpose of setting aside a judgment or decree, such an attack is a direct, and not a collateral, attack. P. 686</p> <p>(2) A default decree in a suit to quiet title, in which the plaintiff’s right and title were based upon a tax deed, invalid because the taxes for which it was issued had been paid, cannot, in the absence of fraud, be set aside by a subsequent suit for that purpose. This doctrine of res adjudicata applies. P. 687</p>