Volume 4 — New Mexico Reports

<p>Appeal — Equity—Decebe hot "Wakbanted by -Bill — Demand bob Amendment. Where complainants have filed a bill, relying for relief upon certain grounds alleged therein, and have obtained a decree in their favor upon such grounds, which cannot be sustained upon the grounds on which it was granted, they cannot have such decree sustained on appeal on other grounds than those relied upon in their bill, although the same may show a cause for relief, but the cause will be remanded, with leave to amend; otherwise to dismiss.1 </p>

It is the universal practice, both at common law and under codes, that thememoranda of matters excepted to be taken at the time of the occurrence, and that these be formally embodied in a bill signed by the presiding judge-during the term, or within some short time thereafter, while the recollection, is yet fresh. The New Mexico statute requires the bill to be signed within 30 days after judgment, unless the time is enlarged by the court or judge.. Comp. Laws, § 2198.

<p>Action or Suit — Change or Venue — Grounds eor — Organized Combination.</p> <p>An application for a change of venue, under Code N. M. § 1883, will not be granted on the ground that a fair trial cannot be had within the county where the action is brought, if the affidavits do not set forth facts sufficient to sustain the application; and where the plaintiffs in an action of replevin own a mine from which the ore in controversy name, and the application is made on the ground that an organized combination was continually stealing ore from the mine, it ought to be shown of what persons this combination was composed, and in what manner they were trying to influence the action of the jury.</p>

<p>Appellate Feactice — Assignment oe Ekkoks — Failure to File in Time.</p> <p>A brief in the usual form, but which was not filed until the fifth day of the term, contained, under the head “Assignment of Errors, ” a statement that the trial court erred in certain particulars set forth. Meld that, even if it can be regarded as an assignment of errors at all, which is doubtful, it was not filed in time to comply with Comp. Laws N. M. § 3189, providing that error must be assigned “on or before the first day of the term to which the cause is returnable. ”</p>

Ejectment. Trial without a jury. Judgment that plaintiffs obtain possession of the lands on payment of the sum of $500 to the defendants for improvements made by them., Plaintiffs bring error.

<p>Appeal from district court, Lincoln county.</p> <p>Motion to strike from docket.</p>

<p>1. Action — Form or — Cash or Contract.</p> <p>The complaint alleged that defendants, in pursuance of a design to extend their business, agreed with plaintiff that he should open a store in a certain place, and that they would supply him with goods, to carry on the business ; that, in reliance thereon, plaintiff abandoned his other business, and leased a store in the place named, and made other preparations to go into the business proposed, but defendants neglected and refused to perform their part of the contract. Upon the facts stated, held, that an action on the case would not lie.1 </p> <p>2. Pleading — Demurrer—Waiver.</p> <p>The right to demur is not waived by calling for a bill of particulars.</p>

<p>Appeal from district court, Bernalillo county.</p>

<p>1. Appeal — Assignment of Eeeoes — Waives of-Objection.</p> <p>An assignment of errors cannot be objected to by appellee, because contained in appellant’s printed brief, after he has treated it as a good assignment by filing a joinder thereto.</p> <p>2. Same — Peinting Recoed — Comp. Laws N. M. § 2201.</p> <p>A judgment in ejectment for land, the value of which is not shown, and for money damages in a less sum than $1,000, does not make a case within Comp. Laws N. M. § 2201, requiring the record on appeal to be printed, if the amount of the judgment or value of the property in controversy exceeds $1,000.</p> <p>3. Ejectment — Defective Title — Possession Theeetjndee.</p> <p>Defendant in ejectment bought a lease of the premises from plaintiffs tenant, but, after entering, repudiated the tenancy. Plaintiff had prior possession under a deed from one who had located a mining clairii including the premises. Defendant not setting up any different title, held, that plaintiff’s title must prevail over defendant’s possession, whether or not the proceedings for the location of the mining claim were valid.1 </p> <p>4. Continuance — Statement of Evidence — Law and Fact.</p> <p>A statement in an application for a continuance that a witness will prove that he located the land in controversy as a mill-site, in connection with a mining claim, does not state “particular facts, as distinguished from legal conclusions,” as required by Comp. Laws N. M. g 2049; as whether a mining claim has been located so as to sustain the location of a mill-site in connection therewith is a question of law, depending on certain facts.</p>

<p>Error to district court, San Miguel county. Ejectment.</p>

<p>Appeal from Third district court, Grant county.</p>

<p>Error to Second judicial district court, Socorro county.</p>

<p>Appeal from district court, Grant county.</p> <p>Action of replevin. Judgment for plaintiff. Defendant appeals.</p>

■ Quo warranto to try title to the office of district attorney for the Third judicial district. Judgment against the defendant, who appeals.

<p>Appeal from district court, Socorro county.</p> <p>Indictment for murder.</p>

<p>Appeal from district court, San Miguel county.</p> <p>Indictment for murder.</p>

<p>X Ejectment — Color of Title — Paper Title.</p> <p>Defendants in ejectment, who plead adverse possession, under color of title, for the statutory period, must show some sort of document or paper title.1 </p> <p>2. Same — Limitations—Married Woman.</p> <p>Where the defense is the statute of limitations, the fact that plaintiff, a married woman, claims title under an unrecorded deed, will not exclude her from the saving clause of the statute.</p> <p>8» Same — Registration Laws — Unrecorded Deed.</p> <p>Comp. Laws N. M. §§ 2761-2763, providing for the registration of deeds, are intended to protect subsequent purchasers and mortgagees, and will not enable a trespasser, without color of title, to dispute the title of the grantee of an unrecorded deed.</p>

<p>Homicide — Degeees of Muedee — Eekob ibt Chaege — Reveesad.</p> <p>Where, on a trial for murder, the judge, in charging the jury, gives them a definition of murder in the fourth degree, and instructs them, by inadvertence, that such facts constitute murder in the third degree, and the jury so find, there being insufficient evidence to support a verdict of murder in the third degree, the judgment on such verdict will be reversed on appeal for the error in the charge, notwithstanding a correct definition of murder in the fourth degree, with the penalty, given in a subsequent part of the charge.</p>

<p>Appeal from district court, Santa Fe county.</p> <p>On motion to reconsider order dismissing writ of error.</p>

<p>Appeal from dietriet court, Third judicial district, sitting in Grant county.</p> <p>Action of ejectment. Judgment for plaintiff. Defendants appeal.</p>

<p>Appeal — Failure to File Transcript — Damages—Comp. Laws N. M. Qty 2189, 2191._</p> <p>Under section 2189, Comp. Laws N. M., requiring an appellant to file a transcript of the record on appeal with the clerk of the supreme court at least 10 days before the first day of the term to which the appeal is returnable, or the appellee may produce such transcript in court, and, if it appears thereby that an appeal has been allowed, the judgment will be affirmed unless good cause can be shown to the contrary; and section 2191, providing that, on the affirmance of any judgment, the supreme court may award damages to the appellee in any sum not exceeding 10 per cent, of the amount of the judgment, — a judgment in an action on contract against the defendant, who appeals therefrom, will be affirmed, with damages, when ho fails to file the transcript as required, and the appellee produces it in court, and it appears therefrom that the appellant had no defense, and that the appeal was taken' for delay.</p>

<p>Appeal from district court, First district, San Miguel county.</p> <p>Attachment proceedings. Judgment. Writ quashed. Judgment for plaintiff on merits. Plaintiff appeals.</p>

<p>Exceptions — Signing and Filing of Bill —Service — Section 2198, Comp. Laws IT. M. 1884 — Rule 24, Sup. Ct.</p> <p>Under section 2198, Comp. Laws N. M. 1884, providing that bills of exceptions must be settled and signed within 30 days after the judgment is entered, and under section 1 of rule 24 of the supreme court of the territory, requiring the appellant to prepare his record and bill of exceptions, and serve a copy thereof upon the appellee or his attorney within 10 days after judgment, the bill of exceptions must be served, signed, and filed within the time specified, unless it shall be extended or enlarged by order of the court or judge, the time cannot be extended by the stipulation of the parties.</p>

<p>1. New Trial — Resignation oe Trial Judge before Exceptions Saved.</p> <p>A new trial will not be ordered by the supreme court of New Mexico on the application of a plaintiff in error, on the ground that by the resignation of the judge before whom the cause was tried he has lost his right to have the judgment reviewed, when both the record and bill of exceptions have been struck from the files for the reason of not being signed and sealed by the judge who tried the cause.1 </p> <p>2. Appeal — Motion by Appellee to Affirm — Comp. Laws N. M. § 2189.</p> <p>Where the appellate court has stricken from the files the record and bill of exceptions filed by the plaintiff in error because not signed and sealed by the judge who heard the cause, and who is out of office, and defendant in error files a transcript of the record which does not show that an appeal has been allowed, or writ of error issued, and moves to affirm under Comp. Laws N. M. g 2189, such motion will be denied.</p>

<p>Appeal from district court, Socorro county.</p>

<p>Appeal from Sierra county.</p> <p>Motion to strike record and bill of exceptions from the files. Motion sustained.</p>

<p>Appeal from Bernalillo county.</p>

<p>Criminal Law — Appeal—Escape Pending.</p> <p>Where one convicted of a criminal offense appeals, and pending the appeal breaks jail and escapes, his appeal will be dismissed.</p>

Proceeding in equity, at chambers, by plaintiffs in error against Kuhn, receiver, defendant in error, to show cause why he should not be punished for contempt, etc. On motion to dismiss.

<p>1. Statutory Construction — Repeal oe Repugnant Provisions.</p> <p>Comp. Laws N. M. 1884, § 881, makes it a misdemeanor for the proprietor or superintendent of a public house where liquor is sold to permit games of cards, dice, etc., to be played on his premises. Section 884 provides for the prosecution of such offenses by indictment. Section 2490, enacted subsequently, authorizes the prosecution of all misdemeanors by information. Held, that sections 881 and 884 are general, and not special, statutes, and that the effect of section 2490 is to repeal so much of section 8S4 as is repugnant to its provisions, and that consequently the offense created by section 881 may be prosecuted by information.</p> <p>2. Information — Filed ex Officio by Prosecuting Attorney — Affidavit.</p> <p>Under the rules of the common law, as adopted in the various states, it is not essential that an information filed ex officio by a prosecuting attorney, in the prosecution of a misdemeanor, should be supported by affidavit.</p> <p>3. Same — Oath of Office — Constitutional Law.</p> <p>Under Const. U. S. 4th Amend., protecting the people against unreasonable searches and seizures, and providing that no warrant shall issue but upon probable cause, supported by oath or affirmation, it is not essential that an information, filed ex officio by a prosecuting attorney in the prosecution of a misdemeanor, should be sustained by affidavit other than his oath of office.</p>

<p>Petition for a writ of prohibition.</p>

Assumpsit by plaintiff, W. B. Childers, against defendant, 'William E. Talbott, for rent. Defendant pleaded the statute of frauds, and on trial to the court, j udgment for defendant, and plaintiff appealed.

Action by Charles H. Gildersleeve and others against the Water & Improvement Company to recover damages caused by the bursting of a water-pipe. Trial to the court below, and judgment for plaintiffs. Defendant appealed.

<p>Appeal from district court, Sierra county.</p> <p>Action on bond; judgment for plaintiff; defendant appeals.</p>

<p>Error to district court, Bernalillo county.</p> <p>Ejectment by Joel P. Whitney and Franklin II. Story, defendants in error, against Jose Maria Chaves y Garcia, plaintiff in error.</p>

<p>Appeal from district court, Grant county; William F. Henderson, Judge.</p>

<p>Appeal from district court, Grant county; S. F. Wilson, Judge.</p> <p>Assumpsit upon a bill of exchange and attachment by the O. J. L. Meyer & Sons Company, appellees, against Robert Black & Co., appellants.</p>

<p>■CobpObatxons — Contkaots—-Seal ob Obbioeb — Assumpsit.</p> <p>Under Comp. Laws N. M. §§ 2623, 2664, relating to “corporations,” the governing hoard of directors aione can alter the common seal of the company, and adopt anew one. The scroll or private seal of the chief engineer of a railroad corporation of that territory, affixed to a grading contract, is, therefore, not the seal of the company, and the contract is not a specialty, and assumpsit will lie against the company for its breach.</p>

This is a proceeding by mandamus to compel the board of county commissioners of Bernalillo county to canvass the returns from election precinct Ho. 10, and to issue a certificate of election to Charles W. Lewis. Judgment for plaintiff. Defendants appeal.

<p>Negotiable Instruments — Presumptions in Favor oe Holder — Fraud.</p> <p>In assumpsit by the indorsee of a promissory note, the evidence showed that defendant had given it, together with a set of diamonds, in payment for a lot; that he had bought the lot solely on the payee’s representations as to value; that at first he insisted on further time to examine it, but yielded when the payee told him that if he did not take it then he would, not get it at all; that he was a jeweler, and was induced by the expectation of a profit of several hundred dollars on the diamonds, and the payee’s promise not to negotiate the note; that the payee’s grantor, to whom he claimed to have paid $2,000 for the lot, but to whom in fact he had only paid $1,000, was easily accessible, and defendant could have ascertained the facts by inquiry. The evidenceas to the actual value of the lot was conflicting, and varied from $1,000 to $2,300. Neld insufficient as evidence of fraud in the inception of the note to rebut the presumption in plaintiff’s favor, as holder, and put him to his proof that he had paid value for it.1 </p>

<p>Post-Omtcie — Robbing the Mails — By Stage Driver — Rey. St. TJ. S. § 5467.</p> <p>Rev. St. U. S. § 5467, provides that “any person employed in any department of the postal service who shall embezzle * * * any letter * * * intrusted to him, or which shall come into his possession, and which was intended to be conveyed by mail or delivered by any carrier, mail agent, route agent, letter carrier, or other person employed in any department of the postal service * * * » shall be guilty of the offense of robbing the mails. Held, that a stage driver employed by a stage company, which had a contract for carrying the mails, and who was sworn as a mail carrier, is an employe of the postal service, within the meaning of this section, though he was hired and paid by the stage company and received no compensation from the government.</p>

Assumpsit by August Kirchner, plaintiff in error, to recover $3,500 a» damages for an alleged breach of contract by Saron 1ST. Laughlin, defendant in error, and one Joseph W. Wiley.

Suit by Jefferson and J. S. Baynolds, trading as Baynolds & Co., appellees, for rent alleged to be due under a written lease from Abraham Staab and Edward Spitz, as surviving partners of the firm of Staab & Co., appellants.

Action by the United States against the San Pedro & Canon del Agua Company for the cancellation of a patent to land. Judgment for defendant, and plaintiff appeals. When, by the rules of law, the legal title must prevail, the action of the land department is conclusive. But courts of equity, both in England and this country, have always had the power, in certain cases, to correct injustice, both in judicial and executive action founded in fraud or mistake.

<p>Error to district court, Santa Ee county.</p>

<p>Appeal from district court, Rio Arriba county.</p>

J. G. Potter filed a petition against the Rio Arriba Land & Cattle Company, and another to compel the specific performance of a contract. On hearing the petition was dismissed for want of equity, and plaintiff assigns error. Specific performance cannot be claimed if the effect would be that the defendant would forfeit the property. Hepburn v. Dunlop, 1 Wheat. 198; Orr v. Hodgson, 4 Wheat. 465. Act of congress approved March 3, 1887, does not act retrospectively.

B. Axtell, Judge. Bill by José Leandro Perea against Candelaria Montoya Gallegos, to set aside a conveyance made to her by her husband, José M. Gallegos, a debtor of complainant, as fraudulent. José M. Gallegos died before the institution of the suit, and during its pendency the complainant also died, whereupon Jesus Maria Perea and another, his administrators, were substituted as complainants. Decree for defendant, and complainants appeal.

<p>1. Railroad Companies — Consolidation—Transfer of Land Grant and Franchise.</p> <p>Act Cong. March 3,1871, incorporating the T. & P. R. Co., and granting lands in aid of the construction of its road, authorized it, by section 4, to purchase the land grant and franchise of, and to consolidate with, any railroad company along its route. Section 5 authorized it to make traffic arrangements with other companies. Section 6 provided that the rights, franchises, and property of every description, belonging to the consolidated or purchased companies, should vest in and become the property of the T. <Sr P. Co. Meld, that said company had no authority to transfer its own land grant and franchises to another company, and retain merely an easement over the right of way.</p> <p>2. Same — Power to Sell Road.</p> <p>The power given by the act to mortgage the lands, etc., for means to construct and operate the road, does not include the power to sell and assign them.</p> <p>8. Same — Forfeiture of Land Grant — Power of Congress.</p> <p>The fact that congress had reserved a right to adopt such measures as it might deem necessary to secure the completion of the road upon failure of the company to complete it, does not prevent congress from declaring a forfeiture of the land grant for such failure.</p>

Bill by Solon L. Wiley against the San Pedro & Canon del Agua Company and others, to enforce a mechanic’s lien. A demurrer to the bill was sustained, and complainant appeals.

<p>1. Contract — Construction—Certainty.</p> <p>In a contract for the sale of an undivided interest in a mine, it was stipulated that a balance remaining due on the consideration should be paid, when the mine was sold, out of tbe proceeds of the sale; tbe vendee to repay himself out of the first money realized from the sale money “necessarily laid out for assessment purposes,’’and all the balance of the money received to go to the vendor, until he should receive the amount due him. Held, that the sum promised to be paid wa3 certain.</p> <p>3. Equity — Jurisdiction—Remedy at Law — Enforcement of Lien.</p> <p>Where a vendor’s lien on certain mining interests is sought to be enforced in a court of equity, against an assignee of the property purchasing with knowledge of the lien, it cannot be objected that the plaintiff has an adequate remedy at law on the contract with the original vendee, where the latter is insolvent.</p> <p>8. Vendor and Vendee — Vendor’s Lien — Express Reservation.</p> <p>An express reservation is not needed to create a vendor’s lien.1 </p> <p>4. Same — Enforcement of Lien — Purchaser with Notice.</p> <p>In New Mexico, the lien of a vendor for purchase money can be enforced by his assignee for value, either as against the original vendee, or as against one who purchases from the latter with notice that the purchase money has not been paid.</p> <p>5. Same — Decree.</p> <p>In an action to enforce a vendor’s lien against an assignee for value of the original vendee, personal judgment should not be rendered against the assignee.</p>

<p>1. Embezzlement — Indictment—Sufficiency.</p> <p>Comp. Laws N. M. 1884, § 750, provides that “if any carrier or other person to whom any money, goods, or other property * * * shall have been delivered to be carried for hire, or if any other person who shall be intrusted with such property, shall embezzle or fraudulently convert to his own use * * * any money, goods, or property, either in bulk as the same were delivered, or otherwise, and before delivery of such money, etc., at the places or to the persons to whom they were to be delivered, he shall be deemed, by doing so, to have committed the crime of larceny. ” Meld, that an indictment founded on such section, which did not aver that property alleged to have been stolen was intrusted to defendant as a carrier, or to be carried, was defective.</p> <p>O. Same — Allegations of Unlawful Appropriation.</p> <p>An indictment for embezzlement, averring that the defendant was intrusted with certain enumerated articles, and that he did steal, take, and carry away said property, is insufficient, in not setting out the facts which constituted the unlawful appropriation.1 </p>

<p>1. Post-Oeeice — Embezzlement erom the Mails — Indictment.</p> <p>Rev. St. TJ. S. § 5467, prescribes the punishment for any one who embezzles any package intended to be conveyed by mail, and which contains certain enumerated articles, or “any other article of value. ” Meld, that an indictment under this statute which charged the embezzlement of a package containing “eight hundred dollars ” was sufficient, without setting out the kind of dollars, or that such dollars-possessed value.1 </p> <p>3. Same — Embezzling Registered Package.</p> <p>The said section provides that “ any person employed in any department of the-postal service, who shall secrete, embezzle, or destroy any letter, packet, bag, or mail of letters intrusted to him, or which shall come into his possession, and which was intended to be conveyed by mail; * * * any such person who shall steal or take any of the things aforesaid out of any letter, packet, bag, or mail of letters-which shall have come into his possession, either in the regular course of his official duties, or in any other manner whatever, and provided the same shall not have been-delivered to the party to whom it is directed, shall be punishable, ” etc. Meld, that an indictment against a postmaster for embezzling a registered package was-sufficient without negativing the proviso.</p> <p>8. Same — Evidence—Variance.</p> <p>In a prosecution for the embezzlement of a registered package, where there is-proof that such a package was actually put in the mail, and afterwards taken by the accused, a variance as to the name of the sender, or of the person to whom the-package was directed, is immaterial.</p> <p>4. Same — Sueeioiency.</p> <p>In a prosecution for the embezzlement of a registered package, it sufficiently appears that the accused was in the employ of the post-office department where it is-shown that demand was made upon him as postmaster for the registered package, both by the sender and the post-office inspectors; that he gave a receipt for the-package to a postal official; that he claimed to have forwarded the package to another postal official; and that his resignation as postmaster was demanded.</p> <p>5. Witness — Impeachment—By Written Testimony.</p> <p>In order to impeach witnesses by the introduction of their written testimony given at a former trial, a foundation must first be laid by showing them such written testimony, or reading it to them at the time of their interrogation.2 </p>

<p>Appeal from district court, Socorro county; W. H. Brinker, Judge.</p>

<p>On motion to retax costs.</p>

<p>1. Evidence — 'Weight and Sueeiciency.</p> <p>Plaintiff, who was one of the sureties on a bond, testified that, for the purpose of satisfying the demands of certain persons having claims against the principal, it was agreed among the sureties to borrow a sum of money; that plaintiff was authorized to borrow such sum; and that the sureties agreed to execute a note to the lender for the amount borrowed. Plaintiff was corroborated by one of the sureties and a boy in his employ. The defendant, who was also a surety, contradicted the plaintiff, and was confirmed by a surety. Held, that a finding of the court in favor of the plaintiff would not be disturbed.</p> <p>-.2. New Trial — Surprise.</p> <p>A motion for a new trial on the ground that the applicant was surprised by the introduction of certain testimony at the trial, and that such testimony could have been successfully met by a witness who was absent, is properly refused where it appears that the applicant did not make known his surprise when such testimony was offered, and that no continuance was asked for.</p> <p>■ 3. Same — Rulings on Evidence.</p> <p>Such a motion should not be granted on account of errors in rulings on evidence where it appears that the finding and judgment are right upon the whole case.</p> <p>-4. Interest — Rate.</p> <p>. In an action on a verbal contract, where a recovery is had by plaintiff, interest should be allowed at the rate of 6 per cent., under Comp. Laws N. M. 1884, § 1734, providing for such a rate of interest in the absence of a written contract fixing a different rate.</p>

<p>Appeal from district court, Sierra county; Henderson, Judge.</p> <p>Ejectment by Charles Seidler against Amwood Lafave. Yerdict and judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from district court, Sierra county; Henderson, Judge.</p> <p>Ejectment by Charles Seidler against A. J. Maxfield et al. Y'erdict and judgment for defendants, and plaintiff appeals.</p>

Action by F.-X. Vigil to contest the right of George H. Pradt to hold the office of county assessor. From an order striking out the answer of Pradt the latter appeals.

<p>1. Mines and Minins — Relocation Admits Validity of Location.</p> <p>A relocation of a mining claim is an implied admission of the validity of the original location, and an assertion that the relocator claims a forfeiture by reason of a-failure on the part of the original locator to make his annual expenditure.</p> <p>3. Same — Action fob Possession — Instructions.</p> <p>In an action to recover possession of a mining claim, where the only contention is as to the performance of the required annual work, it is sufficient to instruct the jury that plaintiff must prove some title and right to possession of the claim by a preponderance of the evidence, and that such right must be better than that of defendant. The same fullness and precision of instruction is not required as in cases-where the legal title is involved.</p>