Volume 5 — New Mexico Reports

Appeal, from a judgment in favor of relator, awarding a peremptory writ of mandamus ordering that the returns be canvassed by defendant on the certificate delivered, from the Second Judicial District Court, Bernalillo county. The facts are stated in the opinion of the court.

Error, from a judgment in favor of plaintiff, to the First Judicial District Court, Santa Fe County. The facts are stated in the opinion of the court. The statute requires an affidavit only when the mere execution of a paper is denied. It does not require a negative affidavit when the legal effect of the paper is denied. Craig v. Missouri, 4 Pet. 410. This was a suit brought by the state of Missouri, on a promissory note, and the only plea was non assumpsit.

The facts are stated in the opinion of the court. The charge in the indictment that the “full given name is to the grand jurors unknown,” meaning the full given name of the appellant, is a material averment, and should have been proved. Bishop, Directions and Forms, sec. 77; 1 Bish. Crim. Proc., secs. 459,495, 552, 676, 678, 680; Blodgett v. State, 3 Ind. 403 ( Stone v. State, 30 id. 115; 65 id. 213; Reed v. State, 16 Ark. 499; State v. Wilson, 30 Conn. 500; Comp.

Appeal, from a judgment in favor of defendant, from the Third Judicial District Court, Sierra County. The facts are stated in the opinion of the court. For requirements as to description of location claims, see Eevised Statutes, United States, section 2324. In the case of Baxter Mountain Q-.

The facts are stated in the opinion of the court. The count for embezzlement, in the indictment, is verbatim the Wisconsin statute, with the exception of the mere verbal' substitution in our statute of the word “bulk” instead of “the mass.” R. S.,Wis. (2 Tay. Stats. 1884), ch. 165, sec. 28.

Error, from a judgment in favor of plaintiffs, to tire Second Judicial District Court, Socorro County. The facts are stated in the opinion of the court. The court erred in overruling the demurrer to the bill. No lien existed in favor of Smith, as vendor of the mine, upon the facts shown.

The facts are stated in the opinion of the court. This indictment was bad, because it did not follow the words of the statute, in this, that the statute provided “that anyone who should steal and embezzle any letter, package,” etc., containing certain enumerated articles set out in the statute; the taking of any article not mentioned in the statute would not constitute a crime under it.

Appeal, from a judgment in favor of plaintiffs, from the Second Judicial District Court, Socorro County. The facts are stated in the opinion of the court. Counsel fees are not recoverable upon an attachment bond. It is well settled they are not recoverable upon an injunction bond. Oelrichs v. Spain, 15 Wall. 211. The same principle applies to the attachment bond. The amount of attorney’s fees paid was part of the actual damages recovered.

<p>Motion to retax costs.</p> <p>The facts are stated in the opinion of the court.</p>

Appeal, from a decree in favor of defendant, from the First Judicial District Court, Santa Fe County. The facts are stated in the opinion of the court. The court erred in sustaining the demurrer to that-part of the bill charging appellee as trustee and praying for an account of the rents and profits received by her. She is as much bound to repay the rents and profits, as to return the property wrongfully received. 2 Pom.

Appeal, from a judgment in favor of defendants, from the Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court. A mechanics’ claim for lien against property lying partly in one county, and partly in another, may be filed for record in either county, and a verification by. the attorney of the claimant is sufficient under the statute. Sec. 1524, Comp. Laws, N. M.; Phill. on Mech.

Appeal, from a judgment in favor of defendant, from the Third Judicial District Court, Dona Ana county. The facts are stated in the opinion of the court. The grant of the land in question to the Texas & Pacific Railway Company was a grant in praesenti, and' had the effect to convey the land to said company. Schulenburg v. Harriman, 21 Wall. 44; Tucker v. Ferguson, 22 Id. 527; U. S. v. Leavenworth R’y Co., 92 TJ. S. 745; Grinnell v. R’y Co., 103 TJ.

Error, from a judgment in favor of plaintiff, to the First Judicial District Court, San Miguel County. The facts are stated in the opinion of the -court. , There was error in admitting in evidence the bond, purporting on its face to be executed by certain parties, when it was in fact signed by five of them only, and two of those signing it having signed it on condition that all seven would sign it. Dair v. U. 8., 16 Wall. 6.

Error, from a judgment in favor of defendants on the issue under the affidavit in attachment, and the refusal of the court below to declare the law as requested by plaintiff, to the Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court.

Appeal, from a judgment in favor of contestant, from the Second Judicial District Court, Valencia County. The facts are stated in the opinion of the court. It was error to deny leave to eontestee to serve a copy of his answer upon contestant.

The facts are stated in the opinion of the court. By section 531, Compiled Laws, New Mexico, 1884, the district courts have appellate jurisdiction from the judgments and orders of the probate judges and justices of the pea.ce in all cases not prohibited by law, and possess a superintending control over them.

The facts are stated in the opinion of the court. A false affidavit made before an officer not authorized to administer that particular oath, although authorized to administer other kinds of oaths, will not sustain an indictment for perjury either at common law or under the statutes of the United States. United States v. Curtis, 107 U. S. 671.

Appeal, from a decree in favor of defendants, from the Second Judicial District Court, Valencia County. The facts are stated in the opinion of the court.

Ebbok, from a judgment in favor of plaintiff, to the Third Judicial District Court, Grant County. The facts are stated in the opinion of the court. Where a statute is of doubtful meaning, resort must be had to the intention of the legislature that framed it. Maynard v. Johnson, 2 Nev. Eep. 27; 1 Id. 271; Id. 409; 6 Id. 68; 7 Id. 15.

Appeal, from a judgment in favor of. defendants, from the Third Judieial District Court, Sierra County. The facts are stated in the opinion of the court. The theory of the court below seemed to be that the burden rested on appellant to prove that the assessment work as required by law, had been done .on the claim each year since its location down to the day of trial. This is not the law. Sec. 2324, Rev. Stat. IT.

Ebbob, from a judgment in favor of defendants, to the First Judicial District Court, Santa Fe County. The facts are stated in the opinion of the court. The so-called warrants were void. The law under which they were sought to be issued (Session Laws, 1874, chap. 4) provides for the issue of interest-bearing warrants only to pay for the completion of a courthouse, while these were issued and sold to raise funds for the original construction of a courthouse.

Motion to dismiss writ of error, and strike the record from the files. The facts are stated in the opinion of the court.

Appeal, from a judgment in favor of plaintiffs, from the Third Judicial District Court, Sierra County. The facts are stated in the opinion of the court. The “Dread Naught” location notice and record were insufficient under the laws in force to vest right of possession in appellees, whether the record be' considered upon its face or in connection with the evidence ; and no amount of labor or improvements could confer a valid possessory title.

Appeal, from a judgment in favor of the defendant indorser, from the the Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court. Defendant Talbott was a joint maker of the note, and the defendant Randall was his agent to fill up and deliver the note. Goodman v. Simonds, 20 How. 462; Bank v. Neal, Id. 351; Good v. Martin, 95 N. S. 95; Samson v. Thornton, 37 Am. Dec. 135; Stony v. Beaubeau, 39 Id. 128.

Error, from a decree in favor of defendants, to the First Judicial District Court, Santa Fe County. “A former judgment or decree, in order to conclude the question when raised again, must have been rendered upon the hearing of the parties upon the merits of the case.” 2 Madd. 311; 14 Yes. 232; Coop. Eq. PI. 270; 1 Atk. 571; Story Conflict Laws, 506; 3 Story Const. 178; 3 Cranch, 283; 6 Whea. 109; 2 Gall. 328; 1 Brown Appx. 1.

Appeal, from a judgment in favor of plaintiff, from the First Judicial District Court, Santa Fe County. The facts are stated in the opinion of the court. The action being one relating to the settlement of the estate of a deceased person, belonged to the chancery side of the court, and should have been tried as a cause in equity. It is true that in chancery causes issues of fact may be framed and such special issues submitted to a jury.

Ebbob, from a decree in favor of defendant, to the First Judicial District Court. The facts are stated in the opinion of the court. Held: and are bounded by their local limits. Toland v. Sprague, 12 Pet. 300. Where the subject-matter is local, and lies beyond the limits of the district, the circuit court sitting in the district has no- jurisdiction. Northern Ind. Bailroad Co. v. Michigan Central Bailroad Co., 15 How. 233.

Error, from a judgment in favor of plaintiff, to the First Judicial District Court, Santa Fe County. Held: so far as decisions have been made. But it can scarcely be said that the question is conclusively settled as to which doctrine will finally be adopted. It is clear there can be no privity of contract between the telegraph company and the receiver of a message, although in one case in South Carolina the court held otherwise.

Appeal, from a judgment in favor of plaintiff, from the Third Judicial District Court, Grant County. The facts as stated in the opinion of the court. The record proper consists of the declaration and subsequent pleadings, the verdict and judgment. The motion for new trial is not of the record proper. Richardson v. George, 34 Mo. 104, and note. The mere fact that the clerk copies it in the transcript of the record does not make it a part of the record proper.

Appeal, from a decree in favor of defendants, from the Third Judicial District Court, Grant County. The facts are similar to those stated in Chavez v. Luna, Collector, et al., ante, page 183.

Appeal, from a judgment in favor of plaintiff, from the Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court. The plaintiff was bound to prove want of probable cause as one of the conditions precedent to a recovery. Alexander v. Harrison, 38 Mo. 258; Cloon v. Gerry, 79 Mass. 202 (13 Gray, 201); McManus v. Ellis, 52 Tex. 516.

Appeal, from a judgment for plaintiff, from the First Judicial District Court, Santa Fe County. The facts are stated in the opinion of the court. BRIEP ON MOTION POR RE ARGUMENT. ' As to the availability of the objection to the admissibility of proof of the former testimony of an absent witness, see Danforth’s U. S. Digest, 440.

Error, from a decree in favor, of defendants,- to tlie First Judicial District Court, Santa Fe county. The facts are stated in the opinion of the court. In proceedings to review a judgment or decree, the court in which the proceedings are pending sits as a court to examine and review errors of law only. Story’s Eq. PI. [6 Ed.] secs. 403-407; 2 Dan. Ch. Pr., p. 1576, and notes; Brewer v. Bowman, 20 Am. Dec. 158, and note p. 164, with cases there cited; Barton’s Eq., p. 163.

Appeal, from a judgment in favor of defendant, from the Second Judicial District Court, Valencia County. The facts are stated in the opinion of the court. All appeals from inferior tribunals, such as justices of the peace to the district courts, are triable anew in said courts on their merits, as if no trial had been had below. Comp. Laws, N. M., 1884, sec. 1848.

Error, from a judgment in favor of defendants, to the First Judicial Court, Taos County. The facts are stated in the opinion of the court. The probate court had jurisdiction to entertain and allow the petition. By the laws of New Mexico in force at the time of the death of Alfred Bent, the petitioner and his infant brothers were the direct heirs of the ancestor, and succeeded to all his property rights. Comp.

Appeal, from a judgment in favor of plaintiff, from the Second Judicial District Court, Socorro County. The facts are stated in the opinion of the court. The stipulation is not against public policy, and not, therefore, void. 1 Story, Eq.

Error, from a decree in favor of complainants, to the Third Judicial District Court, Grant County. The facts are stated in the opinion of the court.

Error, from a decree in favor of complainants, to the Third Judicial District Court, Grant County. The facts are stated in the opinion of the court. The chattel mortgage is void as against the plain - tiffs in error, because it' was not renewed by filing the affidavit stating the amount due, etc., within the time required by statute. Prince’s Rev. Ed. Laws, N. M. 64.

Appeal, from a decree in favor of complainant, from the Third Judicial District Court, Dona Ana County. The facts are stated in the opinion of the court.

Appeal, from a judgment in favor of plaintiff, from the Third Judicial District Court, Grrant County. The facts are stated in the opinion of the court.

Appeal, from a judgment in favor of plaintiffs, from- the Third Judicial District Court, Dona Ana County. The books admitted in evidence were incompetent. Rev. Stat. D. S., secs. 906, 882. A receipt of the receiver of the land office neither gives right to the possession of lands nor to a patent. It is not final, and is incompetent and insufficient to prove such facts. McFarland v. Culbertson, 2 Nev. 284. The disease must be proved as laid. Lindsay v. Davis, 30 Mo. 406.

The facts are stated in the stipulation hereinafter set out, constituting the entire record in the case, and filed in place thereof. The counsel for defendant, in the court below,, did not resort to the proper remedy, a motion for new trial, but filed a motion in arrest of judgment, and for a discharge of defendant, and thereby waived a motion for new trial. 2 Tidd’s Prac., p. 913; Hall v. Ness, 27 111. 411.

Error, from a decree in favor of complainant, to the Second Judicial District Court, Bernalillo County. Motion to dismiss writ of error. The facts are stated in the opinion of the court.

Error, from a judgment for plaintiff, to the Fourth Judicial District Court, San Miguel County. The facts are stated in the opinion of the court. Only the charges of holding and maintaining the district court are to be paid by the territory. Comp. Laws, sec. 540. The expense of providing a place for the holding of the court, and for the officers and jurors is to be borne by the county in which the court is held. Comp. Laws, secs. 345, 546, 186.

Appeal, from a judgment in favor of plaintiffs, from the Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court. To establish a parol contract in discharge of a. previous contract under seal, requires no other or different evidence than would establish any contract not within the statute of frauds.

Error, from a judgment for defendant, to the First Judicial District Court, Santa Fe County. The facts are stated in the opinion of the court. Where the documents are not, perhaps, technically deeds to real estate, they were competent evidence to go to the jury, as showing the color of title under which Tomas Sena claimed in regard to the possession of the land. 1 Creen 1. Ev., sees. 21, 141, 142; Abb. Tr. Ev., p. 708.

Error, from a judgment in favor of defendant, to the First Judicial District Court, Santa Fe County. The facts are stated in the opinion of the court. When a sheriff levies an execution upon property in which the defendant has no interest, it is his duty to stop all further proceedings under the levy as soon as he ascertains the fact, and he is not liable on his bond for failure to sell the property. State v. Swigart, 22 Ark. 528.

Appeal, from a judgment for plaintiff, from the Third Judicial District Court. The facts are stated in the opinion of the court. If the defendants in this case have lawfully cut the timber from the lands of the United States, they should show it as a matter of defense, bringing themselves clearly within the license of the act of June 3, 1878, and the regulations of August 5, 1866. 15 Opinions of Attorneys General, 191; Gould’s Notes on Rev. Stats.

Appeal, from a judgment in favor of defendant, from the Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court.

■Appeal, from a judgment in favor of plaintiff, from the Third Judicial District Court, Sierra County. The facts are stated in the opinion .of the court. This case should be reversed, because the verdict is against the evidence, and the preponderance of the evidence is in favor of the defendants on every issue. 1 Graham & Waterman on New Trials, p. 367, see. 2190, Comp. Laws, N. M.; Hopkins v. Orr, 124 TOT. S. 510.

<p>Habeas Corpus — Mandamus—Injunction—Jurisdiction oe District Court. — On an application for a writ of habeas corpus, by certain members of the board of county commissioners of Santa Fe county, for release from commitment, for refusal to pay fines assessed against them for contempt of court in refusing to obey a writ of injunction, issued in a certain mandamus proceeding,- restraining them from issuing certificates of election to any other persons than those mentioned in the writ, and from making any record of the result of their canvass of election returns, on the ground of want of jurisdiction of the court over the subject-matter of the proceeding — -Held: Under section 13, chapter 135, Laws, 1889, prescribing the duties of the board of county commissioners, sitting as a canvassing board, and providing that, in case of their failure or refusal to perform those duties, the district judge shall, on the petition of any qualified voter, issue a writ' of mandamus to compel a performance, the district court had jurisdiction of the subject-matter of the mandamus proceeding, and the power to issue a writ of injunction therein in aid thereof. If there were any doubt as to this power in the district court, that doubt would be removed by section 1, chapter 117, Laws, 1889, providing that suits in equity may be begun, injunctions granted * * * in aid of any suit at law * * * which took effect on the same day as did the statute supra. The term “suit at law” is used in its broadest sense, and was intended to authorize the aid of equity in any pending legal proceeding whenever necessary to give a more complete and effectual remedy.</p> <p>to. — Contempt—Nines—Irregularity tn Assessment on. — The fact that the court, in the proceedings for contempt against the petitioners, for refusal to obey the writ of injunction in the mandamus proceedings, assessed several different fines for several distinct offenses in the same proceeding, would not make void the entire punishment. It was a mere irregularity, curable in the court in which the proceeding was had, or by appeal, and not on habeas corpus.</p> <p>to. — Contempt—Jurisdiction In Vacation. — The objection of want of jurisdiction in the court in vacation is not tenable. Under section 1829, Compiled Laws, the courts of the territory are always open, and their jurisdiction is broad enough to include proceedings, for contempt.</p>

<p>Petition for writ of habeas corpus.</p> <p>The facts are stated in the opinion of the court.</p>

Appeal, from a judgment in favor of defendants, from the Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court. The states could not tax national banks as such without authority of act of congress. People v. Weaver, 100 U. S. 548; McCullough v. Maryland, 4 Wheat. 316; ■Osborn v. Bank of U. S. Id. 738; Weston v. City ■Council of Charleston, 2 Pet. 449.

Error, from a decree in favor of complainant, to the Second Judicial District Court, Bernalillo county! The facts are stated in the opinion of the court. .