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nm/11271919.json

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+"{\"id\": \"11271919\", \"name\": \"FRED H. JUNG, Appellant, v. BEN MYER, Appellee\", \"name_abbreviation\": \"Jung v. Myer\", \"decision_date\": \"1902-04-25\", \"docket_number\": \"No. 933\", \"first_page\": \"378\", \"last_page\": 391, \"citations\": \"11 N.M. 378\", \"volume\": \"11\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T22:48:27.559810+00:00\", \"provenance\": \"CAP\", \"judges\": \"Parker,-Mills, McFie and Baker, JJ., concur.\", \"parties\": \"FRED H. JUNG, Appellant, v. BEN MYER, Appellee.\", \"head_matter\": \"[No. 933.\\nApril 25, 1902.]\\nFRED H. JUNG, Appellant, v. BEN MYER, Appellee.\\nSYLLABUS.\\n1. Laws 1901, c. 82, authorizing appeals to the Supreme Court from interlocutory orders affecting substantial rights, is invalid, as being in conflict with the organic act, providing that appeals shall be allowed in all eases \\u201cfrom final decisions of district courts to the Supreme Court, under such regulations as may be prescribed by law.\\u201d\\n2. An order vacating an attachment is not a final decision, within the provision of the organic act authorizing an appeal to the Supreme Court from final decisions of the district court.\\nAppeal from the district court of Bernalillo county, before J. W. Crump acker, Associate Justice.\\nAppeal dismissed.\\nR. W. D. Bryan, for appellant.\\nJurisdiction of the court is a matter of statutory regulation.\\nSection 10 of tbe Organic Act, establishing the Territory of New Mexico; Kearney Code, section 9 on Courts and Judicial Powers.\\nSee also sections 868, 879, 3136, 3137, Compiled Laws, 1897, and subsections 160 and 161 of section 2685, Compiled Laws, 1897.\\nThe jurisdiction of the Supreme Court was greatly enlarged by Act of March 21, 1901.\\nLaws of New Mexico, 1901, p. 159.\\nAn order such as is involved in this case is appeal-able.\\nSherman v. Boehm, 15 Alb. N. C. (N. Y.) 251, 7 N. Y. Civil Proc. 54; Tharin v. Seabrook, 6 S. C. '113; Belesena Coal Min. Co. v. Liberty Dredging Co., 53 N. Y. Sup. 747; Murphy v. Weil, 57 Wis. 1112.\\nSee also Walters v. Starnes, 24 S. E. (N. C.) 713.\\nNiell B. Field for appellee.\\nThe Legislature of New Mexico has attempted to confer upon this court jurisdiction to review the action of the district courts in certain enumerated cases, where the judgments authorized to be reviewed are confessedly not final in character. Such legislation is inconsistent with, if not in direct conflict with the organic act of the Territory.\\nCompiled Laws of New Mexico, 1897, p. 43.\\nThe appellate jurisdiction of this court is derived from the organic act and not from the acts of the Legislature. The appellate jurisdiction prescribed by the organic act precludes the exercise of any other appellate iurisdiction.\\nSyllabus in 7 Wallace 506; Ferris v. Hig-ley, 20 Wallace 375; Harris M'fg. Co. v. Walsh, 2 Dakota 43.\\nLegislation attempting to confer jurisdiction upon the Supreme Court to review judgments not final in character is void.\\nN. P. Irrigation Company v. Canal Co., 46 Pac. (Utah) 824; Eastman v. Gurrey, 46 Pac. 828.\\nIn 1882 the Legislature passed an act which is compiled as section 529 of the Compiled Laws of 1884 as follows: \\u201cThe Supreme Court shall hold two sessions annually at the seat of government, commencing on the first Monday in January and the second Monday in June, and continue until the business on hand is disposed of.\\u201d This act was always ignored because it was inconsistent with the provision of the organic act requiring the holding of only one term annually. The Legislature approved the \\u201cone term\\u201d construction.\\nLaws of New Mexico, 1891, p. 36.\\nAgain in 1899 the Legislature approved the \\u201cone term\\u201d construction by fixing the time for holding the one term on the first Wednesday after the first Monday in January and by providing for adjournments of such term from time to time.\\nLaws of New Mexico, 1899, p. 26.\\nSTATEMENT OF THE CASE.\\nThis is an appeal from an order of the district court of the Second judicial district, denying plaintiff\\u2019s motion to strike the answer of the defendant from the records, and for judgment by default.\", \"word_count\": \"4234\", \"char_count\": \"25182\", \"text\": \"OPINION OF THE COTJET.\\nMcMILLAN, J.\\nIt is urged on behalf of the re\\u00a1-spondent that this court is without jurisdiction to hear the appeal taken herein, as the act of the Legislature authorizing appeals where the judgment appealed from is not final in its character, is inconsistent with if not in direct conflict with the organic act of the Territory.\\n1 The provisions of chapter 82 of the Laws of 1901, under which it is claimed on behalf of appellant that this appeal is authorized, are as follows: \\\"The Supreme Court of the Territory shall have exclusive jurisdiction to review upon appeal or writ of error all judgments, orders and decrees, made or rendered in the district courts in either of the following-cases: (a) Where a final judgment has been rendered in an action commenced in the district court, or a justice of the peace; also to review an interlocutory judgment or order or decree involving the merits of any cause, and necessarily affecting the final judgment, (b) Where an order, judgment or decree has been made or rendered in any action affecting a substantial right, which either 'in effect determines the action, or prevents a final judgment, or discontinues the action, or grants, or refuses a new trial, or determines a statutory provision of the Territory to be .unconstitutional or in conflict with the organic law of the Territory, or determines a demurrer which goes to the substantial right of the case, (c) Where a final order, judgment or decree affecting a substantial right has been made in a special proceeding or upon a summary application in an action after judgment, and any intermediate order, judgment or decree, involving the merits of the action. When an order or Judgment dissolving or sustaining an attachment is rendered in the district court, such order or judgment may be reviewed on appeal or writ of error, taken or sued out by any person aggrieved thereby.\\\"\\nThis act clearly authorizes an appeal from an interlocutory order affecting a substantial right, and unless its. provisions are in conflict with the organic act, the questions presented by the appeal are properly before this court.\\nThe provisions of the organic act limiting the jurisdiction of the Supreme Court upon appeals, in so far as the same are material to the questions herein presented, are as follows:\\n\\\"That the judicial power of said Territory shall be vested in a Supreme Court, district courts, probate courts, and in justices of the peace. . . . The jurisdiction of the several courts herein provided for, both appellate and original, and that of the probate courts and of justices of the peace, shall be as limited by law: Provided . . . That the said Supreme and district courts, respectively, shall possess chancery as well as common-law jurisdiction. . . . Writs of error, bills of. exception, and appeals, shall be allowed in all cases from the final decisions of said district courts to the Supreme Court, under such regulations as may be prescribed by lam, but in no case removed to the Supreme Court, shall trial by jury be allowed in said-court. . . .\\\"\\nThese provisions are limitations on the' appellate jurisdiction of this court, and must he considered in connection with the legislative power and authority granted by the organic act, which are as follows: .\\n\\\"That the legislative power of the Territory, shall extend to all rightful subjects of legislation, consistent with the constitution of the United States and the provisions of this act.\\\"\\nThe language used in the organic act regulating writs of error, hills of exception and appeals, is clear and specific. It provides that they \\\"shall he allowed in all cases from the final decision of said district courts to the Supreme Court, under such regulations as may be prescribed by law.\\\"\\nThe Supreme Court derives its appellate jurisdiction from the organic act, and by the terms of the act itself, it has no appellate jurisdiction except from final decisions of the district courts. It was by the provisions of the organic act that the Supreme Court was brought into existence, and all of its jurisdiction is derived from the organic act and subsequent congressional legislation. Arellano v. Chacon, 1 N. M. 269, in which the court says:\\n\\\"The judicial powers of this Territory are clearly vested and carefully distributed by Congress, in what is termed the organic act. This act declares that the several courts, both appellate and original, and those of the probate and justices of the peace, should have jurisdiction as limited by law. It then immediately proceeds to prescribe by law, limits to justices of the peace, and confining them beyond the power of the Territorial legislature to enlarge, and in very sane sentence vests the Supreme and district courts 'with chancery as Avell as common law jurisdiction.' So plain and complete am endowment of judicial power in the courts of highest dignity and authority in the Territory must be taken as negativing the like jurisdiction in the inferior courts, as also excluding the Legislature from the authority to clothe them with the jurisdiction so affirmatively reposed in the Supreme and district courts.\\\"\\nIt has been urged, not only in the case at bar, but elsewhere, that the words of the organic act, \\\"The jurisdiction of the several courts herein provided for, both appellate- and original, and that of the probate courts, and of justices of the peace, shall he as limited hy law ,\\\" delegates to the territorial Legislature the power to regulate the jurisdiction of the several courts. We can not approve of this construction, for the reason that the organic act, after the words above quoted, further provides that, \\\"The said Supreme Court and district courts, respectively shall possess chancery as well as common law jurisdiction,\\\" and further, \\\"Writs of error, bills of exception, and appeals, shall be allowed in all cases from the final decisions of said district courts to the Supreme Court, under such regulations as may be prescribed by law, but in no cause removed to the Supreme Court shall trial by jury be allowed in said court.\\\"\\nIt will be seen from these quotations from the organic act, that the jurisdiction of the Supreme and district courts has been specifically defined, first that they shall possess chancery and common-law jurisdiction, and that the Supreme Court shall have appellate jurisdiction, and that writs of error, bills of exception, and ap peals shall be allowed in all cases from the final decisions of the district courts to the Supreme Court. It will be observed that the procedure by which writs of error, bills of exception, and appeals, are perfected, is left to the legislative assembly by the use of the words, \\\"under such regulations as may be prescribed by law.\\\" It is only the regulation of procedure that is delegated to the legislative assembly, whereas the words used in connection with the-jurisdiction of the several courts are of an entirely different purport.\\nIn Huntington v. Moore et al., 1 N. M. 471, the court says:\\n\\\"That part of the organic act which provides that appeals shall be allowed 'under such regulations as may be prescribed by law,' is only intended to give to the Legislature the power of prescribing the manner in which appeals may be taken after final judgment or decree is had. This power they appear to have exercised, and have prescribed the manner in which appeals may be taken to the Supreme Court on final judgment or decree.\\\"\\nThe first declaration in the organic act touching the \\u2022question of jurisdiction, is to the effect that \\\"the jurisdiction of the several courts herein provided for, both appellate and original, and that of the probate courts, and of justices of the peace, shall be as limited by law.\\\" Then follow the various specific limitations as to the jurisdiction of the Supreme and district courts; so that we must conclude, upon a fair construction, that the words, \\\"shall be as limited by law,\\\" refer to the subsequent specific provisions touching the jurisdiction of such courts as are set forth in the- organic act itself.\\nIn Archibeque v. Miera, 1 N. M. 160, the court says: \\\"The jurisdiction of these several courts is thus limited by the organic law as to their appellate and original poAvers. It fixes their character; and that portion of the organic act which provides that the jurisdiction of the several courts herein provided for, both appellate and original, and that of the probate courts and of justices of the peace, shall be as limited by law, provided, etc., it does not confer upon the Legislature the power to bestow upon the Supreme Court original jurisdiction, nor appellate powers upon the other courts therein mentioned. It only provides that the jurisdiction of the Supreme Court, with its appellate power, shall be as limited by law.\\\"\\nSome weight and potency must be given to the declaration in the organic act wherein it declares that writs of error, bills of exception and appeals, shall be allowed in all cases from final decisions of the district courts to the Supreme Court. These are words of limita: tion which can not be disregarded, and the use of them in fixing the jurisdiction of the court necessarily implies, according to the well-established rules of constitutional and statutory construction, that every other right excepting those designated is denied.\\n\\\"No niaxim of law is of more general and uniform application than 'exprcssio unius est exclusio aUerius.' This is 'never more applicable than when applied to the interpretation of a statute.'\\n\\\"In a Territory the constitution and laws of the United States and especially the organic act of the Territory itself, stands exactly in the relation a State constitution occupies in a State. All Territorial enactments not consistent with them are null and void.\\\" In matter Attorney-General, 2 N. M. 49.\\nTerritory v. Ortiz, 1 N. M. 5, in which the Territorial Legislature attempted to extend the jurisdiction of the court by the adoption of the provisions of the Kearny code. In this case the court says:\\n\\\"The fact that the legislative assembly continued in force the Kearny code does not affect the matter; for, if the legislative assembly had power to adopt the organic law in the Kearny code, and enforce obedience to its requirements, it wmuld be the virtual assumption of sovereignty, and operate as a repeal of the form of government furnished by Congress for this Territory. It has been repeatedly decided in courts of the highest authority, that an affirmative grant of original jurisdiction implies a negative upon its exercise in any other case.\\\"\\nIn construing constitutional enactments, no power is conferred by implication, except that which is essential to carry delegated power or authority into effect.\\nAlthough the constitution is not a grant of power to the Legislature, but a limitation upon its general powers, which it may exercise where not restrained by constitutional provisions, yet the judiciary can exercise no power not conferred by the constitution. Field v. People, 3 Ill. 79.\\nIt is urged on the part of the respondent that the limitation contained in the organic act is a limitation placed upon the Territorial Legislature, and not a limitation placed upon the appellate jurisdiction of this court. That the Legislature should not have the power -to take away from the people their right of appeal to the Supreme Court from all final decisions of the district court, leaving it at the option of the Territorial Legislature to enlarge the appellate jurisdiction of this court from causes other than final decisions of the district-court, and by other means than by appeal or writ of error.\\nLocal laws can never confer jurisdiction on the courts of the United States; they can only furnish rules to ascertain the rights of parties, and thus assist in the administration of the proper remedies where the jurisdiction is vested by the laws, of the United States. The Steamboat Orleans v. Phoebus, 11 Peters 175.\\nIn North Point C. I. Co. v. Utah and Salt Lake Canal Co., 46 Pac. 824 the court says:\\n\\\"In each the right of appeal is from a final judgment. If the intention was to guaranty the right of appeal from a final judgment, and confer upon the Legislature implied power to authorize appeals in all other cases from the district courts, then the same guaranty with implied powers is also retained, and to be applied to justices' courts as well as the courts in the administration of estates. It would he no answer to this that the Legislature had previously conferred the power in one case and withheld it in the other. If the power exists in the Legislature, the right could be conferred upon justices' courts at any time. It is apparent that such an unfortunate construction or implication was not contemplated nor intended. It would be presuming top much to say that the framers of the constitution were fearful that the Legislature would enact laws preventing appeals from final judgments, and that, therefore, this provision was inserted, giving a guaranty of the right of appeal from such judgments, thus leaving to the Legislature the right to enact laws allowing appeals from interlocutory orders. Especially is this so when we consider the fact that nearly every State in the Union allows appeals from final judgment, and restricts or prohibits appeals from interlocutory orders as being against the policy of the law. The framers of the constitution could not have anticipated that the Legislature would do an unreasonable thing, and thus taire away the right of appeal from a final judgment, when that right has grown to he almost inherent, and yet use words sufficient to authorize it to do that which in most states is considered questionable, and by eminent law writers to be against the policy of the law.\\nIn granting the right of appeal from all final judgments the people intended to grant the right of appeal from all final judgments only. The Supreme Court, being a creature of the constitution, has only such powers as are therein conferred upon it. The only jurisdiction that is conferred by the constitution upon the Supreme Court in appeal cases is appeals from final judgments. There is no express declaration that appeals shall not lie from judgments other than final judgments but the court considers the affirmative declaration, as used in the section, that 'from all final judgments of the district court, there shall be a right of appeal to the Supreme Court/ as manifesting the intent of the framers of the constitution to except from the appellate jurisdiction of the Supreme Court appeals from the district courts, other than appeals from final judgments. This intention and implication is founded on the manifest intent of the framers of the constitution, and upon the general rules of construction that the expression of one thing in the constitution implies the necessary exclusion of things not expressed. We are of the opinion that when the framers of section 9 used the terms, 'from all final judgments of the district court there shall he a right of \\u00a1appeal to the Supreme Court/ they intended to deny the right of appeal to the Supreme Court in all other case's, although no express terms of negation were used.\\\"\\nIt is immaterial whether the above case was commenced while Utah was yet a Territory, and under the provisions of the organic act, or was decided after it had become a State and had adopted a constitution. The principle enunciated therein is the same as the principle involved in the case at bar. Are the limitations in the organic act limitations upon the power of the Legislature, or are the limitations upon the jurisdiction of the Supreme Court? We can arrive at no other conclusion than that it was the intention of Congress, by using the term \\\"final judgments\\\" in the organic act, to limit appeals to the Supreme Court to appeals from final judgments, and by the use of that term it excluded appeals from interlocutory orders with the same force and effect as though such provisions were embodied in the organic act itself.\\nDurousseau v. United States, 10 U. S. (6 Cranch) 307, Chief Justice Marshall says:\\n\\\"The appellate powers of this court are not given by the judicial act. They are given by the constitution. But they are limited and regulated by the judicial act, and bj such otter acts as have been passed on the subject. When the first Legislature of the Union proceeded to carry the third article of the constitution into effect, they must be understood as intending to execute the power they possessed of making exceptions to the appellate jurisdiction of the Supreme Court. They have not, indeed, made these exceptions in express terms. They have not declared, that the appellate power of the court shall not extend to certain cases; but they have described affirmatively its jurisdiction, and this affirmative description had been understood to imply a negative on the exercise of such appellate power as is not comprehended within it.\\\"\\nTo the same effect is Ex parte McCardle, 7 Wall. 506, in which the Chief Justice says:\\n\\\"The principle that the affirmation of appellate jurisdiction implies the negation of all such jurisdiction not affirmed having been thus established, it was an almost necessary consequence that acts of Congress, providing for the exercise of jurisdiction, should come to be spoken of as acts granting jurisdiction, and not as acts making exceptions of the constitutional grant of it.\\\"\\nIn Hornbuckle v. Toombs, 18 Wall. 648, the court says:\\n\\\"From a review of the entire past legislation of Congress on the subject under consideration, our conclusion is that the practice, pleadings, and forms and modes of proceeding of the Territorial courts, as well as their respective jurisdictions, subject, as before said, to a. few express or implied conditions in the organic act itself, were intended to be left to the legislative action of the Territorial assemblies, and to the regulations which might be adopted by the courts themselves.\\\"\\nFrom this last decision it clearly appears that the Supreme Court of the United States recognized the express and implied conditions of the organic act wherein the jurisdiction of this court is limited in the organic act, leaving to the Legislature all questions touching the practice, pleading, form and mode of procedure, and in the establishment of new rights and remedies within their legislative power it may direct in what court they shall be had. Ferris v. Higley, 20 Wall. 375.\\nIn Harris Manufacturing Co. v. Wallace, 2 Dak. 41, Mr. Justice Moody, for the court, says:\\n\\\"This court is the creature of Congress. By the acts of Congress and by the force of those acts only has this court any existence. Its appellate powers and jurisdiction are derived solely from those acts. The law of no other tribunal can confer them. Just so far as Congress has conferred appellate powers and jurisdiction, either by direct enactments or through delegated authority, it possesses them and can exercise them, and it does not possess and cannot exercise other or greater powers. When Congress enacts that this court shall ,have appellate jurisdiction over final decisions of the district courts, the act operates as a negation of such jurisdiction in other cases.\\n\\\"It is true that section 1866 of the.United States Revised Statutes provides that the jurisdiction of the Supreme Court, as well as the district court, both appellate and original, shall be as limited by law; but when construed with section 1869 cannot be held as authority for enlarging the jurisdiction of the Supreme Court in the exercise of its appellate powers beyond the cases provided in section 1869, but must be construed only as authority to limit its jurisdiction Avithin the limitation prescribed by that section.\\n\\\"By what authority, then, can this court hear and determine this appeal from a mere order before final judgment? It is said to be claimed under the authority of the Territorial enactment regulating appeals. My OAvn view of that statute is, that it should be construed as a mere regulation under, and subordinate to, said section 1869, and as providing what orders may be re-vieAved when appealed from in conjunction with the appeal from the final judgment, and after final termina tion of the litigation in the district court; and when so construed, can be sustained. But if it is to be construed as enlargement of the appellate powers and jurisdiction of the Supreme Court to the extent that independent appeals may he taken in cases like the one under consideration, or from mere interlocutory orders and decisions and before final judgment, I have no hesitation in pronouncing it contrary to the provisions of the act of Congress, and therefore in such particular and to that extent a nullity.\\\"\\nA distinction has been urged to the effect that an appeal from an order setting aside or vacating an attachment is not interlocutory in its character, but is final. This distinction is untenable. It is well settled that proceedings with reference to an attachment are in their nature proceedings in abatement, and are not final as to the rights of the parties. Leitensdorfer et al. v. Webb, 20 Howard (61 U. S.) 176.\\nWe are therefore led to the conclusion that chapter 82 of the laws of 1901, in so far as it attempts to extend the appellate jurisdiction of the Supreme Court to the reviewing of questions other than appeals from final judgments, is in conflict with the organic act of the Territory, and therefore void.\\nThere being noTegal authority for the appeal taken herein, it should be dismissed, with costs to be paid by appellant. And it is so ordered.\\nParker,-Mills, McFie and Baker, JJ., concur.\"}"

nm/1217125.json

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+"{\"id\": \"1217125\", \"name\": \"NEW MEXICO DEPARTMENT OF HEALTH, Petitioner-Appellee, v. Fred COMPTON, Respondent-Appellant\", \"name_abbreviation\": \"New Mexico Department of Health v. Compton\", \"decision_date\": \"2000-06-14\", \"docket_number\": \"No. 20,356\", \"first_page\": \"474\", \"last_page\": 480, \"citations\": \"129 N.M. 474\", \"volume\": \"129\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T19:34:58.900530+00:00\", \"provenance\": \"CAP\", \"judges\": \"BUSTAMANTE, J., concurs.\", \"parties\": \"NEW MEXICO DEPARTMENT OF HEALTH, Petitioner-Appellee, v. Fred COMPTON, Respondent-Appellant.\", \"head_matter\": \"10 P.3d 153\\n2000-NMCA-078\\nNEW MEXICO DEPARTMENT OF HEALTH, Petitioner-Appellee, v. Fred COMPTON, Respondent-Appellant.\\nNo. 20,356.\\nCourt of Appeals of New Mexico.\\nJune 14, 2000.\\nCertiorari Granted, No. 26,419, Sept. 5, 2000.\\nBeth W. Schaefer, Assistant General Counsel, New Mexico Department of Health, Santa Fe, NM, for Appellee.\\nSandra L. Gomez, Michael C. Parks, Protection & Advocacy System, Inc., Albuquerque, NM, for Appellant.\", \"word_count\": \"2778\", \"char_count\": \"17506\", \"text\": \"OPINION\\nWECHSLER, Judge.\\n{1} Respondent, Fred Compton, appeals from the district court's orders granting two petitions under the Mental Health and Developmental Disabilities Code (the Code). See NMSA 1978, \\u00a7 43-1-1 to 43-1-25 (1977 as amended through 1999). Respondent argues that the orders should be reversed and vacated because the petitions were not heard by the district court within the statutory deadlines. We affirm.\\nBackground and Facts\\n{2} The relevant facts in this case are undisputed. Respondent was admitted to Las Vegas Medical Center (LVMC) on February 18, 1999, under the provisions of Section 43-1-10, which provide for emergency, involuntary commitments. On February 22, 1999, the Department of Health (Department) filed a Petition for a Thirty Day Commitment for Mental Health Evaluation and Treatment, under the authority of Section 43-l-ll(A), and a Petition for Appointment of a Treatment Guardian for an Adult, under the authority of Section 43-l-15(B). The district court set a hearing on both motions for February 25, 1999, within the seven-day emergency period set forth in Section 43-1-11(A) and within the three-day period set forth in Section 43-l-15(B). On February 25, 1999, however, the district court entered an order continuing the hearing until March 4,1999, because the trial judge was ill.\\n{3} At the hearing on March 4, 1999, Respondent's counsel moved to dismiss the petitions on the basis that Respondent had been more than seven days at LVMC without a hearing, contrary to the statutory requirements. The district court asked Respondent's attorney to explain what remedy Respondent had if grounds for commitment existed, and Respondent's counsel replied, \\\"That he doesn't receive the treatment which he, in accordance with the doctor's testimony, requires.\\\" The court granted both of the Department's petitions. LVMC discharged Defendant on March 25, 1999. This appeal followed.\\nDiscussion\\n{4} Respondent raises three issues on appeal: (1) Respondent's rights were violated because he did not receive a hearing within seven days of his involuntary commitment, (2) Respondent's rights were violated because he did not receive a hearing on the appointment of a treatment guardian within three days of service upon Respondent, and (3) this case is not moot, even though Respondent has since been discharged from LVMC.\\n{5} We review whether the statutory requirements of Sections 43-l-ll(A) and 43-1-15(B) are mandatory as a question of law and determine whether the district court correctly applied the law to the facts of this case. See Romero Excavation & Trucking, Inc. v. Bradley Constr., Inc., 1996-NMSC-010, \\u00b6 5, 121 N.M. 471, 913 P.2d 659.\\n{6} Section 43-1-10 of the Code provides that a peace officer may detain a person for an emergency mental health evaluation under certain specific circumstances. However, when a person is involuntarily admitted to an evaluation facility under Section 43-1-10, Section 43-l-ll(A) states that the person \\\"has the right to a hearing within seven days of admission unless waived after consultation with counsel.\\\" Section 43-l-ll(A) also states that if the evaluation facility \\\"decides to seek commitment of the client for evaluation and treatment\\\" for a further thirty days, a petition seeking such commitment \\\"shall be filed with the court within five days of admission.\\\" Additionally, Section 43-l-15(B) requires that when a mental health professional petitions the court for the appointment of a treatment guardian, \\\"[a] hearing on the petition shall be held within three court days.\\\"\\n{7} LVMC released Respondent on March 25, 1999, thus potentially mooting this appeal. Respondent, however, argues that this Court should reach the merits of this case and that this case is not moot because Respondent's claims \\\"are capable of repetition, raise questions of public importance, and would otherwise evade appellate review\\\" and thus fall within an exception to the mootness doctrine. In re Bunnell, 100 N.M. 242, 244, 668 P.2d 1119, 1121 (Ct.App.1983). The Department does not challenge this position. Therefore, this Court will address the issues presented on their merits. See id.\\n{8} The parties do not dispute that the court continued the hearing on both petitions, which was timely scheduled for February 25, 1999, because the district court judge assigned to hear the motions was ill. The court reset the hearing for March 4, 1999, fourteen days after Respondent's admission to LVMC and seven days after the original hearing date. The questions before this Court, therefore, are (1) whether the statutory hearing deadlines are mandatory and (2) whether a violation of the hearing deadline gives rise to a presumption of prejudice and constitutes reversible error.\\nThe Statutory Hearing Deadlines are Mandatory\\n{9} Section 43-l-ll(A) states that \\\"[ejvery adult client involuntarily admitted to an evaluation facility\\\" in an emergency \\\"has the right to a hearing within seven days of admission unless waived after consultation with counsel.\\\" Additionally, if the Department petitions the district court to appoint a treatment guardian for that client, Section 43-l-15(B) states that \\\"[a] hearing on the petition shall be held within three court days\\\" after the petition is served on the client and the client's attorney.\\n{10} Respondent argues that the Code creates specific statutory rights and that those rights are to be strictly construed and strictly enforced. See State v. Sanchez, 80 N.M. 438, 440, 457 P.2d 370, 372 (1969) (stating commitment proceedings \\\"are required to be in strict compliance with the statutory requirements\\\"). Our Supreme Court has emphasized that \\\"[i]f there is any class of cases which should be conducted with the utmost care to observe all of the requirements of the statute, it is those cases conducted for the purpose of determining the sanity of a citizen.\\\" Id. In addition, in Bunnell, 100 N.M. at 244-45, 668 P.2d at 1121-22, this Court recognized both that \\\"the State must schedule a hearing [on a petition for a thirty-day commitment] within seven days\\\" and that \\\"[t]he statute does not provide for postponement.\\\" While this Court ruled in Bunnell that a \\\"short continuance\\\" should be permitted \\\"when counsel establishes that he has not had sufficient time to prepare his client's case,\\\" that ruling was based on protecting the client's rights. Id. at 245, 668 P.2d at 1122.\\n{11} Respondent argues that the language of Section 43-l-ll(A) and Section 43-l-15(B) is clear and unambiguous. Respondent correctly notes that when the language of a statute is clear and unambiguous, it must be given effect by the courts. See V.P. Clarence Co. v. Colgate, 115 N.M. 471, 473, 853 P.2d 722, 724 (1993). Furthermore, Section 43-l-15(B) uses the word \\\"shall\\\" in relation to the timeliness of the hearing. Generally, the \\\"use of the word 'shall' . imposes a mandatory requirement.\\\" Redman v. Board of Regents, 102 N.M. 234, 238, 693 P.2d 1266, 1270 (Ct.App.1984). We therefore agree that, based on the plain language of the statutes, the statutory hearing deadlines set forth in the Code are mandatory.\\nThe Effect of the Violation of the Mandatory Timeliness Requirement\\n{12} Because we hold that the statutory hearing deadlines are mandatory, we next address the question of whether a violation of those deadlines requires dismissal of the petitions and thus reversal of the district court's orders. To answer whether dismissal is appropriate, we must determine whether the mandatory timeliness requirement is jurisdictional. See Stephens v. State, Transp. Dep't, Motor Vehicle Div., 106 N.M. 198, 200, 740 P.2d 1182, 1184 (Ct.App.1987) (\\\"[N]ot all mandatory [statutory] requirements are jurisdictional.\\\"). If the statutory requirement is jurisdictional, outright dismissal is the proper remedy because the court is effectively divested of jurisdiction. See id. at 201, 740 P.2d at 1185 (remanding for dismissal of driver's license revocation proceedings due to jurisdictional defect). If, however, the statutory requirement is mandatory but not jurisdictional, the proper analysis for dismissal is whether the delay prejudiced Respondent. See State v. Budau, 86 N.M. 21, 23, 518 P.2d 1225, 1227 (Ct.App.1973) (applying prejudice analysis to delay in arraignment); cf. Redman, 102 N.M. at 239, 693 P.2d at 1271 (holding failure to commence and complete administrative hearing within statutory deadline to be reversible error in the absence of waiver or good cause).\\n1. Jurisdictional Requirement\\n{13} In New Mexico, the failure to comply with mandatory statutory requirements appears to raise a bar to jurisdiction when the requirement has been essential to the proper operation of the statute. See State v. Gardner, 1998-NMCA-160, \\u00b6 9, 14-15, 126 N.M. 125, 967 P.2d 465 (holding that statutory framework required strict compliance with regulations governing blood-alcohol testing and that results of tests not performed in accordance with regulations were not admissible in evidence).\\n{14} In Stephens, the Motor Vehicle Code allowed the Motor Vehicle Division to revoke a driver's license without a hearing upon the Motor Vehicle Division's receipt of a sworn statement by a police officer. See Stephens, 106 N.M. at 199, 740 P.2d at 1183. The Motor Vehicle Code required the officer's statement to be verified under penalty of perjury, while showing that to the officer's knowledge, the driver had been arrested for driving while intoxicated and test results demonstrated that the driver's blood alcohol level exceeded the legal limit. See id When the police officer in Stephens failed to notarize the statement, this Court held that because the Division had the authority to revoke a license without a hearing, the sworn statement requirement was an \\\"initial proof requirement\\\" that functioned as a \\\"threshold or prerequisite to the agency's right to proceed.\\\" Id. at 201, 740 P.2d at 1185. Because the statutory requirement affected the Division's ability to proceed with the revocation, the failure to comply with the statutory requirement was jurisdictional. See id.\\n{15} In this case, the mandatory statutory requirement that a hearing be held within either seven days for a thirty-day commitment or three days to appoint a treatment guardian does not affect the essential power of the district court to adjudicate the issue before it. See Taylor v. Department of Transp., 260 N.W.2d 521, 523 (Iowa 1977) (\\\"If the duty is not essential to accomplishing the principal purpose of the statute . a violation will not invalidate subsequent proceedings unless prejudice is shown.\\\"). The requirement is not a jurisdictional \\\"threshold or prerequisite\\\" to the court's power to hear the merits of Respondent's commitment. Stephens, 106 N.M. at 201, 740 P.2d at 1185. Our Supreme Court has explained: \\\" 'The word 'jurisdiction' is a term of large and comprehensive import. It includes jurisdiction over the subject matter, over the parties, and power or authority to decide the particular matters presented.'\\\" Grace v. Oil Conservation Comm'n, 87 N.M. 205, 208, 531 P.2d 939, 942 (1975) (quoting Elwess v. Elwess, 73 N.M. 400, 404, 389 P.2d 7, 9 (1964)). A court's lack of jurisdiction \\\"means an entire lack of power to hear or determine the case and the absence of authority over the subject matter or the parties.\\\" Grace, 87 N.M. at 208, 531 P.2d at 942.\\n{16} Significantly, the Code provides that the seven-day hearing can be waived. See \\u00a7 43-l-ll(A). In Redman, this Court stated in reference to the timely hearing requirement for a de novo hearing in an administrative agency \\\"that the legislature did not intend [by providing a provision for a timely hearing] a jurisdictional requirement in the sense that the right . could not be waived.\\\" Redman, 102 N.M. at 239, 693 P.2d at 1271. This statement implies that a mandatory statutory requirement that is waiveable is not necessarily jurisdictional. The fact that the right to a timely hearing under Section 43-1-11(A) is waiveable is persuasive evidence \\\"that the legislature did not intend a jurisdictional requirement in the sense that the right to a timely hearing could not be waived.\\\" Redman, 102 N.M. at 239, 693 P.2d at 1271.\\n{17} Respondent correctly notes that he has a liberty interest at stake. It is clear that Respondent has an \\\"interest in being free from involuntary commitment as a mental patient.\\\" Garcia v. Las Vegas Med. Ctr., 112 N.M. 441, 445, 816 P.2d 510, 514 (Ct.App.1991). This liberty interest can be outweighed by competing interests only under specified conditions. See id; \\u00a7 43-1-11(C). A citizen cannot be committed unless the conditions in Section 43-1-11(0 are met. Section 43-1-11(0), therefore, represents the operative and substantive portion of the statute which grants Respondent the right to be free from commitment in the absence of the listed conditions. See Garcia, 112 N.M. at 446, 816 P.2d at 515 (describing the portion of the Code which enumerates the proper conditions for commitment as the substantive portion of the statute).\\n{18} Importantly, the conditions in Section 43-1-11(0) are not at issue in this case. Respondent does not challenge the grounds for his commitment and, therefore, does not challenge the substantive and operative provisions of the Code that allow infringement upon his liberty interest under particular circumstances. The fact that the substantive commitment provisions are not at issue supports the conclusion that the statute's timeliness requirements are not jurisdictional, but are instead \\\"designed to provide order and promptness . and [are] not of the essence of the thing to be done.\\\" Stephens, 106 N.M. at 200, 740 P.2d at 1184.\\n{19} We acknowledge that other states are split on the issue of whether a hearing following an involuntary commitment is jurisdictional. Compare Chatman v. State, 336 Ark. 323, 985 S.W.2d 718, 722 (1999) (holding that failure to abide by statutory deadlines for probable cause hearing in involuntary commitment proceeding deprived successive court of further jurisdiction), supplemented on denial of rehearing, 336 Ark. 323, 991 S.W.2d 534 (1999), and In re Elkow, 167 Ill.App.3d 187, 118 Ill.Dec. 222, 521 N.E.2d 290, 294 (1988) (holding that any non-compliance with a statutory procedure for involuntary admission renders judgment in ease \\\"erroneous and of no effect\\\"), and State ex rel. Lockman v. Gerhardstein, 107 Wis.2d 325, 320 N.W.2d 27, 29 (Wis.App.1982) (holding that failure to hold hearing within mandatory fourteen days deprived court of jurisdiction) with People in Interest of Lynch, 783 P.2d 848, 851-52 (Colo.1989) (en banc) (holding that failure to hold hearing within statutory ten days did not deprive the court of jurisdiction). But because New Mexico law indicates that hearing deadlines are not jurisdictional when they are designed to provide order and promptness, we believe that the mandatory hearing requirements in the Code are not jurisdictional. We consider the Code's hearing provisions to be procedural requirements, the purpose of which is to provide order and promptness. As a consequence, we find it necessary to review whether the failure to comply with the hearing deadline prejudiced Respondent.\\n2. Prejudice\\n{20} When we review the facts of this case under a prejudice analysis, we emphasize that Respondent should have been released from LVMC on February 25, 1999, when he did not receive a hearing. However, Respondent was not prejudiced as a result of his additional seven-day detention. At the time of his appeal, Respondent had already been released from LVMC and was kept there no longer than he would have been had his hearing been timely. Respondent does not allege, and there is nothing in the record indicating, that Respondent would not have been committed for thirty days had his hearing been held in a timely manner. Also, because there is no indication in the record that Respondent sought to be released on February 25, 1999, or objected to the continuance of his seven-day hearing until the hearing was held seven days later, the district court was unable to grant him dismissal as a remedy. In addition, because the failure to grant a timely hearing did not deprive the district court of jurisdiction, the court had jurisdiction to order both a thirty-day commitment and a treatment guardian, based on the evidence before it.\\nConclusion\\n{21} Because Respondent suffered no prejudice as a result of the statutory violation, we affirm the orders of the district court.\\n{22} IT IS SO ORDERED.\\nBUSTAMANTE, J., concurs.\\nARMIJO, J., specially concurring.\"}"

nm/1224664.json

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+"{\"id\": \"1224664\", \"name\": \"SYSTEMS TECHNOLOGY, INC., d/b/a Enchanted Log Homes, Plaintiff-Appellant, v. Brian E. HALL and Stacy L. Knutson-Hall, husband and wife, M & T Mortgage Corporation, a foreign corporation, Defendants-Appellees\", \"name_abbreviation\": \"Systems Technology, Inc. v. Hall\", \"decision_date\": \"2004-09-30\", \"docket_number\": \"No. 24,090\", \"first_page\": \"548\", \"last_page\": 552, \"citations\": \"136 N.M. 548\", \"volume\": \"136\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T18:00:59.468070+00:00\", \"provenance\": \"CAP\", \"judges\": \"WE CONCUR: MICHAEL D. BUSTAMANTE and IRA ROBINSON, Judges.\", \"parties\": \"SYSTEMS TECHNOLOGY, INC., d/b/a Enchanted Log Homes, Plaintiff-Appellant, v. Brian E. HALL and Stacy L. Knutson-Hall, husband and wife, M & T Mortgage Corporation, a foreign corporation, Defendants-Appellees.\", \"head_matter\": \"2004-NMCA-130\\n102 P.3d 107\\nSYSTEMS TECHNOLOGY, INC., d/b/a Enchanted Log Homes, Plaintiff-Appellant, v. Brian E. HALL and Stacy L. Knutson-Hall, husband and wife, M & T Mortgage Corporation, a foreign corporation, Defendants-Appellees.\\nNo. 24,090.\\nCourt of Appeals of New Mexico.\\nSept. 30, 2004.\\nJoey B. Wright, Martin E. Threet, Martin E. Threet & Associates, Albuquerque, NM, for Appellant.\\nMark A. Glenn, Moses, Dunn, Farmer & Tuthill, P.C., Albuquerque, NM, for Appellees.\", \"word_count\": \"2095\", \"char_count\": \"12508\", \"text\": \"OPINION\\nFRY, Judge.\\n{1} Plaintiff Systems Technology, Inc. (STI) appeals an order requiring STI to participate in an existing arbitration of a dispute with Bryan E. Hall and Stacey L. KnutsonHall (the Halls). STI and the Halls disagree \\\" about whether another party, Arlin Pennington, is also bound by the contract that contains the arbitration clause. The district court referred part of the dispute to the arbitrator, including the issue of the identity of the parties to the arbitration agreement.\\n{2} The issues on appeal primarily concern the interpretation of the arbitration agreement. In the course of analyzing these issues, this Court questioned whether the order appealed from is a final order. See Khalsa v. Levinson, 1998-NMCA-110, \\u00b6 12, 125 N.M. 680, 964 P.2d 844 (explaining that whether an order is final \\\"is a jurisdictional question that an appellate court is required to raise on its own motion\\\"). We instructed the parties to file briefs addressing this concern, but only the Halls filed a brief. Although STI asked for and was granted an extension of time within which to file its brief, our records show that STI never filed a brief.\\n{3} We conclude the order appealed from is not a final order. We are unable to determine whether the district court intended to certify its order for interlocutory appeal, or to certify it as a final judgment pursuant to Rule 1-054(B)(1) NMRA. Whatever the court's intention, we conclude that (1) if the court intended to certify the order for interlocutory appeal, STI's application for leave to file such an appeal was untimely; and (2) if the court intended certification under Rule 1-054(B)(1), it abused its discretion. We therefore dismiss the appeal.\\nBACKGROUND\\n{4} This controversy stems from a purchase and sale agreement for the construction of a log cabin home on a parcel of land belonging to the Halls. Litigation began when \\\"Systems Technology Inc., d/b/a Enchanted Log Homes\\\" filed a complaint for foreclosure of a mechanic's lien on the home. STI's complaint averred that it had completed construction of the log cabin, and that the Halls refused to pay the balance due under the agreement. STI's complaint also named M & T Mortgage Corporation (M & T) as a defendant and sought a determination that its lien had priority over M & T's mortgage on the home.\\n{5} In response to the complaint, the Halls moved to dismiss the foreclosure action on the ground that STI did not timely request arbitration of the dispute as required by the purchase and sales agreement. The agreement's arbitration clause provided that \\\"[a]ny controversy or claim arising our [sic] of or related to this contract, or the breach thereof, shall be settled by arbitration\\\" and also that the \\\"[cjlaimant must initiate the De mand for Arbitration within fifteen (15) calendar days of the date the dispute arises.\\\"\\n{6} The district court denied the motion to dismiss, ordered the Halls to answer the complaint, and also directed the Halls to submit an arbitration demand for any counterclaims they intended to pursue against STI. In January 2003, the Halls submitted a demand for arbitration. The demand for arbitration is not part of the record on appeal; however, the parties appear to agree that although STI was the named party that initiated the foreclosure proceeding against the Halls in the district court, the Halls named \\\"Arlin M. Pennington d/b/a Enchanted Log Homes\\\" in their demand for arbitration and statement of counterclaims. There is no order in the record referring the matter to arbitration.\\n{7} In May 2003, STI filed a motion to stay arbitration. In the motion, STI also sought a determination of who is a proper pai'ty to the lawsuit. The Halls' response to that motion set out their contention that STI is \\\"a shell corporation with insufficient assets to satisfy any judgment the Halls might obtain.\\\" According to the Halls, they sought to arbitrate claims against Pennington because \\\"that is the party with whom the Halls believe they contracted.\\\"\\n{8} On June 13, 2003, the district court entered the order from which STI has tried to appeal. The order is entitled \\\"Order Denying Plaintiffs Motion to Stay Arbitration and Compelling Arbitration,\\\" but the body of the order does not say anything about compelling arbitration; it simply states that STI's motion to stay arbitration should be denied and STI should be added as a respondent to the AAA arbitration involving Hall v. Pennington d/b/a Enchanted Log Homes. The order also contains certification language that we discuss in more detail below.\\n{9} STI immediately filed a notice of appeal from the order. Seventeen days later, STI filed an application for interlocutory appeal in this Court as an \\\"alternative\\\" to its notice of appeal. We denied the application and STI filed a motion to reconsider, to which it attached an August 13, 2003 letter from the district court to the parties indicating that the district court was under the impression its June 13, 2003 order was a final order. Shortly thereafter, this Court assigned this case to the general calendar and the parties filed their briefs.\\nDISCUSSION\\n{10} The June 13, 2003 order from which STI appeals contains ambiguous language apparently attempting to permit an immediate appeal. On the one hand, the order states that \\\"this matter involves a controlling question of law as to which there is substantial ground for difference of opinion, [and] that an immediate appeal from this Order may materially advance the ultimate termination of this litigation,\\\" which is the language required to certify an order for interlocutory appeal. NMSA 1978, \\u00a7 39-3-4(A) (1999). On the other hand, the order also states \\\"there is no just reason for delay of the entry of this Order,\\\" which is the language certifying an order for immediate appeal as of right under Rule 1-054(B)(1). But see Khalsa, 1998-NMCA-110, \\u00b6 18, 125 N.M. 680, 964 P.2d 844 (observing that courts have generally interpreted Rule 1 \\u2014 054(C)(1) (since renumbered as Rule 1 \\u2014 054(B)(1)) \\\"to require both an express determination that there is no just reason for delay and an express direction for entry of judgment\\\" (emphasis added)). We first address the finality of the order in question and we then consider in turn the effect of each type of certification.\\nFinality of the June 13, 2003 Order\\n{11} \\\"An order is not considered final unless all issues of law and fact have been determined and the case disposed of by the trial court to the fullest extent possible.\\\" In re Estate of Griego, 2000-NMCA-022, \\u00b6 13, 128 N.M. 676, 997 P.2d 150. Here it appears that the hierarchy of liens as between STI and M & T was not referred to arbitration, and therefore it remained for the district court to decide. As the Halls point out in their supplemental brief, this issue cannot be determined until the arbitration has resolved several preliminary matters, including whether there was an agreement between the Halls and STI, and whether STI has a valid mechanics lien.\\n{12} In addition, the parties' actions following entry of the June 13, 2003 order suggest that they viewed the order as non-final. For example, on June 13, 2003, the same day as the order denying the motion to stay arbitration, the district court granted the Halls' motion to extend a discovery deadline and to vacate a trial setting. On June 23, 2003, the Halls filed a motion for summary judgment on Plaintiffs foreclosure complaint. All of this activity suggests that the district court and the parties believed there were issues that remained for the district court to decide.\\n{13} Although we do not have the benefit of a supplemental brief from STI, it appears STI would rely on the August 13, 2003 letter from the district judge that STI attached to a pleading filed in this Court. In that letter the district judge stated, \\\"In light of the fact that I believe I ordered the whole case to arbitration when STI was added to the arbitration order, I believe the direct appeal to the Court of Appeals has divested me of jurisdiction to proceed.\\\" This letter is inconsistent with the June 13, 2003 order, which included language consistent with an attempt to certify a non-final order for appeal. In addition, the letter is not in the record filed in this Court. See State v. Reynolds, 111 N.M. 263, 267, 804 P.2d 1082, 1086 (1990) (\\\"Matters outside the record present no issue for review.\\\"). Therefore, because we cannot rely on the August 13, 2003 letter, and because there appear to be substantive issues as yet undecided by the district court, we conclude that the June 13, 2003 order was not final for purposes of appeal. We now turn to a consideration of the district court's attempts to certify the order for appeal.\\nSTI's Application for Interlocutory Appeal Was Untimely\\n{14} When a district court certifies an order for interlocutory appeal, the appealing party must seek permission from the appellate court for leave to file an appeal by filing an application within fifteen days of entry of the order in district court. Rule 12-203(A) NMRA. Assuming the district court intended to certify its order for interlocutory appeal, STI did not file an application for interlocutory appeal in this Court until June 30, 2003, seventeen days after the filing of the district court's order. \\\"Neither the statute nor rules authorize this court to entertain late applications for interlocutory appeals or extensions of time for filing late applications.\\\" Candelaria v. Middle Rio Grande Conservancy Dist., 107 N.M. 579, 581, 761 P.2d 457, 459 (Ct.App.1988). Moreover, this Court denied STI's application on July 30. We therefore conclude that STI's attempt to perfect an interlocutory appeal was unavailing.\\nThe District Court Abused Its Discretion In Certifying the Order Under Rule 1-054(B)(1)\\n{15} If the district court properly certified its June 13, 2003 order pursuant to Rule 1 \\u2014 054(B)(1), then STI's notice of appeal filed on the same day was timely. See Rule 12-201 NMRA (stating that notice of appeal must be filed within thirty days of the order appealed from). Rule 1 \\u2014 054(B)(1) provides that \\\"when more than one claim for relief is presented in an action, . the court may enter a final judgment as to one or more but fewer than all of the claims only upon an express determination that there is no just reason for delay.\\\" We review a certification under this rule for abuse of discretion. Khalsa, 1998-NMCA-110, \\u00b620, 125 N.M. 680, 964 P.2d 844. A court abuses its discretion \\\"when the issues decided by the judgment are intertwined, legally or factually, with the issues not yet resolved, or when resolution of the remaining issues may alter or revise the judgment previously entered.\\\" Id.\\n{16} Here the issues referred to arbitration \\u2014 which, according to the Halls, include (1) whether there was an agreement between the Halls and STI, (2) whether STI was properly licensed, (3) whether STI has a valid mechanics lien, (4) the amount of any lien, and (5) whether STI is entitled to foreclose its lien \\u2014 are intertwined with the issue remaining in the district court, which is the priority of M & T's mortgage. For example, if the arbitrator concludes that STI has a valid lien subject to foreclosure, then the district court will have to determine, as be tween STI and M & T, whose lien has priority. Thus, if we were to decide the issues raised in the present appeal, we may well have to consider a second appeal when the arbitration is completed and the district court rules on the pending issue before it. In light of our strong policy disfavoring piecemeal appeals, Valley Improvement Association v. Hartford Accident & Indemnity Co., 116 N.M. 426, 429, 863 P.2d 1047, 1050 (1993), we hold the district court abused its discretion in certifying its June 13, 2003 order under Rule 1-054(B)(1).\\nCONCLUSION\\n{17} Having determined that the June 13, 2003 order is not a final, appealable order, we hereby dismiss this appeal.\\n{18} IT IS SO ORDERED.\\nWE CONCUR: MICHAEL D. BUSTAMANTE and IRA ROBINSON, Judges.\"}"

nm/12568714.json

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+"{\"id\": \"12568714\", \"name\": \"STATE of New Mexico, Plaintiff-Appellee, v. Jeffrey ASLIN, Defendant-Appellant.\", \"name_abbreviation\": \"State v. Aslin\", \"decision_date\": \"2018-02-28\", \"docket_number\": \"NO. A-1-CA-35471\", \"first_page\": \"843\", \"last_page\": 849, \"citations\": \"421 P.3d 843\", \"volume\": \"421\", \"reporter\": \"Pacific Reporter 3d\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-27T21:03:58.169661+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"STATE of New Mexico, Plaintiff-Appellee,\\nv.\\nJeffrey ASLIN, Defendant-Appellant.\", \"head_matter\": \"STATE of New Mexico, Plaintiff-Appellee,\\nv.\\nJeffrey ASLIN, Defendant-Appellant.\\nNO. A-1-CA-35471\\nCourt of Appeals of New Mexico.\\nFiling Date: February 28, 2018\\nCertiorari Granted, June 25, 2018, No. S-1-SC-36999\\nHector H. Balderas, Attorney General, Marko D. Hananel, Assistant Attorney General, Santa Fe, NM, for Appellee.\\nBennett J. Baur, Chief Public Defender, C. David Henderson, Appellate Defender, MJ Edge, Assistant Appellate Defender, Santa Fe, NM, for Appellant.\", \"word_count\": \"2776\", \"char_count\": \"17774\", \"text\": \"VANZI, Chief Judge.\\n{1} Defendant Jeffrey Aslin raises two issues on appeal challenging the district court's decision revoking his probation. First, he argues that there was insufficient evidence of willfulness to support the finding that he violated probation. Second, he argues that the district court abused its discretion in ruling that the violation was not a \\\"technical violation\\\" under the First Judicial District's technical violation program (TVP). We affirm on the first issue and reverse and remand on the second.\\nBACKGROUND\\n{2} In November 2013, Defendant was charged with trafficking of a controlled substance (methamphetamine), conspiracy to commit trafficking of a controlled substance, and possession of drug paraphernalia. Defendant subsequently pleaded guilty to one count of trafficking for which the district court imposed a suspended sentence of nine years imprisonment and a three-year term of probation. In September 2014, a month after entering his plea, Defendant signed an order of probation that, among other things, listed the conditions of Defendant's release and his understanding of them. Of particular relevance, condition five of the probation order required Defendant to \\\"follow all orders and instructions of [his p]robation . [o]fficer including actively participating in and successfully completing any . treatment program . as deemed appropriate by the [p]robation . [o]fficer.\\\"\\n{3} Defendant admitted to violating his probation on December 15, 2014, after he tested positive for alcohol. The district court reinstated him to probation and Defendant opted into the TVP. As we explain in greater detail below, the TVP in effect at the time, was a program established at the First Judicial District Court for sanctioning adult probationers for \\\"technical violations of their probation[.]\\\" The program provided progressive discipline, including days in jail, for certain \\\"technical violations\\\" up to and including removal from the TVP after a fourth violation.\\n{4} Defendant tested positive for methamphetamine twice while under the TVP and received jail sanctions of three and seven days, respectively. In October 2015, two months after his second sanction, Defendant was arrested and charged with possession of a stolen motor vehicle and altering or changing engine or other numbers. Defendant's probation officer, Mary Ann Sarmiento, filed a probation violation report alleging that Defendant had committed new criminal offenses and that he had failed to enter a drug treatment program.\\n{5} The district court held an evidentiary hearing on November 13, 2015, at which two witnesses testified. New Mexico State Police Officer Jessie Whittaker testified regarding the new criminal offenses, and Sarmiento testified regarding the probation violations. Sarmiento stated that she instructed Defendant \\\"multiple times\\\" that he had to find and complete an outpatient drug treatment program \\\"as soon as possible\\\" before Community Corrections would accept him. Defendant told Sarmiento that he would pursue treatment through the Los Alamos Family Council (LAFC), but Sarmiento later learned that LAFC would not be able to provide treatment for him. On September 10, 2015, Sarmiento advised Defendant that he could not get treatment from LAFC and provided him with alternatives, including Presbyterian Medical Services and Hoy Recovery, both located in Espa\\u00f1ola, New Mexico. Defendant never enrolled or participated in those programs or any other outpatient drug treatment program between the time of his conversation with Sarmiento on September 10th and his arrest on October 6th.\\n{6} At the conclusion of the hearing, the district court found that the State had not proven a violation based on new charges;\\nhowever, the court found that Defendant had failed to \\\"enter into, participate, and successfully complete drug treatment\\\" in violation of his probation agreement. The district court rejected Defendant's argument that the infraction was a technical violation stating that \\\"failing to find a program and enter is not the same thing as testing positive. It is more than a mere technical violation.\\\" The court revoked Defendant's probation and imposed a sentence of time served, plus two years, seven months, and seven days in prison, to be followed by four years, eight months, and twenty-seven days on probation. This appeal followed.\\nDISCUSSION\\n{7} Defendant makes two arguments on appeal. First, he argues that there was insufficient evidence to support the district court's finding that he violated probation. In particular, he contends that the evidence presented at the evidentiary hearing did not prove that he \\\"willfully avoided treatment.\\\" Second, Defendant argues that his failure to enter and complete an outpatient drug treatment program was a technical violation that should have been sanctioned in accordance with the TVP, and the district court abused its discretion when it revoked his probation. Although we conclude that the district court did not err in finding that Defendant's failure to enter and complete treatment constituted a probation violation, we agree that Defendant should have been sentenced under the TVP for a third technical violation.\\n{8} We review the district court's decision to revoke probation under an abuse of discretion standard. State v. Leon , 2013-NMCA-011, \\u00b6 36, 292 P.3d 493. The state \\\"bears the burden of establishing a probation violation with a reasonable certainty.\\\" Id. Moreover, \\\"[t]o establish a violation of a probation agreement, the obligation is on the [s]tate to prove willful conduct on the part of the probationer so as to satisfy the applicable burden of proof.\\\" In re Bruno R. , 2003-NMCA-057, \\u00b6 11, 133 N.M. 566, 66 P.3d 339.\\n{9} We pause to address the State's request for clarification of the law governing the willfulness analysis in probation revocation hearings. Citing to a plethora of mostly unpublished opinions, the State contends that our case law \\\"spans several decades and while not contradictory, is at times inconsistent.\\\" Although we see no consequential split or inconsistency in our authority, we nevertheless reiterate that, \\\"[o]nce the state offers proof of a breach of a material condition of probation, the defendant must come forward with evidence to excuse non-compliance.\\\" Leon , 2013-NMCA-011, \\u00b6 36, 292 P.3d 493 (internal quotation marks and citation omitted). Thus, while the burden of proving a willful violation always remains on the state, after the state presents a prima facie case of a violation, the burden shifts to the defendant to come forward with evidence that the failure to comply was through no fault of his own. State v. Martinez , 1989-NMCA-036, \\u00b6 8, 108 N.M. 604, 775 P.2d 1321 ; see also State v. Parsons , 1986-NMCA-027, \\u00b6 25, 104 N.M. 123, 717 P.2d 99 (noting that it was the state's burden to prove that the defendant violated probation by not paying probation fees and costs, and once the state did so, it was the defendant's responsibility to demonstrate that non-compliance was not willful). As we explained in Leon , there is no shifting of the burden of proof, but a shifting of the burden of going forward with evidence to meet or rebut a presumption that has been established by the evidence. 2013-NMCA-011, \\u00b6 36, 292 P.3d 493. In other words, once the state establishes to a reasonable certainty that the defendant violated probation, a reasonable inference arises that the defendant did so willfully, and it is then the defendant's burden to show that failure to comply was either not willful or that he or she had a lawful excuse. See id. \\u00b6 36, 39 (noting that the defendant did not present any evidence to rebut the reasonable inference that he willfully violated his probation); see also In re Bruno R. , 2003-NMCA-057, \\u00b6 9, 133 N.M. 566, 66 P.3d 339 (stating that we indulge all reasonable inferences to uphold a finding that there was sufficient evidence of a probation violation). Having reiterated the law, we now turn to the issues in this case. We begin with whether Defendant's conduct constituted a \\\"willful violation.\\\"\\n{10} At the November 13, 2015 evidentiary hearing, the State presented evidence that Defendant had failed to enter into, participate in, and complete outpatient drug treatment. The probation order-which Defendant acknowledged and signed-required him, among other things, to follow his probation officer's orders, including \\\"actively participating in and successfully completing\\\" a drug treatment program. Defendant's probation officer, Sarmiento, testified that she told Defendant \\\"multiple times\\\" that he had to find and complete an outpatient drug treatment program but he failed to do so. Although Defendant told Sarmiento that he would pursue treatment through LAFC, Sarmiento later found out that Defendant was unable to obtain treatment at that facility. Sarmiento then provided Defendant with two outpatient drug treatment alternatives to LAFC, but he never entered those or any other programs. We agree with the district court that through Sarmiento's testimony the State established a prima facie case that Defendant willfully violated a term of his probation agreement. Accordingly, to rebut this presumption Defendant was required to come forward with evidence showing that his non-compliance was not willful.\\n{11} On appeal, Defendant contends that his \\\"failure to get treatment resulted from factors beyond his control.\\\" However, Defendant does not direct us to anything in the record that provides evidence to support this statement. Indeed, Defendant did not present any evidence at the hearing to rebut the reasonable inference set forth by Sarmiento's testimony that his non-compliance was willful. Accordingly, we conclude that the district court did not abuse its discretion in determining that the State met its burden of establishing that, to a reasonable certainty, Defendant willfully violated a term of his probation. Cf. Leon , 2013-NMCA-011, \\u00b6 38-39, 292 P.3d 493 (concluding that \\\"the evidence was sufficient for a reasonable mind to conclude that [the d]efendant had violated [a] condition of his probation\\\" when the probation officer testified that the defendant did so and the defendant did not come forward with any evidence to rebut this presumption).\\n{12} Although we hold that the district court did not abuse its discretion in finding that Defendant violated probation, we nonetheless conclude that the court erred in revoking Defendant's probation on the basis that the violation was \\\"not a mere technical violation.\\\" As we have noted, we review a district court's revocation of probation under the abuse of discretion standard. Id. \\u00b6 36. However, \\\"our review of the application of the law to the facts is conducted de novo. Accordingly, we may characterize as an abuse of discretion a discretionary decision that is premised on a misapprehension of the law.\\\" Harrison v. Bd. of Regents of Univ. of N.M. , 2013-NMCA-105, \\u00b6 14, 311 P.3d 1236 (internal quotation marks and citations omitted). We begin with the provisions of the TVP.\\n{13} In August 2012, the First Judicial District established the TVP by administrative order (Order) pursuant to Rule 5-805(C) NMRA. Rule 5-805(C) allows a district court to \\\"establish a program for sanctions for probationers who agree to automatic sanctions for a technical violation of the conditions of probation.\\\" The Order, which was subsequently replaced by LR1-306, was the version that was in effect at the time the district court entered its judgment revoking Defendant's probation. We therefore analyze Defendant's argument under the provisions of the Order.\\n{14} Pursuant to the Order, a probationer who was placed into the TVP and who committed a technical violation of his or her order of probation, waived the right to due process procedures as provided by Rule 5-805 and would instead be sanctioned based on a progressive disciplinary scheme. For example, the probationer would receive up to three (3) days in jail for the first technical violation, up to seven (7) days in jail for a second violation, and up to fourteen (14) days for the third technical violation. Section E of the Order provided that \\\"[a]fter a fourth technical violation, a probationer may be subject to removal from the TVP and subsequent violations may be prosecuted pursuant to Rule 5-805.\\\" Technical violations included:\\n(1) having a positive urine or breath test or other scientific means of detection for drugs or alcohol;\\n.\\n(2) possessing alcohol;\\n(3) missing a counseling appointment;\\n(4) missing a community service appointment;\\n(5) missing an educational appointment; or\\n(6) the failure to comply with any term of, or to complete, any treatment program or any other program required by the court or probation.\\n{15} In this case, the district court found that Defendant \\\"violated his conditions of probation by failing to enroll in treatment as ordered by probation.\\\" The court further found that the violation was \\\"not a mere technical violation\\\" and granted the motion to revoke probation on that basis. Defendant contends that contrary to the district court's finding, his probation violation came within the ambit of either technical violation number three or six, above, and because this would be his third violation, the court could only impose a fourteen-day jail sanction. We agree.\\n{16} As an initial matter, we acknowledge that judicial districts have the authority to promulgate local rules and, pursuant to Rule 5-805(C), the First Judicial District had the authority to enact the TVP at issue here. However, it is well-established that local rules may not conflict with statewide rules. Rule 5-102(A) NMRA (\\\"Local rules and forms shall not conflict with, duplicate, or paraphrase statewide rules or statutes.\\\"); Rule 5-805(C) (stating that a judicial district may establish a TVP in accordance with Rule 5-102 ). As Defendant points out, Rule 5-805(C)(3) clearly and unambiguously defines a \\\"technical violation\\\" as \\\"any violation that does not involve new criminal charges.\\\" The State does not respond to Defendant's argument nor does it address the plain language of Rule 5-805(C).\\n{17} Notwithstanding the general rule that \\\"it is not the function of a reviewing court to substitute its own interpretation of a local rule for that of the court which promulgated the rule[,]\\\" State v. Cardenas , 2003-NMCA-051, \\u00b6 10, 133 N.M. 516, 64 P.3d 543 (alteration, internal quotation marks, and citation omitted), the plain language of Rule 5-805(C) provides that a technical violation is limited to violations that do not involve new criminal charges. The district court in this case specifically found that there was \\\"insufficient evidence that . Defendant violated the conditions of probation by committing new offenses.\\\" Without a finding that he committed a \\\"new violation of state law,\\\" Defendant's failure to enter and complete outpatient drug treatment must therefore be construed as a \\\"technical violation\\\" under Rule 5-805(C). See Fogelson v. Wallace , 2017-NMCA-089, \\u00b6 75, 406 P.3d 1012 (noting that we give effect to the plain meaning language of a statute when its language is clear and unambiguous); see also Frederick v. Sun 1031, LLC , 2012-NMCA-118, \\u00b6 17, 293 P.3d 934 (\\\"When construing our procedural rules, we use the same rules of construction applicable to the interpretation of statutes.\\\" (internal quotation marks and citation omitted) ). In sum, because local rules should not conflict with statewide rules, Rule 5-102(A), the district court erred in finding that Defendant's probation violation was \\\"not a mere technical violation\\\" under the TVP and by granting the State's motion to revoke probation on that basis. Instead, the district court should have imposed the sanction for a third violation of the Order and imposed a fourteen-day jail sentence for the violation. We vacate the court's order revoking probation and remand with instructions to reinstate probation.\\nCONCLUSION\\n{18} We affirm the district court's finding that Defendant violated probation. We reverse the district court's finding that Defendant's violation was not a technical violation and remand for sentencing consistent with the automatic sanctions of the TVP.\\n{19} IT IS SO ORDERED.\\nWE CONCUR:\\nJULIE J. VARGAS, Judge\\nSTEPHEN G. FRENCH, Judge\\nAdmininistrative Order, Case No. D-101-CS-2012-00010, In re Establishing a Technical Violation Program for Adult Probationers. The later-enacted local rule was not in effect at the time this case was under consideration. See LR1-306 NMRA (adopted by Supreme Court Order No. 16-8300-015 and effective for all cases pending or filed on or after December 31, 2016). The local rule varies from the administrative order in some measurable respects particularly with regard to the definition of \\\"technical violations\\\" and a probationer's removal from the program.\\nThis provision differs materially from LR1-306(E) which provides that \\\"[o]n a fourth technical violation, a probationer shall be removed from the TVP, and subsequent violations that would constitute technical violations under this rule may be prosecuted under Rule 5-805.... The court may also remove a probationer from the TVP at any time on a probation violation that is not defined as a technical violation by this rule.\\\"\"}"

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+"{\"id\": \"1552574\", \"name\": \"STATE of New Mexico, Plaintiff-Appellee, v. Andy RAEL, Defendant-Appellant\", \"name_abbreviation\": \"State v. Rael\", \"decision_date\": \"1994-03-14\", \"docket_number\": \"No. 14848\", \"first_page\": \"539\", \"last_page\": 543, \"citations\": \"117 N.M. 539\", \"volume\": \"117\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T17:39:58.489950+00:00\", \"provenance\": \"CAP\", \"judges\": \"ALARID and FLORES, JJ., concur.\", \"parties\": \"STATE of New Mexico, Plaintiff-Appellee, v. Andy RAEL, Defendant-Appellant.\", \"head_matter\": \"873 P.2d 285\\nSTATE of New Mexico, Plaintiff-Appellee, v. Andy RAEL, Defendant-Appellant.\\nNo. 14848.\\nCourt of Appeals of New Mexico.\\nMarch 14, 1994.\\nTom Udall, Atty. Gen., Patricia Gandert, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.\\nWinston Roberts-Hohl, Santa Fe, for defendant-appellant.\", \"word_count\": \"2465\", \"char_count\": \"15236\", \"text\": \"OPINION\\nBLACK, Judge.\\nBased on information from a confidential informant, narcotics agents obtained a search warrant for the premises where Defendant resided with his mother. When the agents executed the warrant no narcotics were found, but a rifle was discovered in Defendant's bedroom. Since Defendant had been previously convicted of a felony, he was charged with being a felon in possession of a firearm in violation of NMSA 1978, Section 30-7-16 (Cum.Supp.1993).\\nAt trial, the district court denied Defendant's motion in limine and repeated objections directed at limiting prosecution references to Defendant's suspected drug connections. Defendant argues that these references and testimony should have been excluded under SCRA 1986, 11-404 (Rule 404) and SCRA 1986, 11-403 (Rule 403), and that he was prejudiced by the district court's admission of these references. Defendant further argues that when the State was allowed to admit, over objections, portions of the police report stating that Defendant had admitted he dealt drugs \\\"a little\\\", it was error not to grant Defendant's request to admit the full police report indicating no drugs had been found in the search. Because we agree it was reversible error to allow the prosecutor to interject Defendant's alleged connection with drugs, we do not address Defendant's second argument.\\nI. FACTS\\nDefendant, a convicted felon, was on parole. He was summoned to his parole officer's office, and, when he arrived there, he was served with a search warrant by narcotics agents. The search warrant was based on an informant's affidavit accusing Defendant of dealing in cocaine.\\nThe search warrant was executed, and no cocaine was found, but the narcotics agents found the rifle. There was conflicting evidence as to whether the rifle belonged to Defendant. Defendant's mother stated the rifle belonged to her deceased husband, but one of the narcotics agents testified that Defendant said the gun was his and he needed it for protection. Defendant was charged as a felon in possession of a firearm.\\nBefore opening statements, defense counsel made a motion in limine asking the district court to direct the district attorneys to make sure that their witnesses did not refer to the fact that the warrant was issued to search for cocaine. Defendant argued that since no cocaine was found in his home, and there was no charge relating to cocaine possession, that any reference to illegal drugs would inject an improper and prejudicial element into the trial which could not be cured by a jury instruction. The State promised to instruct the witnesses to be careful about their testimony. An assistant district attorney told the court: \\\"We will not have the officers-testify that the confidential informant told them that Mr. Rael was dealing in drugs. We will exclude that.\\\" The district court denied the motion in limine.\\nIn the opening statement, an assistant district attorney stated that the police had \\\"learned that Andy Rael was involved in illegal activity.\\\" The assistant district attorney stated further that, upon investigation, the police \\\"learned that Andy Rael was in fact, out of the home he was living in, selling cocaine.\\\" The defense moved for a mistrial. The motion was denied.\\nLater, one of the narcotics agents who executed the search warrant testified that he had Defendant under surveillance for cocaine dealing and that Defendant was a known cocaine dealer. Defendant again moved for a mistrial, which was again denied.\\nOn rebuttal, the district attorney was permitted to read from the police report. Over objection, the prosecution was allowed to refer to a portion of the report, in which a narcotics agent claimed that Defendant told him: \\\"I do a little because I have to survive but I don't deal as much as you think.\\\"\\nIn closing arguments, the assistant district attorney described Defendant as a drug dealer. More importantly, she made a direct link between dealing drugs and the charge for which Defendant was on trial, possession of a firearm, telling the jury: \\\"The search warrants authorized a search for drugs and for weapons. Why weapons? Drug dealers use weapons to defend themselves. To defend their turf. To make sure. Drugs are a dangerous business.\\\" She later reiterated: \\\"Keeping a gun is consistent with being a drug dealer.\\\" The defense again moved for a mistrial, which was denied.\\nThe jury convicted Defendant of being a felon in possession of a firearm.\\nII. RULE 404\\nLike its federal counterpart, New Mexico Rule 404 provides that character evidence is not admissible for the purpose of proving that in a specific instance a person acted in conformity with such character. State v. Reneau, 111 N.M. 217, 219, 804 P.2d 408, 410 (Ct.App.1990). \\\"This prohibition, particularly in the context of criminal prosecutions, is justified by concern that character evidence when used circumstantially is likely to be given more probative value than it deserves and may lead the fact-finder to punish a bad person regardless of the evidence of what happened in the specific case.\\\" State v. Lamure, 115 N.M. 61, 69, 846 P.2d 1070, 1078 (Ct.App.1992) (Hartz, J., specially concurring), cert. denied, 114 N.M. 720, 845 P.2d 814 (1993). Therefore, testimony which amounts to evidence of a defendant's bad character, or disposition to commit the crime charged, when not offered for a legitimate purpose, is inadmissible and unfairly prejudicial. State v. Aguayo, 114 N.M. 124, 129, 835 P.2d 840, 845 (Ct.App.), cert. denied, 118 N.M. 744, 832 P.2d 1223 (1992).\\nIn reversing a gun possession conviction, the United States Court of Appeals for the Fifth Circuit recently applied Federal Rule 404 to virtually identical facts. In United States v. Ridlehuber, 11 F.3d 516 (5th Cir.1993), officers executed search warrants and found various chemicals used to manufacture illegal drugs and guns. However, since the chemicals were consistent with both the illegal manufacture of methamphetamine and the legitimate metal plating business that Ridlehuber and his father were engaged in, Ridlehuber was only charged and convicted of possession of an unregistered short-barreled shotgun. Nonetheless, over objection, the prosecution's witnesses repeatedly testified to the link between the chemicals found at the defendant's residence and the manufacture of illicit drugs. In \\\"closing argumentf] the prosecutor articulated what had been intimated all along: Ridlehuber possessed the sawed-off shotgun to protect an illegal drug lab.\\\" Id., 11 F.3d at 520.\\nPrior to trial, Ridlehuber's counsel made a motion in limine seeking an order preventing the government witnesses from alluding to the chemicals as an illegal drug lab. The government argued, as it did in response to repeated objections to drug manufacturing testimony by its witnesses, that because the drug related items were \\\" 'inextricably linked' \\\" with the weapon, such evidence was necessary so the jury could \\\"evaluate all of the circumstances under which the defendant acted.\\\" Id., 11 F.3d at 521. Because the analysis of the Fifth Circuit, in rejecting the government's argument, fits the present ease so closely, we quote it at length:\\nThe connection here between the offense charged in the indictment and evidence of the uncharged offense is not so clear. We cannot say, for example, that the drug-related evidence arose out of the weapons charge. On the contrary, under the prosecution's theory of the case the opposite was true. The government argued that the shotgun was just a cog in the wheel of a larger criminal enterprise: a clandestine drug lab. The problem is that the government did not prove the existence of a drug lab \\u2014 it did not have sufficient evidence to do so. If the proof were reversed and Ridlehuber was charged with and convicted of running a drug lab, with the shotgun admitted over objection, the result might be different____ But the government did not charge Ridlehuber with running a drug lab and the evidence adduced at trial did not prove the existence of a clandestine lab. Thus, we cannot allow the prosecution's unproven drug lab theory dictate what is and is not extrinsic of the charged offense.\\nFurthermore, this is not a situation in which the \\\"other acts\\\" evidence falls outside of Rule 404(b)'s purview because the evidence of the charged and uncharged offenses both were part of a \\\"single criminal episode.\\\" The only \\\"criminal episode\\\" proven here was possession of a short-barreled shotgun. The rest is conjecture.\\nId., 11 F.3d at 522 (citations omitted).\\nAfter noting that the government had failed to charge or prove Ridlehuber was manufacturing illegal drugs, the Fifth Circuit pointed out that there was not merely passing reference to the link between the chemicals found and the manufacture of drugs, but, rather, several witnesses explicitly made the connection. The Fifth Circuit also found it significant that, although a sawed-off shotgun could be used by drug dealers, the gun seized at Ridlehuber's residence had a defective hammer and required a tool to cock it. The Fifth Circuit concluded that allowing admission of testimony concerning Ridlehuber's possible connection with the manufacture of illegal drugs, on which the evidence was tenuous, in his trial for possession of an illegal firearm would eviscerate Rule 404(b):\\nIn sum, if we hold that the drug related evidence in this case is not extrinsic, the exception to Rule 404(b) embodied in the \\\"inextricably intertwined\\\" analysis will swallow the rule. This is so considering (1) the weakness of the proof of drug offenses; (2) the weakness of the link between the drug offenses and the particular weapon, which was not very useful for its purported purpose; and (3) the barely adequate proof of defendant's possession of the weapon, which makes the impact of the drug evidence so much greater. Under these circumstances, Rule 404(b) prevents the government from bootstrapping evidence into this case.\\nId., 11 F.3d at 524. We find the analysis in Ridlehuber, being applied as it is to virtually identical facts, very persuasive.\\nThe only rationale advanced by the State to justify the repeated references to the present Defendant as a known drug dealer is that this fact, if it be such, was \\\"part of the res gestae or 'complete story.' \\\" The \\\"complete story\\\" is that the State lacked sufficient evidence to convict Defendant of possession or distribution of illegal drugs but relied on unsubstantiated hearsay to convince the jury Defendant was a \\\"known drug dealer\\\" so, ipso facto, the shotgun must belong to him. Rule 404 prohibits the admission of such extrinsic evidence.\\nIII. RULE m\\nIn addition to arguing Rule 404 precluded evidence of Defendant's alleged reputation as a \\\"known, drug dealer\\\", defense counsel also argued that references to illegal drug trafficking are so inflammatory that the balancing required under Rule 403 must lead to exclusion of such testimony. We also find this argument convincing.\\nWhile Rule 403 recognizes the district court's discretion to strike a balance between the probative value and prejudicial effect of evidence, it requires the district court to be sensitive to the potential prejudice inherent in evidence of Defendant's prior uncharged conduct. See Aguayo, 114 N.M. at 128, 835 P.2d at 844. \\\"One cannot ignore the long tradition of courts and commentators expressing fear that jurors are too likely to give undue weight to evidence of a defendant's prior misconduct and perhaps even to convict the defendant solely because of a belief that the defendant is a bad person.\\\" See Lamure, 115 N.M. at 71, 846 P.2d at 1080 (Hartz, J., specially concurring).\\nWe again find the reasoning of the Fifth Circuit in Ridlehuber persuasive, this time on the proper application of Rule 403 in such circumstances:\\n\\\"[T]he central concern of rule 403 is whether the probative value of the evidence sought to be introduced is 'substantially outweighed by the danger of unfair prejudice.' \\\" The drug-related evidence was probative on the issue of motive; it explained why Ridlehuber might have a sawed-off shotgun in his residence----\\nThe danger of unfair prejudice from admission of the drug-related evidence, by contrast, was great. The clandestine manufacture of controlled substances like methamphetamine and amphetamine is the kind of offense for which the jury may feel the defendant should be punished regardless of whether he is guilty of the charged offense.\\nRidlehuber, 11 F.3d at 521 (quoting United States v. Beechum, 582 F.2d 898, 913 (5th Cir.1978), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979)) (citations omitted).\\nEvidence that even a witness had been involved with drugs has been held to be properly excluded as unduly prejudicial under Rule 403. State v. Blea, 101 N.M. 323, 327, 681 P.2d 1100, 1104 (1984). A mere allegation of drug sales by a defendant charged with possession of a firearm transgresses the limit of Rule 403 even more clearly. See United States v. Sullivan, 919 F.2d 1403, 1416 (10th Cir.1990), cert. denied, \\u2014 U.S. -, 113 S.Ct. 285, 121 L.Ed.2d 211 (1992), and cert. denied, \\u2014 U.S. -, 113 S.Ct. 1013, 122 L.Ed.2d 161 (1993). In the present case, Rule 403 prohibits the admission of such prejudicial evidence.\\nIV. CONCLUSION\\nWe hold the district court incorrectly applied Rule 404 in allowing the State's witnesses to testify, over objection, that Defendant was a known drug dealer. We also hold the district court erred in allowing the prosecutor to argue that Defendant was a known drug dealer and that \\\"keeping a gun is consistent with being a drug dealer.\\\" This evidence and argument allowed the jury to conclude that, even though there was no actual evidence Defendant was dealing drugs, Defendant was known to be a drug dealer and drug dealers keep guns, ipso facto, the rifle must belong to Defendant. Even if admissible, this evidence was certainly more prejudicial than probative and denied Defendant a fair trial. Accordingly, we reverse Defendant's conviction and remand for a new trial.\\nIT IS SO ORDERED.\\nALARID and FLORES, JJ., concur.\\n. As to the \\\"res gestae\\\" concept, we note that since the adoption of the Federal Rules of Evidence, both courts and commentators have largely abandoned \\\"the general haze of the res gestae doctrine.\\\" 4 David W. Louisell & Christopher B. Mueller, Federal Evidence \\u00a7 439, at 494 (1980); see 2 John W. Strong, McCormick on Evidence \\u00a7 268 (4th ed. 1992). Its continued use in New Mexico appears to be largely limited to the felony murder context where its breadth has been severely constricted. See State v. Harrison, 90 N.M. 439, 442, 564 P.2d 1321, 1324 (1977).\\n. If the admission of evidence in violation of Rule 404 was harmless, reversal would not be appropriate. State v. Lucero, 114 N.M. 489, 494, 840 P.2d 1255, 1260 (Ct.App.), cert. denied, 114 N.M. 413, 839 P.2d 623 (1992). It is therefore necessary to engage in the balancing required by Rule 403.\"}"

nm/1554377.json

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+"{\"id\": \"1554377\", \"name\": \"CALIFORNIA SUGAR & WHITE PINE CO. v. WHITMER JACKSON & CO.\", \"name_abbreviation\": \"California Sugar & White Pine Co. v. Whitmer Jackson & Co.\", \"decision_date\": \"1928-01-04\", \"docket_number\": \"No. 2986\", \"first_page\": \"117\", \"last_page\": 128, \"citations\": \"33 N.M. 117\", \"volume\": \"33\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T21:33:56.279297+00:00\", \"provenance\": \"CAP\", \"judges\": \"PARKER, C. J., and WATSON, J., concur.\", \"parties\": \"CALIFORNIA SUGAR & WHITE PINE CO. v. WHITMER JACKSON & CO.\", \"head_matter\": \"[No. 2986.\\nJan. 4, 1928.]\\nCALIFORNIA SUGAR & WHITE PINE CO. v. WHITMER JACKSON & CO.\\n[263 Pac. 504.]\\nMarr\\u00f3n & Wood, of Albuquerque, for appellant.\\nReid, Hervey & Iden, of Albuquerque, for appellee.\", \"word_count\": \"4076\", \"char_count\": \"23372\", \"text\": \"OPINION OF TPIE COURT\\nBICKLEY, J.\\nPlaintiff (appellant) sued defendant (appellee) for damages for breach of contract to purchase lumber, to be delivered at Albuquerque, N. M., in weekly installment shipments, commencing in the early part of July, 1920, and to proceed at the rate of one carload a week, 32 weeks being required to complete the deliveries and allowing for time in transit. The contract could thus have been fully performed in February, 1921. This construction was invited by plaintiff and was liberal to it and is not complained of.\\nAppellant makes no complaint here as to the court's instructions to the jury.\\nAccording to the statement of facts as given by the plaintiff, before the time arrived for the delivery of the lumber, the defendant attempted to cancel the contract, without any legal excuse, and refused to carry it out or comply with its terms on its part. The plaintiff declined to assent to a cancellation of the contract and offered and tendered performance on its part and held itself in readiness to perform during the time specified in the contract, and the sole question for trial and submitted to the jury was the amount of damages the plaintiff was entitled to recover. Appellant claims that it was established and we assume that there was no market for lumber at Albuquerque, the place fixed for delivery, and that the nearest available and effective market was in the state of California, and the market value was therefore to be determined by the market price and conditions in California, taking in consideration the freight rate to Albuquerque. The plaintiff also contended that when the time arrived for the fulfillment of the contract on its part and during the period of time fixed for the delivery of the installments, a great depression in the lumber trade and industry existed in the state of California, and throughout the country, with most other industries, at the time, to such a degree that the lumber market was demoralized and did not exist., so that it was impossible to go into the open market or any market available and find a ready, or practically any, sale for the lumber; that in order to dispose of the lumber, it was necessary to make a continued effort during a long period of time, and that in pursuance of such effort used by the defendant, the lumber was not in fact disposed of and could not have in the exercise of due and reasonable diligence been disposed of for more than a year after the time fixed for the delivery; and that in the meantime the prices and demand steadily declined and the buying market continued to shrink, until toward the end of the period when lumber could be sold at all, it was for less than one-half the price fixed by the contract.\\nThis contention of the plaintiff was denied by the defendant, who asserted that there was an ample existing market for lumber at the time at which the plaintiff could and should have sold the lumber at a price as much, or more, than that fixed in the contract. The contract, as construed by the court, permitted the plaintiff to ship the lumber in 32 weekly installments, which, commencing in early July, 1920, would carry the time for delivery into the following February. The court considered that a reasonable time thereafter should be allowed within which market conditions could be consulted in determining the market value of the lumber at the times fixed for delivery, and fixed April 1st as limiting the period for such inquiry \\u2014 later times being too remote. By ten assignments of error, the appellant presents its chief contention that the court erred in excluding evidence offered by it to show its efforts to sell the lumber at subsequent more or less remote dates and the prices obtained therefor. Appellant says the question is most nearly presented by its assignment of error No. 2, from which we hereafter quote its theory of the tender of the evidence in question.\\nOne of the instructions given by the court at the request of the plaintiff is as follows:\\n\\\"The ordinary rule of damages where a purchaser has refused to accept goods which he had bought and agreed to pay for is the difference between the contract price and the market value of the goods at the time and place fixed for delivery; and in cases like the present where the goods were to be delivered in installments, you should find and determine: the market value of each installment or carload of the lumber at Albuquerque in accordance with the terms of the contract; and the difference between that sum and the contract price, if the market value be less than the contract price, would be the damages upon that installment and the sum of the damages upon all the installments ascertained and computed in the same manner would be the amount of plaintiff's damages.\\\"\\nIt is the contention of the appellant that as there was no effective California market during the period in which the contract could be performed, and that as the plaintiff, exercising reasonable diligence through an effective sales organization, was unable to dispose of the lumber purchased by defendant until some time in September, 1921, it should have been permitted to introduce evidence of the sales of the lumber contracted for and the prices obtained therefor subsequent to April 1, 1921, and up until the time all of such lumber had been disposed of.\\nIn Mechem on Sales, vol. 2, \\u00a7 1618, is a discussion of an election of remedies which the vendor has in case the purchaser breaches the contract as follows:\\n\\\" 'The vendor of personal property,' it was said in a leading case, 'in a suit against the vendee for not taking and paying for the property, has the choice ordinarily of either one of three methods to indemnify himself: (1) He may store or retain the property for the vendee, and sue him for the entire purchase price; (2) he may sell the property, acting as the agent for this purpose of the vendee, and recover the difference between the contract price and the price obtained on such resale; or (3) he may keep the property as his own, and recover the difference between the market price, at the time and place of delivery, and the contract price.' This choice of remedies has been frequently asserted, and, with perhaps some modification, seems to have become an established doctrine of our law.\\\"\\nPlaintiff did not proceed under election No. 1, and disclaims having proceeded under election No. 2, and declares in its reply brief that it had at no time during the trial advocated that the measure of its damages was the difference between the contract price and the amount received on the sale of the lumber. Plaintiff did contend that its inability to sell promptly broadens the field of inquiry, so that evidence is to be received as bearing upon the value of the goods left on its hands, which evidence would be, ordinarily, too remote.\\nThe theory upon which the offer of evidence was made is shown by the following tender:\\n\\\"We offer to show prices at which sold, running on until about the month of September, 1921, when the last of it was sold, both as showing a measure of damages and also as evidence from which the market value, used in the sense of actual money value, of the lumber was during the respective months when these shipments could have been made by the contract.\\\"\\nWe suspect that plaintiff by the use of the words, \\\"as showing a measure of damages,\\\" may have had in mind, the second choice of methods to indemnify itself, as indicated by Mechem on Sales, supra; but, if so, such contention was abandoned, as indicated by the instruction quoted, supra, and such contention is disclaimed here. So, all we have to consider is the admissibility of the tendered evidence as being relevant to the measure of damages as announced in said instruction.\\nIn Williston on Sales (2d Ed.) p. 1376, it is said:\\n\\\"These damages are the difference between the contract price and the market price at the time and place when the performance should have been made by the buyer. The object of the resale in such a case is to determine what that market price in fact was. Unless the resale is made at about the time when performance was due, it will be of slight probative force, especially if the goods are 'of a kind which fluctuate rapidly in value, to show what the market price actually was at the only time legally important.\\\"\\nAppellant contends that where there was no market for the goods at the time the buyer was obliged to accept them, evidence could be introduced as to the price for which the goods sold, to determine the value thereof, even though the resale is of a time subsequent to the time performance should have been made by the buyer. Even if this is so, it became a preliminary question for the court to determine whether as a matter of fact there was an absence of a market at the time the contract was to be performed by the buyer. Some courts hold that finality as to the court's findings of fact upon which the admissibility of evidence depends is conceded to the trial judge; others, that his exercise of a legal discretion may be appealed from, and examined by the appellate court, to determine whether such discretion has been abused. Even if the latter is the correct rule, which we do not now decide, we are unable to say, after an examination of the record, that the trial court abused its discretion in the determination of the preliminary question of fact, upon which depended the admissibility of the evidence offered, and therefore find no error in its rejection.\\nAppellant also challenges the action of the trial court in receiving in evidence excerpts from the Timber-man, as follows:\\n\\\"Exhibit D-59: 'California Pine Market.' 'The demand' for pine box lumber continues strong in California on a basis of about $42.00. Shook is selling around $65.00. The supply of shop is low and up to the saw. It is used as fast as it can be produced. No. 1 shop F. o. b. mill is quoted from $90.00 to $92.00, with No. 2 shop at $10 less.'\\n\\\"Exhibit D-60: 'California White and Sugar Pine. San Francisco, Cal., July 2, 1920. Members of the San Francisco trade who recently checked the available amount of No. 2 shop and better in sugar and white pine declare that not over 15 million feet is available as unsold stocks. On May 1 only 50 per cent, as much pine lumber was piled at 20 mills as on May 1, 1919, it is reported.' And the following is also admitted: 'An advance in California sugar and white pine became effective on July 1. No. 1 and 2 clears advanced $5 and No. 3 clears $3 per thousand. The demand is strong with very limited stocks. No changes were made in other items.' The rest of- the offer is refused.\\\"\\n\\\"In the November, 1920, issue of the Timberman, the offer in the first column on page 81 under the heading 'White and Sugar Pine Situation' is refused. The offer in the second column, page 81, of the same paper, under the heading 'White Pine,' the following will be received: 'Average f. o. b. prices. Average prices f. o. b. a number of representative mills are about as follows: White Pine 5/ and 6/4 No. 1 shop, $90; 5/4 and 6/ No. 2 shop $66.'\\n\\\"San Francisco Market. [Subheading:] California Pine Prices. The following prices were quoted on October 1 for California white and sugar pine: 5/4, 6/4 No. 1 shop $92; 5/4, 6/4 No. 2 shop $70.\\\"\\nThe Timberman is exclusively a trade journal, published in Portland Or., for the lumber trade once each month, and always gives quotations on the market and other information regarding the state of the market as to lumber. It is satisfactorily shown that the Timberman is a reliable journal and is relied upon by the trade in general in dealings and negotiations touching lumber. The four excerpts quoted were from four separate monthly publications of the Timberman, offered for the purpose of showing the state of the market in the respective months of its publication. There were several objections made to the evidence quoted, but the argument of appellant challenging its admissibility presents solely the propositions as illustrated by the authorities he cites, that the introduction in evidence of such publication is not admissible as tending to prove or disprove the issues in this'case, and especially not when there is no preliminary showing as to the source from which its information is derived and as to the reliability of the source of information.\\nThe rule governing the introduction of evidence of this character is thus stated in 10 R. C. L. \\\"Evidence,\\\" \\u00a7 367:\\n\\\"It is a rule recognized generally that market reports or quotations as contained, in newspapers, trade journals, trade circulars, price lists, etc., are competent evidence of the state of the market. Indeed, such reports, based as they are upon a general survey of the whole market, and constantly received and acted upon by dealers, are far more satisfactory and reliable than individual entries or individual sales or inquiries;, and courts would justly be the subject of ridicule if they should deliberately shut their eyes to the sources of information which the rest of the world relies upon, and demand evidence of a less certain and satisfactory character. Such evidence is within an exception to the general rule barring the admission of hearsay evidence inasmuch as it conies from a public authentic source which is deemed to give it reliability.\\\"\\nSubstantially -the foregoing is used as a headnote in an annotation to Atlantic Nat. Bank v. Korrick (Ariz.) 242 P. 1009, 43 A. L. R. 1184, where a large number of cases are cited in support thereof.\\nIn support of the contention that such evidence is not admissible without a preliminary showing as to the source from which the information is derived and as to the reliability of such source, appellant cites the foregoing case and a companion case from Arizona, Atlantic Nat. Bank v. Moore, 241 P. 609. These cases are readily distinguishable. It was not shown that the publication there involved was news of the market of which the business and trade world could take .advantage, or that it was published for the enlightenment of persons dealing in the articles referred to, nor that persons generally in the habit of dealing in such commodity relied upon its market quotations. The other cases cited are either distinguishable or are out of harmony with the weight of authority. We find no error in the admission of this evidence.\\nAppellant claims that the court erred in permitting the witness Bernhaur to testify concerning the contents of price lists of the Madiera Lumber Company in effect in the San Joaquin Valley, Cal., during the year 1920, and also receiving in evidence the price lists concerning which the witness testified.\\nIt is urged that at best the lists showed the prices in one locality only in California and did not reflect the general market. Also, that it was not shown that the prices listed were adhered to or represented actual trade conditions. When it is remembered that the plaintiff claimed that while price lists kept up there was no demand at all, and no practical market for any material quantity of lumber after July 1, 1920, and that the demand was spasmodic and unsettled between May and July, 1920, with very few transactions, any evidence showing demand, supply, and prices and actual transactions would be important on the question of the existence of a market, as well as upon the market prices.\\nHaving seen from the authorities quoted, supra, that price lists are competent evidence of the state of the market, our inquiry as to the evidence objected to is limited to the alleged defects in these particular lists and testimony concerning them. When we consider that the witness had been for years president and manager of a planing mill company that used about 500,000 feet per year (including 1920) of lumber of the character involved, and that practically all of such lumber was bought from the Madiera Lumber Company of Madiera, Cal., \\\"in accordance with their printed price lists published and distributed throughout the San Joaquin Valley,\\\" and that the price lists were f. o. b. Fresno and included a freight charge ofj $1 per thousand, and that the price lists referred to were as low as any other quotations being made for similar stock in that territory, and, taken in connection with the testimony of Colonel Breece that the market price of lumber all over the country is determined by the price of the lumber at the mills, plus freight to the market place, we think the testimony of the witness and the price lists were admissible as tending to show the state of the market.\\nThe following questions and answers appear in the examination of J. M. Farrell, witness for defendant:\\n\\\"Q. Were you in the market as a purchaser, at the prices such as you were paying, as shown by your testimony and by the billing and Exhibit B-43, for 565,000 feet of shop and better, during the months of June, July, August, and September, 1920? A. \\u00cd would.\\n\\\"Q. How would you do that so far as the shipments are concerned? A. Our practice was to accept shipments, two or three cars per week; yet at the time, lumber was so scarce, as a buyer, I wouldn't dictate the deliveries.\\\"\\nAppellant assigns error on account thereof. The objection is that it is speculative as to what the witness could or would have done and that it did not fix the market value in California and that the installments were not available in July.\\nIt appears that Mr. Spaulding, manager of the plaintiff company, and a witness for it, had testified that plaintiff maintained representatives in various parts of the United States and sold lumber throughout the United States and Canada, and that its representative at Chicago is Louis Wuichet. He also testified that the lumber in question could not have been sold at the rate of four cars per month except at a discount of 25 per cent, to 40 per cent. The witness Farrell had also testified that in June, 1920, the aforesaid Louis Wuichet told the witness that he could no longer care for Farrell's company's needs, as the demand for shop lumber was so great as to make timber scarce and that from June to August, 1920, the witness needed lumber very much and several times told Wuichet that he wanted lumber and Wuichet said he could not furnish it. Defendant offered this evidence to show that the lumber in question was in demand, that it had not declined from the contract price, and to rebut the statement of plaintiff's witness Spaulding, that he had repeatedly tried to' sell this lumber and found great difficulty in doing so. Under the circumstances detailed, we see no error in the action of the court in admitting the testimony.\\nIt is next claimed by appellant that it was error to permit the witness, Farrell, to testify to the effect that in August, 1920, he needed lumber badly to keep his factory going and went to Chicago to talk to a lumber broker, named Ruplee, about two cars of lumber that he had heard Ruplee had for sale. The lumber was not in Chicago, but the broker had it for sale, but by the time the witness reached Chicago, about one-half of it was already sold. Appellant objected, on the ground that it was immaterial, that the question did not call for evidence of market value at any time or place affecting the issue in the suit, and that the conditions of the market' or the existence of a market in Chicago was immaterial; but that the existence of a market in California was the only criterion which would reflect the Albuquerque market. It is true the court instructed the jury that the market value of the lumber at Albuquerque was to be determined by first ascertaining the market value of the lumber at the mills in California and then adding thereto the freight. But Mr. Spaulding, an officer of plaintiff, had testified that the market, for lumber is all over the United States and Canada. So, while the market value might be fixed as at the mills in California, the market is not limited to that state. Defendant sought to show by this evidence that at one place where plaintiff maintained an office and a representative for the sale of lumber, the demand was greater than the supply, the plaintiff having sought to show the reverse. There was no error in the admission of this testimony.\\nAppellant claims that the court erred in sustaining objections to questions put to the witness, Ruplee, as to the condition of the lumber market in Chicago during portions of 1920. These questions were contained' in the cross-examination of the witness in a deposition taken at the instance of the defendant. The defendant, deeming the deposition of no value to it and beneficial to the plaintiff, did not present it. After the defendant rested, this evidence was offered by plaintiff in rebuttal. It was objected to by the defendant as not being in rebuttal.\\nThe plaintiff had the burden of proving the amount of its damages, and, in the effort to do so, proceeded upon the theory that the lumber market in the latter .part of 1920 and early part of 1921 was demoralized and that there was very little demand for lumber; as plaintiff says in its brief in chief: \\\"The principal question at issue before the jury was this question as to the existence of a market, and its character.\\\"\\nUnder the familiar and usual rule, the plaintiff, having the affirmative of the issue, shall first introduce all the evidence tending to sustain such issue, and the defendant shall then put in such evidence as is properly receivable to destroy the force of plaintiff's case. So, plaintiff introduced evidence to show little demand and no real market, and defendant then put in evidence to show a heavy demand and a good market; and plaintiff, at the stage of rebuttal, sought to show by the witness lack of demand and a poor market.\\nThe evidence offered is not what is deemed \\\"evidence strictly in rebuttal\\\" or \\\"true rebuttal\\\" as defined by the law-writers, which plaintiff could put in. as a matter of right. It falls within the classification of \\\"evidence not strictly in rebuttal,\\\" being merely cumulative or confirmatory of that put in by plaintiff on the original case.\\nPlaintiff, however, asked permission to introduce the testimony as its affirmative evidence and as part of its case in chief, claiming to have been misled by the action of the defendant in failing to offer the deposition. In such instance, the rejection is within the sound discretion of the trial court. We find no reversible error in having rejected it.\\nFinally, the appellant says the judgment should he reversed and a new trial ordered, because under the court's instructions the . verdict was inadequate. The appellee, on the other hand, says the verdict was very liberal for plaintiff. The evidence is conflicting. This question, however, we will not look into, it being one of fact, and the verdict is conclusive in the absence of prejudicial error on the trial and in the absence of any showing- that the jury was affected by passion or prejudice. See Schofield v. Territory, 9 N. M. 526, 56 P. 306; Henderson v. Dreyfus, 26 N. M. 541, 191 P. 442.\\nFinding no reversible error in the record, the judgment is affirmed and the case remanded; and it is so ordered.\\nPARKER, C. J., and WATSON, J., concur.\"}"

nm/1555166.json

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+"{\"id\": \"1555166\", \"name\": \"Joseph M. JARAMILLO, Petitioner-Appellant, v. Hon. James M. O'TOOLE, Magistrate, Division II of the Magistrate Court, in and for Bernalillo County, New Mexico, Respondent-Appellee\", \"name_abbreviation\": \"Jaramillo v. O'Toole\", \"decision_date\": \"1982-02-03\", \"docket_number\": \"No. 13708\", \"first_page\": \"345\", \"last_page\": 346, \"citations\": \"97 N.M. 345\", \"volume\": \"97\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T23:46:03.555838+00:00\", \"provenance\": \"CAP\", \"judges\": \"PAYNE and FEDERICI, JJ., concur.\", \"parties\": \"Joseph M. JARAMILLO, Petitioner-Appellant, v. Hon. James M. O\\u2019TOOLE, Magistrate, Division II of the Magistrate Court, in and for Bernalillo County, New Mexico, Respondent-Appellee.\", \"head_matter\": \"639 P.2d 1199\\nJoseph M. JARAMILLO, Petitioner-Appellant, v. Hon. James M. O\\u2019TOOLE, Magistrate, Division II of the Magistrate Court, in and for Bernalillo County, New Mexico, Respondent-Appellee.\\nNo. 13708.\\nSupreme Court of New Mexico.\\nFeb. 3, 1982.\\nDavid A. Grammer, III, Albuquerque, for petitioner-appellant.\\nHarold H. Parker, Angelo J. Jewell, Albuquerque, for respondent-appellee.\", \"word_count\": \"443\", \"char_count\": \"2822\", \"text\": \"OPINION\\nEASLEY, Chief Justice.\\nWil-Don Inc. sued Jaramillo in magistrate court, alleging breach of contract. The case was tried before a jury, which found in favor of Jaramillo. Wil-Don moved for judgment notwithstanding the verdict; the magistrate judge denied the motion and instead ordered a new trial. Jaramillo then sought a writ of prohibition from district court. The permanent writ was denied, and Jaramillo appeals the district court's decision. We reverse.\\nThe issue is whether a magistrate court has jurisdiction to set aside a jury verdict.\\nOur Constitution empowered the Legislature to create a magistrate court with limited jurisdiction. N.M.Const., Art. VI, \\u00a7 26 (reenacted 1966). The Legislature, accordingly, enacted 1968 N.M. Laws, ch. 62, \\u00a7 3 as codified in Section 35-1-1, N.M.S.A.1978, which established magistrate courts as courts with limited original jurisdiction. \\\" '[Ljimited' jurisdiction indicates that a magistrate is without authority to take action unless the authority has been affirma tively granted.\\\" State v. Vega, 91 N.M. 22, 25, 569 P.2d 948, 951 (Ct.App.1977).\\nWil-Don argues that rule 34 of the New Mexico Rules of Civil Procedure for Magistrate Courts, N.M.S.A.1978, affirmatively vests magistrates with the power to grant a new trial. The Rule reads:\\nError in either the admission or the exclusion of evidence and error or defect in any ruling, order, act or omission by the court or by any of the parties is not grounds for granting a new trial or for setting aside a verdict, for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take any such action appears to the court inconsistent with substantial justice.\\nA close reading of. the rule does not support Wil-Don's contention. The rule addresses acts and errors made by the magistrate or the parties. It does not say that magistrates may set aside a jury verdict.\\nThis reading comports with Section 35-8-4(C), N.M.S.A.1978, which states in part: \\\"The magistrate shall give judgment upon any verdict.\\\" (Emphasis added.) We interpret \\\"shall\\\" as mandatory. \\u00a7 12-2-2(1), N.M.S.A.1978; Mantz v. Follingstad, 84 N.M. 473, 505 P.2d 68 (Ct.App.1972).\\nTherefore, the magistrate in this case was not empowered to set aside the jury verdict for the purpose of granting a new trial. We remand the case to the district court for entry of a permanent writ of prohibition.\\nIT IS SO ORDERED.\\nPAYNE and FEDERICI, JJ., concur.\"}"

nm/1557053.json

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+"{\"id\": \"1557053\", \"name\": \"SENTRY INSURANCE COMPANY, Plaintiff-Appellee, v. GEORGE A. RUTHERFORD, INC., Defendant-Appellant\", \"name_abbreviation\": \"Sentry Insurance v. George A. Rutherford, Inc.\", \"decision_date\": \"1978-10-23\", \"docket_number\": \"No. 11902\", \"first_page\": \"210\", \"last_page\": 211, \"citations\": \"92 N.M. 210\", \"volume\": \"92\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T17:09:56.278497+00:00\", \"provenance\": \"CAP\", \"judges\": \"PAYNE and FEDERICI, JJ., concur.\", \"parties\": \"SENTRY INSURANCE COMPANY, Plaintiff-Appellee, v. GEORGE A. RUTHERFORD, INC., Defendant-Appellant.\", \"head_matter\": \"585 P.2d 1091\\nSENTRY INSURANCE COMPANY, Plaintiff-Appellee, v. GEORGE A. RUTHERFORD, INC., Defendant-Appellant.\\nNo. 11902.\\nSupreme Court of New Mexico.\\nOct. 23, 1978.\\nOldaker, Oldaker & Watkins, Michael P. Watkins, Albuquerque, for defendant-appellant.\\nKeleher & McLeod, Russell Moore, Robert H. Clark, Albuquerque, for plaintiff-appellee.\", \"word_count\": \"476\", \"char_count\": \"3031\", \"text\": \"OPINION\\nMcMANUS, Chief Justice.\\nGeorge A. Rutherford, Inc. (Rutherford) entered into a contract with the Regents of the University of New Mexico to construct an addition to the basketball arena. As part of the contract, Rutherford was required to obtain builder's risk insurance to insure against the \\\"perils of fire, extended coverage, vandalism and malicious mischief.\\\" The Regents had a blanket policy from Sentry Insurance Company (Sentry) which covered all University of New Mexico property. Rutherford was added to this policy by the following special endorsement:\\nIt is agreed that policy is amended to include George A. Rutherford, Inc. as Additional Named Insured as his interest may appear. General Contractor for purposes of modifying Arena Complex. All other terms and conditions remain unchanged. (Emphasis added.)\\nDuring the course of the modification, one of Rutherford's employees ignited a fire in the arena while using a welding torch. The fire caused substantial damage to the super-structure of the arena itself, but it did not damage any portion of the arena where the expansion and remodeling were going on. Sentry paid the Regents the sum of $370,020.46.\\nAfter paying the loss, Sentry filed this subrogation action against Rutherford seeking recovery thereof on the theory that the negligence of Rutherford and its employees had caused the fire and attendant damage to the arena. In its answer, Rutherford asserted that it was not liable under a subrogation theory because it was a named insured under the Sentry-Regents policy. Sentry moved to strike this defense. A hearing was held on this motion and an order was entered granting the motion to strike. Rutherford took an interlocutory appeal from this order.\\nThe issue is whether the language \\\"as his interest may appear\\\" extends insurance coverage to the full value of the arena or only to that part of the arena being expanded and modified.\\nIn our opinion, the plain meaning of the language \\\"as his interest may appear,\\\" does not affirmatively support either position. In addition, the only evidence in the record is presented through three affidavits. These affidavits are very short and do not indicate the intent of the contracting parties at the time the endorsement was drawn up. The record does indicate that the parties negotiated over the language, but details as to these negotiations were not supplied.\\nTherefore, it is the opinion of this Court that the decision of the trial court be reversed and the case be remanded for the purpose of obtaining evidence that will more clearly reveal the intention of the parties pertaining to those negotiations.\\nIT IS SO ORDERED.\\nPAYNE and FEDERICI, JJ., concur.\"}"

nm/1557137.json

@@ -0,0 +1 @@
+"{\"id\": \"1557137\", \"name\": \"RUIDOSO STATE BANK, Plaintiff-Appellant, v. Danny GARCIA and Lillian Garcia, Defendants-Appellees\", \"name_abbreviation\": \"Ruidoso State Bank v. Garcia\", \"decision_date\": \"1978-11-30\", \"docket_number\": \"No. 11950\", \"first_page\": \"288\", \"last_page\": 291, \"citations\": \"92 N.M. 288\", \"volume\": \"92\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T17:09:56.278497+00:00\", \"provenance\": \"CAP\", \"judges\": \"McMANUS, C. J., and SOSA, J., concur.\", \"parties\": \"RUIDOSO STATE BANK, Plaintiff-Appellant, v. Danny GARCIA and Lillian Garcia, Defendants-Appellees.\", \"head_matter\": \"587 P.2d 435\\nRUIDOSO STATE BANK, Plaintiff-Appellant, v. Danny GARCIA and Lillian Garcia, Defendants-Appellees.\\nNo. 11950.\\nSupreme Court of New Mexico.\\nNov. 30, 1978.\\nRonald G. Harris, Ruidoso, for plaintiff-appellant.\\nStagner, Higginbotham & Oas, Ronald Higginbotham, Keith R. Oas, Roswell, for defendants-appellees.\", \"word_count\": \"1233\", \"char_count\": \"7422\", \"text\": \"OPINION\\nEASLEY, Justice.\\nRuidoso State Bank seeks replevin, under security agreements, of two vehicles owned by Danny and Lillian Garcia. The Bank had previously obtained a default judgment in this case on promissory notes and had levied on the two vehicles. However, the Garcias claimed an exemption and the district court released the vehicles. The trial court denied the writ of replevin. The Bank appeals.\\nThe issues are:\\n1. Is the Bank precluded from replevying the vehicles under the security agreements by having first sued on the debt and having obtained a default judgment thereon?\\n2. Did the Bank's security interest in the two vehicles \\\"merge\\\" into the judgment for the debt?\\nThe Bank's complaint asked for judgment on two promissory notes covering loans on an automobile and a truck owned by the Garcias, upon which the Bank also had security agreements. However, the complaint did not seek to foreclose the security agreements. Default judgment was entered. Thereafter the Bank filed an affidavit in replevin seeking possession of the vehicles pursuing to its security agreements. There were allegations that the automobile was \\\"consumer goods\\\" and that the truck was used for business. The court denied the writ and concluded that the Bank, by suing on its debt instead of foreclosing its security agreements, had elected its remedy under the New Mexico Uniform Commercial Code and was therefore precluded from pursuing its collateral through a replevin action. The trial court further concluded that the security agreements had merged into the judgment on the notes.\\nThe New Mexico Uniform Commercial Code provisions are controlling in this case. Section 50A-9-501(l), N.M.S.A.1953 (Supp.1975) states:\\nWhen a debtor is in default under a security agreement, a secured party has the rights and remedies provided in this part and except as limited by subsection (3) those provided in the security agreement. He may reduce his claim to judgment, foreclose or otherwise enforce the security interest by an available judicial procedure. . The rights and remedies referred to in this subsection are cumulative. (Emphasis added.)\\nThere is nothing ambiguous about this statutory provision. It plainly states that the remedies of proceeding on the note and the security agreement are cumulative. Each of them remains in force although efforts may have been made to collect the debt by the alternate means. 2 G. Gilmore, Security Interests in Personal Property \\u00a7 43.7, at 1209-10 (1965). The comments under U.C.C. \\u00a7 9-501 indicate that a judgment lien acquired by a secured creditor creates no new interest in the creditor but is instead a continuation of the original interest created by the security agreement. 3 Uniform Laws Anno., U.C.C. \\u00a7 9-501, Comment 6 (1978 Pamphlet at 138). Section 50A-9-501(5) provides that:\\n[ T]he lien of any levy which may be made upon [the] collateral by virtue of any execution based upon the judgment shall relate back to the date of the perfection of the security interest in such collateral.\\nIt was the obvious purpose of these sections to abolish the doctrine of election of remedies. In White and Summers, Uniform Commercial Code, \\u00a7 26-4 at 964-65 (1972) it is stated: t\\nUnder pre-Code law, courts often held that the secured creditor who sued on the debt irrevocably elected to seek his sole remedy by that method. Thus, the courts thought that a suit on the debt was inconsistent with a subsequent claim by the seller-creditor that he retained title to the goods under a conditional sales contract. The election of remedy issue arose early under the Code, and the Third Circuit held that the creditor could first recover in an action on the underlying obligation and if that proved unsuccessful, later enforce the security agreement.\\nSee In re Adrian Research & Chemical Co., 269 F.2d 734 (3d Cir. 1959); P. Coogan, Secured Transactions of the Uniform Commercial Code, \\u00a7 8.08(1) (1977).\\nThe Garcias' claim of merger of the debt into the judgment is not persuasive, considering that the statutes give the Bank two separate and independent causes of action. It has been held by this Court that a debt and a mortgage securing it are separate and independent causes of action. Flint v. Kimbrough, 45 N.M. 342, 115 P.2d 84 (1941). The recovery of a judgment for a debt, except to the extent that it has been satisfied, does not prevent later proceedings to enforce a mortgage or other lien given to secure its payment. This Court has held that the creditor is not deprived by the judgment of his right to resort to a fund, or to avail himself of a lien or security held for the debt. Tindall v. Bryan, 54 N.M. 114, 215 P.2d 355 (1950). Although the cause of action may be merged into the judgment, the debt may be carried forward to prevent the destruction of contract rights. Cabot v. First National Bank of Santa Fe, 81 N.M. 795, 474 P.2d 478 (1970).\\nMerger does not apply here for the reason that the Bank had two separate causes of action. It could sue and reduce the debt to judgment. In that case the debt would be merged into the judgment. However, the debt would be carried forward so that the Bank's rights under the security agreement would not be destroyed. The security agreements, under the statutory prohibition, would not be merged into the judgment.\\nThe Garcias claim that the 1971 amendment to the New Mexico Uniform Commercial Code, \\u00a7 50A-9-504(2), N.M.S.A.1953 (Supp.1975), prohibits the payment of a deficiency by the debtor in the event the creditor chooses to repossess the collateral. This section reads:\\n(2) If the security interest secures an indebtedness, the secured party must account to the debtor for any surplus, and, unless otherwise agreed, the debtor is liable for any deficiency, except, a debtor is not liable for any deficiency where the collateral involved is consumer goods.\\nThe Garcias claimed, and the trial court agreed, that by taking judgment first on the underlying obligation on consumer goods covered by a security agreement, the Bank forfeited its right to replevin the security, since the above statute prohibits taking a \\\"deficiency.\\\"\\nThis position is not sound for the reason that the 1971 amendment by its own terms contemplates a \\\"deficiency.\\\" There can be no deficiency unless there has been a repossession and sale of the consumer goods. Thus, until there has been a sale of the consumer goods in this case and an attempt made to collect any deficiency, the Garcias have not been harmed. At such time as an effort is made to collect a deficiency, if any, the Garcias will then have cause to complain insofar as it pertains to any consumer goods involved.\\nWe hold that the Bank is not barred under the doctrine of election of remedies from pursuing its remedies under the security agreements and that the security agreements were not merged into the judgment for the debt.\\nThe decision of the district court is reversed and the case is remanded. The court shall consider the replevin action of the Bank in conformity with the principles set out herein.\\nIT IS SO ORDERED.\\nMcMANUS, C. J., and SOSA, J., concur.\"}"

nm/1557938.json

@@ -0,0 +1 @@
+"{\"id\": \"1557938\", \"name\": \"JOHNSON v. CITY OF SANTA FE\", \"name_abbreviation\": \"Johnson v. City of Santa Fe\", \"decision_date\": \"1930-07-11\", \"docket_number\": \"No. 3437\", \"first_page\": \"77\", \"last_page\": 80, \"citations\": \"35 N.M. 77\", \"volume\": \"35\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T01:58:30.100091+00:00\", \"provenance\": \"CAP\", \"judges\": \"PARKER and CATRON, JJ., concur.\", \"parties\": \"JOHNSON v. CITY OF SANTA FE.\", \"head_matter\": \"[No. 3437.\\nJuly 11, 1930.]\\nJOHNSON v. CITY OF SANTA FE.\\n[290 Pac. 793.]\\nM. W. Hamilton, of Santa Fe, -for appellant.\\nE. P. Davies and W. A. Gillenwater, both of Santa Fe, for appellee.\", \"word_count\": \"1080\", \"char_count\": \"6461\", \"text\": \"OPINION OF THE COURT\\nWATSON, J.\\nIn an action for personal injuries against James Collier and the city of Santa Fe, appellee, plaintiff below, was awarded $10,000 damages upon findings and conclusions by the trial court. While going from her home to attend mass in the early morning, and in the dark, proceeding along Kentucky avenue in the city of Santa Fe, she fell into an open sewer trench excavated by defendant Collier for the city of Santa Fe. No service was had upon defendant Collier, and the judgment is against the city alone.\\nAppellant (the city of Santa Fe) first objects to the overruling of its demurrer to the complaint. The argument here is based upon the premise that defendant Collier was an independent contractor, and that, in' that situation, the allegations of the complaint failed to show the violation, of any duty resting upon the city, and particularly failed to show that the city had notice of any dangerous condition in the street.\\nWhile it did develop at the trial that Collier was an independent contractor, the fact does not appear upon the face of the complaint; the allegation being that he was \\\"employed\\\" by the city to construct the sewer. It may be true, as appellant argues, that this allegation left it uncertain as to whether Collier was the agent dr servant of the city, or whether he was an independent contractor. Yet, if the trial court construed this as an allegation that defendant Collier was the agent or servant of the city, this court, under the well established rule, would follow that construction. Demurrer is not the proper mode of attacking\\\" an allegation for indefiniteness and uncertainty. Upon the theory that Collier was the city's agent or servant, his knowledge of a dangerous condition would be the knowledge of the city, and it would be unnecessary to allege or prove actual knowledge. This objection must be overruled.\\nAppellant does not invoke a general review of the evidence, but calls attention to certain testimony elicited from appellee, to establish its contentions that the court erred in holding appellant guilty of negligence, and in holding appellee not guilty of contributory negligence. Appellee admitted that for several days she had observed the excavating machine approaching her home, digging its way along the street in question, and that on the pre ceding two mornings, but later, she had passed the machine on that street on her way to mass. She also admitted that at the time of the accident she carried prayer book and rosary, and was saying her prayers.\\nWe need not question appellant's legal proposition that, where negligence consists in failure to warn of a dangerous condition, actual knowledge by the party injured is equivalent to warning, and that disregard of the known danger, rather than failure to warn, should in such case be deemed the proximate cause.\\nNor need we question that one who knows the dangerous condition of a street, and chooses to traverse it in preference to a safe street reasonably convenient, and who, moreover, proceeds with a preoccupied mind, and without caution commensurate with the known danger, will be deemed contributorily negligent as matter of law.\\nWe cannot agree, however, that the facts relied on make a case under either of these principles so clear that reasonable minds might not fairly differ on the questions of negligence and of contributory negligence. The street was left open to traffic. It had been constantly used. There was a passage which others had used and which appeared to appellee to be safe. Appellee does not admit that she had observed or was conscious of a particular danger. There is nothing in the testimony relied on to disclose that she had reason to anticipate encountering an open and unlighted excavation. Nor is the fact that she was saying prayers at all conclusive that her mind was so preoccupied as to render her heedless of danger. These conclusions of the trial court cannot be disturbed.\\nAppellant contends that the damages are excessive. They are based on findings of permanent injury, resulting in reduction of earning capacity from $150 to $20 per month; appellee's age having been approximately sixty, and her expectancy approximately fourteen years. Counsel argues that it was not reasonable to anticipate that appellee's then earning power would continue throughout her expectancy. But, even if it should, he says, the sum of $9,835, that portion of the judgment based upon decreased earning capacity, would have been excessive.\\n\\u2022On just -what basis counsel so concludes, we are not advised. The purchase of an annuity of $1,560 ($130 per month) at age sixty, would seem to call for approximately $18,000. The Americana, vol. 2, p. 3. If our calculation is correct, a fund of $9,835 kept invested at 5 per cent, would exhaust itself in less than eight years in meeting annual payments of $1,560.\\nIt is contended that a loss of $85 per month is the most that the evidence discloses. Even so, nearly $12,000 would be required to purchase an annuity of $1,020 during appellee's expectancy, and $9,835 invested at 5 per cent, would be exhausted by such payments in less than .fourteen years.\\nThe damages seem to be liberal, but, admitting the permanency of the injury, not beyond the limits of the trial court's reasonable discretion.\\nDr. Livingston, for appellee, answering a hypothetical question, stated that the injury would probably be permanent. Dr. Fiske, for appellant, after examination at the time of the trial, considered that from the physical standpoint it was not permanent; that it afforded no reason for inability to work; that her \\\"complaints, the things she complains of, are entirely subjective\\\"; that he could not state definitely \\\"whether those (complaints) have a foundation\\\" ; that \\\"there may be some injury to the peripheral nerve\\\"; that she still has sensation of pain and \\\"it may\\\" indicate \\\"a permanent injury to that part of the nerve in that location.\\\" We cannot say that this evidence, in connection with other evidence, in the case, does not substantially support the conclusion of permanency of injury.\\nFinding no error, we affirm the judgment and remand the cause. It is so ordered.\\nPARKER and CATRON, JJ., concur.\\nBICKLEY, C. J., and SIMMS, J., did not participate.\"}"

nm/1558003.json

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+"{\"id\": \"1558003\", \"name\": \"STATE v. BELL\", \"name_abbreviation\": \"State v. Bell\", \"decision_date\": \"1930-07-17\", \"docket_number\": \"No. 3511\", \"first_page\": \"96\", \"last_page\": 97, \"citations\": \"35 N.M. 96\", \"volume\": \"35\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T01:58:30.100091+00:00\", \"provenance\": \"CAP\", \"judges\": \"PARKER and CATRON, JJ., concur.\", \"parties\": \"STATE v. BELL.\", \"head_matter\": \"[No. 3511.\\nJuly 17, 1930.]\\nSTATE v. BELL.\\n[290 Pac. 739.]\\nAlbert Morgan, of Portales, for appellant.\\nM. A. Otero, Jr., Atty. Gen., and E. C. Warfel, Asst. Atty. Gen., for the State.\", \"word_count\": \"301\", \"char_count\": \"1703\", \"text\": \"OPINION OF THE COURT\\nSIMMS, J.\\nAppellant was convicted of possessing a still for manufacturing intoxicating liquor.\\nHis first ground of appeal seems to be that there is no testimony in the record which points to his guilt. We think there was sufficient evidence to go to the jury and, under our unbroken line of authorities on this question, we will not disturb the verdict.\\nAppellant next finds fault with the action of the trial court in allowing a witness to testify as to what he saw on June 3d, when the crime is charged in the indictment to have been committed on June 14th. The statute permits proof any time within the period of limitation. Section 35-4410, Comp. St. 1929.\\nFinally, appellant complains that peace officers who were looking for another party came to his house and looked in, finding, as they testified, the still and apparatus in question. Appellant says that without a search warrant to justify such action, the officers had no right to thus violate his habitation, and their testimony as to what they saw was not admissible. In the case of State v. Watts et al., 290 P. 738, this day decided, we have held that such testimony is not rendered inadmissible because of lack of a search warrant. See State v. Dillon, 34 N. M. 366, 281 P. 474.\\nThere are other matters presented which we do not consider require discussion. We conclude that the judgment of the lower court should be affirmed, and it is so ordered.\\nPARKER and CATRON, JJ., concur.\\nBICICLEY, C. J., and WATSON, J., did not participate.\"}"

nm/1559091.json

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+"{\"id\": \"1559091\", \"name\": \"JACKSON v. GALLEGOS et al.\", \"name_abbreviation\": \"Jackson v. Gallegos\", \"decision_date\": \"1934-03-02\", \"docket_number\": \"No. 3760\", \"first_page\": \"211\", \"last_page\": 225, \"citations\": \"38 N.M. 211\", \"volume\": \"38\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T02:11:31.441078+00:00\", \"provenance\": \"CAP\", \"judges\": \"WATSON, C. J., and HUDSPETH, BIOKUEY, and ZINN, JJ., concur.\", \"parties\": \"JACKSON v. GALLEGOS et al.\", \"head_matter\": \"30 P.(2d) 719\\nJACKSON v. GALLEGOS et al.\\nNo. 3760.\\nSupreme Court of New Mexico.\\nMarch 2, 1934.\\nBarker & Fahy and J. O. Seth, all of Santa Fe, for appellants.\\nGilbert & Hamilton, of Santa Fe, for appellee.\", \"word_count\": \"6866\", \"char_count\": \"40335\", \"text\": \"SADLER, Justice.\\nThis case is before us on motion for rehearing. We deem it convenient to withdraw the opinion heretofore handed down and to substitute the one to follow therefor.\\nPlaintiff (appellee before us) sued in the district court of Rio Arriba county to quiet title to a portion of the Juan J\\u00f3se Lobato land grant located in said county, naming innumerable defendants including the own ers of the Polvadera land grant who are sole appellants here and will be referred to herein as defendants.\\nThe complaint, which was one in ordinary-form to quiet title, set forth numerous exceptions, embracing all those contained in the decree of confirmation and patent as well as additional exceptions. These defendants appeared and filed their -answer and cross-complaint. The plaintiff filed his answer to defendants' cross-complaint and the cause thus proceeded to trial.\\nAt the trial plaintiff's counsel read into the record a stipulation of the parties made at or prior to the date of trial.\\nLargely it contained reciprocal- agreements on the part of each as to date of the other's grant, of juridical possession thereunder, time of confirmation by the United States Court of Private Land Claims and of issuance of United States patent pursuant thereto; also stipulations with reference to present ownership by the parties of the grant titles and an admission on the part of each that the other's grant lines as originally made embraced the overlap, the lands at issue between them. It was also stipulated that each was an individual grant of a specific tract, neither being a community grant nor what is known as a \\\"float,\\\" having reference to undescribed and unloeated lands. Portions of the stipulation w-ill be adverted to more in detail hereinafter as occasion demands.\\nHaving introduced the stipulation into the record, the plaintiff rested. Thereupon the defendants interposed a motion to dismiss which was in effect a demurrer to the evidence, as follows:\\n\\\"Air. Fahy: The plaintiff having rested on the stipulated facts, the defendants move for judgment of dismissal as against the defendants Emmet Wirt, Katherine Long Garcia and J. Cristobal Gomez, Administrator of the estate of Felix Garcia; the defendants move for judgment of dismissal against them and also judgment on their cross-complaint against the plaintiff for the reason that the stipulation shows that these defendants are the owners of the paramount prima facie title.\\\"\\nThe court denied -both motions, whereupon the defendants proceeded and without objection from plaintiff to introduce evidence consisting of an abstract of title containing among other things proceedings in a suit in partition and to quiet title to the Polvadera grant out of which arose a special master's deed relied upon by defendants. Likewise and without objection from plaintiff that the issue was immaterial, the defendants introduced the oral testimony of several witnesses in support of their claim of title by adverse possession. Defendants having rested their case, the plaintiff questioned the sufficiency of the evidence to establish title by adverse possession by a demurrer to the evidence upon the following grounds, to wit:\\n\\\"Mr. Gilbert: Plaintiff demurs to the evidence on the ground it does not show continuous adverse possession and exclusive adverse possession or visible adverse possession during any of this period of time.\\\"\\nContemporaneously with the interposition of the demurrer,' the defendants renewed their motion for dismissal of the complaint and judgment on their cross-complaint urged at the close of the plaintiff's case in chief. 'The plaintiff's demurrer to the evidence was sustained and the motion of defendants was denied. Thereafter a final decree embracing certain findings and conclusions was entered in favor of plaintiff. The present appeal seeks a revision and correction of that decree.\\nWe are confronted at the threshold of this case with defendants' claim of error predicated upon the court's action in overruling their motion to dismiss and for judgment upon their cross-complaint interposed when plaintiff rested his case in chief and renewed at the close of defendants' case. If defendants' position upon this question (be correct, the other points need not be considered. It is urged with great earnestness that by reason of plaintiff's omission to prove that the overlap, the land to which plaintiff sought to quiet title as against defendants, constituting as it does only a part of the Lobato grant, was not within any of the exceptions withheld from said grant by the patent, or subsequently existing as enumerated in the complaint, there was a fatal failure of proof entitling defendants to a dismissal of plaintiff's complaint and judgment on their cross-complaint. The rule invoked is that applied in Maxwell Land Grant Co. v. Dawson, 7 N. M. 133, 34 P. 191; Id., 151 U. S. 586, 14 S. Ct. 458, 38 L. Ed. 279, the reason for which is well stated in Stephens v. Terry, 178 Ky. 129, 198 S. W. 768.\\nIf upon the merits of the point, we should agree with defendants in their view of the proof, still whether as a foot the 9,500-acre overlap is within or without the exceptions from plaintiff's grant, nowhere appears except as its location within the exceptions may be surmised from plaintiff's failure to prove that it lies outside them.\\nThe plaintiff, although arguing at length that under the stipulation and pleadings there was no such failure of proof, questions defendants' right to review the point since the claimed defect in proof .was not pointed out -specifically in the motion to dismiss. See Blacklock v. Fox, 25 N. M. 391, 183 P. 402. Counsel for defendants insist that their motion, in effect a demurrer to the evidence, challenged the sufficiency of plaintiff's evidence as a whole and renders available the point urged. And it may be inquired, as to the particular defect here claimed, whether within the rule applied in Schaefer v. Whitson, 32 N. M. 481, 259 P. 618, the same might be noticed as a matter of fundamental error.\\nBut in view of our conclusion that a new trial should follow our reversal of the trial court's ruling on the issue of adverse possession hereinafter discussed, we are of opinion that upon such retrial and in furtherance of justice the case should be open for additional proof upon this issue. We are therefore disposed to forego a decision of the question embraced in this otherwise serious point. We apprehend that upon s\\u00fcch retrial this issue will be resolved by affirmative proof rather than a mere failure thereof. Thus no injustice can prevail as conceivably might were the question made decisive on the present state of the proof.\\nOne of the initial points presented for decision before passing to other questions is involved in the determination whether, aside from its subsequent loss (if the subsequent loss of either title can be considered under the stipulation), the Juan Jose Lobato grant or the Polvadera grant has the superior title to the area within an overlap of the boundaries of the two grants, which conflict is conceded by both parties to exist.\\nThe facts raising this issue are these: The Juan Jose Lobato grant has priority of grant and of delivery of juridical possession from the kingdom of Spain. The Polvadera grant has priority of confirmation by the United States Court of Private Land Claims and of patent from the United States pursuant thereto. The stipulation embraces a reciprocal agreement on the part of each that the other's grant covered all lands within the conflict and was a valid and perfect grant, except in so far as its validity may, as a matter of law, have been affected, as to the Lobato, by the subsequent grant of the Polvadera and its earlier confirmation and patent; and, as to the Polvadera, by the-priority of grant possessed by the Lobato.\\nThe plaintiff relies upon Territory v. Delinquent Tax List, 12 N. M. 62, 73 P. 621; Territory v. Delinquent Tax List, 12 N. M. 169, 76 P. 316; Board of Trustees of Cebilleta de la Joya Grant v. Board of Trustees of Belen Land Grant, 20 N. M. 145, 146 P. 959; Id., 242 U. S. 595, 37 S. Ct. 215, 61 L. Ed. 514; Board of Trustees v. Brown, 33 N. M. 398, 269 P. 51; U. S. v. Percheman, 7 Pet. 51, 8 L. Ed. 604; Trenier v. Stewart, 101 U. S. 797, 25 L. Ed. 1021; Ainsa v. N. M. & Ariz. R. R. Co., 175 U. S. 76, 20 S. Ct. 28, 44 L. Ed. 78; Henshaw v. Bissell, 18 Wall. 255; 21 L. Ed. 835; and Interstate Land Co. v. Maxwell Land Grant Co., 139 U. S. 569, 11 S. Ct. 656, 35 L. Ed. 278, in support of his claim to superiority of title under these, facts. The authorities relied upon abundantly sustain his position. We therefore hold the Lobato grant and the owner thereof to have the superior title to the area in conflict in so far as determined by the facts mentioned in connection with our discussion of this question.\\nThe plaintiff insists that when we have decided the question just determined, we have passed upon the sole question submitted for our determination by the stipulation, saying:\\n\\\"Its determination will dispose of all of the issues herein, when considered in connection with the stipulated fact that tooth the parties hereto were, at the time of the filing suit and at the time of trial, the owners of all of the rights, titles and interests in their respective grants which were originally vested in the grantees and confirmees thereof.\\\"\\nAlthough the weight of this argument is directed against defendants' right under the stipulation to rely upon the decree in the quieting title suit as res adjudicata and to claim under a certain tax title purchased by defendants' predecessors in interest which was disclosed and adjudged valid in the partition proceedings, the construction urged,- if sustained, as effectually eliminates defendants' claim of adverse possession as it does the other two assertions of title. In urging that a determination of the superiority of grant titles when considered in connection with the stipulation disposes of all the issues, the plaintiff's argument necessarily embraces the issue of adverse possession. Indeed, it would, be fatal to the construction contended for by .plaintiff to concede that adverse possession was properly triable under the stipulation while res adjudicata and the tax title were not.\\nIn urging his construction of the stipulation, the plaintiff invokes the language of paragraph 7 thereof reading as follows:\\n\\\"That the plaintiff herein has, and at the date of the commencement of this -suit had acquired, and is and then was the owner of all of the right, title and interest acquired by said Juan Jose Lovato in and to said Juan Jose Lovato Grant, and had acquired and is the owner of all of the right, title and interest therein and thereto of the persons to whom said grant was confirmed and patented as aforesaid.\\\"\\nPlaintiff then inquires:\\n\\\"How can appellants be permitted to stipulate in one breath that appellee was the owner of all of the right, title and interest of the original grantees and confirmees, and in the next be heard to claim that such interest had been divested by court decree against 'unknown claimants' in the interim?\\\"\\nThe position of defendants is that the stipulation was never intended to and did not preclude any proof, if it could be adduced, \\\"that the grant titles (the facts in regard to which alone the stipulation relates) had been lost \\u2014 either by adverse possession, decree of court, tax sale, or in any other manner.\\\"\\nThe defendants then, in support of their construction of the stipulation as just expressed, assert that the plaintiff's present interpretation is invoked for the first time in this court and was not urged or relied upon in the court below. The record seems to support them in this statement. They contend that the course of proceedings at the trial was based upon their construction of the stipulation. From the record it appears the defendants introduced in evidence, without objection from plaintiff, a voluminous abstract of title. It contained, among other things, a transcript of the proceedings in a suit in partition and to quiet title out of which there arose a special master's deed of the Polvadera grant to defendants. They rely upon the decree in that suit as res adjudicata upon the plaintiff and also rely upon the tax title of their predecessors adjudged valid in the quieting title and partition suit.\\nAlso, without objection from plaintiff that the thing sought to be proved by them was immaterial under the stipulation, the defendants produced and examined, and had subjected to cross-examination by plaintiff, numerous witnesses, in support of their claim of title by adverse possession. Plaintiff demurred to this evidence upon the ground that it failed in three named and essential respects to show title by limitations. The court sustained the demurrer and found and adjudicated that defendants had not \\\"acquired title to any of the properties at issue between tbe plaintiff and said cross-complainants by adverse possession, or otherwise.\\\" (Italics ours.)\\nIf tbe construction now urged upon us by plaintiff be the correct one, and we are willing to agree the stipulation is fairly susceptible of such a construction, the time of both court and counsel was thus wasted in hearing a false issue. It must have been the view of the court and all parties below that the claim of title by adverse possession was open to defendants under the pleadings and stipulation. Otherwise objection would have been raised to litigating the issue. Either that, or plaintiff Iby his conduct at the trial in consenting to litigate this issue, thereby waived so much of the stipulation as might otherwise have denied the right. Under either view, we hold the question of defendants\\\" title by adverse possession is not eliminated by the stipulation. A like conclusion follows as to the issues of res adjudieata and the tax title in so far as it is claimed they are eliminated by the stipulation.\\nThe defendants predicate errors upon the trial court's failure to hold the decree in the suit to partition and quiet title, disclosed in the abstract, res adjudieata of the questions sought to be litigated by plaintiff in the present suit; likewise, upon the trial court's failure to hold defendants to be owners of the land involved under a tax sale to their predecessors in interest, established and adjudged valid in said partition suit. Whatever was before the court in the instant case on the question of the tax sale appeared in the abstract as a part of the proceedings in the partition suit, and not through independent proof. Hence, so far as the present record stands, it must be apparent that unless plaintiff were a party to the quieting title and partition suit, he is not bound by the decree therein either upon the theory of res adjudieata, or by virtue of the tax title.\\nWaiving for the moment questions raised against the competency as proof of any and everything appearing in the abstract, some of which presently will be determined, we are confronted w.ith three objections by plaintiff to the availability to defendants of res adjudieata either defensively or as a basis for affirmative relief. They are (1) that it was not pleaded; (2) that it was not proven; and (3) that it was not ruled upon by the trial court.\\nAs to the first objection, we think the absence of a pleading to support the proof offered was waived and a consent to litigate resulted when plaintiff without objection stood by and saw the abstract containing at length the proceedings and decree in the quieting title suit admitted generally. See 49 C. J. 828; Canavan v. Canavan, 17 N. M. 503, 131 P. 493, Ann. Cas. 1915B, 1064; Nikolich v. Slovenska, etc., 33 N. M. 64, 260 P. 849.\\nAlthough counsel for defendants have pressed cogently the contention that by their proposed finding of title in defendants and through exceptions to the trial court's finding of title in plaintiff, they brought directly and specifically to its attention their reliance upon their record title as disclosed by the abstract, thus, as asserted, meeting the third objection, supra, we think our observations on the second objection, viz., that res adjudicata was not proven, will dispense with a decision of the third or last one.\\nThere is nothing in the record to show that plaintiff held under any of the named defendants in the partition and quieting title suit. Nor, so far as the record discloses, was any effort made to show the existence of facts warranting a designation of him, or his predecessors in interest, as defendants to said suit under the style of \\\"unknown claimants of interest\\\" in the Polvadera grant. Absent such showing, it is earnestly insisted by plaintiff that the decree in the quieting title suit is wholly inoperative and ineffective as to him. He cites 34 C. J., pages 1067 and 1078, to the point that the burden was -upon defendants invoking the decree to place plaintiff in privity with it.\\nWhile these objections to the decree's effect upon plaintiff are serious, striking down as they do, if sustained, defendants' claim of res adjudicata, as well as the assertion of title under the tax sale, the position of defendants with respect thereto is not unlike that of plaintiff with reference to the first point discussed, viz., the claimed defect in plaintiff's- proof through failure to show that the overlap was not within any of the exceptions carved from the Lobato grant. Here, -as there, we are asked to foreclose the claims through a failure on the part of those invoking them to sustain a burden of proof assertedly resting upon them. The same considerations which -moved us to pass a decision of the point mentioned and leave the question open at the new trial for further proof, if it exists, direct a like course here and it is so ruled.\\nThe defendants, among other things, rely upon title secured through their purchase of the Polvadera grant at a special master's sale held July 12, 1918 (and subsequently confirmed), under the decree in the suit to partition and 'quiet title to said grant, and a special master's deed, dated July 29, 1918, issued pursuant thereto. These facts also are proven, if at all, by the abstract. It is insisted that the sole warrant for the admissibility of said abstract is to be found in 1929 Comp. \\u00a7 45-615, making an abstract of title to real estate in New Mexico, \\\"certified to as correct,\\\" etc., receivable in evidence in all courts of the state \\\"as evidence of the things recited therein, in the same manner, and to a like extent, that the public records are now admitted,\\\" etc.\\nThe sufficiency of the certificate to entitle this abstract to reception in evidence under the statute is assailed in two respects, first, as excepting from operation thereof \\\"conflicts, if any there be, with other Land Grants,\\\" and, second, as certifying to the correctness of the instruments abstracted as the same appear from the indices of the records of Santa Ee county, instead of Rio Arriba county, where the lands in controversy lie.\\nWe do not consider substantial either of the objections here urged for the first time against the admissibility or evidentiary value of the abstract. Plaintiff permitted it to go in evidence without objection. The reference to Santa Ee county records in the certificate is obviously a clerical error, resulting in the failure of a Santa Ee county abstractor preparing the abstract to change the name of the county to Rio Arriba in the form of certificate in common use by it. Every instrument abstracted refers to the records of Rio Arriba county as its source and without doubt the certificate was understood and considered by court and counsel as relating to the records of Rio Arriba county, as unquestionably it does.\\nIt is equally obvious that the exception in the certificate of conflicts, if any, with other land grants, when related to the land described in the caption and to what appears in the body of the abstract, does not except any land from operation of the certificate, but simply excludes therefrom the chain of title to any grant which conflicts with the one under search. That such is the effect of the exception is abundantly shown by the fact that the caption describes the land to be abstracted, as the Polvadera grant, as confirmed, surveyed, and patented, containing 35,761.14 acres. This is the total original acreage of the Polvadera embraced within its exterior boundaries, including conflict with the Lobato, and such is the acreage, without deduction, carried through the abstract as shown by instruments, court proceedings, and tax receipts. Hence, we conclude that the matters shown in the abstract are entitled to such evidentiary value, and such only, as is accorded them by the statute permitting the reception in evidence of a duly certified abstract\\nWe now come to the question of adverse possession. When defendants rested in their proof on this issue, the plaintiff interposed his demurrer to the evidence hereinabove set out. The demurrer was sustained by the court and its action in so doing is one of the points relied upon by defendants for reversal.\\nAs we view the matter from the record before us, in order to prevail upon their claim 'of adverse possession, the defendants must establish title under 1929 Comp., \\u00a7 83-119, as contradistinguished from title under section 83-122.\\nThe former recognizes title by adverse possession where any one shall have had possession for ten years of lands granted by the governments of Spain, Mexico, or the United States, holding or claiming the same by virtue of a deed or deeds purporting to convey an estate in fee simple. Payment of taxes for the period covered is not required under this statute. Under section 83-122, payment of taxes is required. While the abstract here in evidence shows payment of all taxes by defendants or their predecessors in interest on the Polvadera grant, including the overlap, for the year-s 1904 to 1926, both inclusive (the abstract having been certified shortly after further taxes became due), this would fall short by two years of showing tax payments for ten years after defendants began to hold under their special master's deed, admittedly good as furnishing color of title under section 83-122. Hence, although defendants pleaded title under both statutes, the failure to show tax payments for the full period of time required eliminates a consideration under the record before us of title under the last-mentioned statute.\\nIn proof of possession in their predecessors in interest prior to purchase by defendants at special master's sale, the defendants mainly rely upon the possession of a custodian of the Polvadera grant appointed by the court in the above-mentioned suit to partition and quiet title with authority to take possession, collect rentals, prevent depredations, and otherwise conserve the property. The facts tending to show such possession consist chiefly in a transcript of the proceedings in said suit such as the custodian's various reports of tenancies, collections, and disbursements. The plaintiff insists that the abstract of these reports is entitled to no more weight than would be the original court papers themselves, and that the latter would be mere hearsay as to him.\\nIn addition to the objection to the hearsay character of what the abstract- disclosed on the custodian's possession, the plaintiff also objects to it upon the ground that possession of the custodian cannot be demed to have been adverse to the true owner. It is to be borne in mind that all of these objections are urged here for the first time, the entire abstract going in evidence at the trial without objection of any kind.\\nPassing the question whether the custodian's possession was adverse to plaintiff, we do not deem it sufficient to establish a -prima facie showing of adverse title in defendants' predecessors in interest. The order appointing the custodian discloses that he was authorized to prevent depredations and rent the pasturage on the grant.\\nOver a period of twelve years from April, 1906, the date of his appointment, to August, 1918, following partition sale of the grant in July preceding, he filed only four reports; one in 1908, one in 1913, one in 1917, and the last in 1918. The first three reports as abstracted contained this information and nothing more: \\\"Said report covers receipts and. expenses in the case of said Polvadera Grant\\\" The last one alone contains a recitation of any of the contents of the report. It recites a lease, from June 1, 1918, to November 1, 1918. Except for that report there is nothing in any of them to disclose the extent or character of the custodian's possession, and particularly that it extended over the conflict.\\nPassing then to the question of defendants' showing of adverse possession dating from the time they began to hold under special master's deed evidencing their purchase at partition sale of the whole of the Polvadera grant, including the conflict, the pertinent facts which their evidence tends to establish are as follows: That one of the defendants and the predecessor in interest of the other two, purchased the entire Polvadera grant of 35,761.14 acres, including the overlap of 9,-510.9 acres, at a partition sale of said grant in July, 1918, for a cash consideration of $53,-641.71, or $1.50 per acre, which was duly paid. The special master's deed was dated July 29, 1918, and, after approval on August 2, 1918, was recorded in Book 21 \\u2014 A of deeds in Rio Arriba county on September 6, 1918.\\nIn addition, under the stipulation they were conceded to be the owners of the original grant title to the Polvadera except as plaintiff might show it to have been lost by subsequent events. The plaintiff's present suit to quiet title was instituted in the district court of said county on January 16,1930, and trial thereof was had on April 27th, of the same year.\\nThe area in conflict, the overlap, lay on the eastern side of the Polvadera. There is a conflict between the Lobato, grant and the town of Abiquiu grant, the Abiquiu conflict being one of the exceptions from the Lobato grant as confirmed and patented. The western boundary of the Abiquiu conflict forms the eastern boundary of the greater portion of the area within the overlap between the Polvadera and the Lobato grants. The Cerro Pelado or Pelado Mountain lies almost in the center of this overlap considered from the points of the compass in all directions. A little less than one-half the length of the overlap viewed longitudinally consists of a narrow rectangular shaped strip near the southern end of which lies the Yallecitos Peak referred to in the testimony of some of the witnesses.\\nIt was a matter of general repute and common opinion around the town of Abiquiu in the neighborhood of which the two grants lay that the area in conflict was an integral part of and belonged to the owners of the Polvadera grant. In fact none of the witnesses had ever heard of any dispute over ownership of the overlap except as knowledge thereof arose from institution of the present suit. It was the general understanding of the witnesses that the eastern boundary of the Polvadera \\\"common pointed,\\\" as some expressed it, or coincided, with the western boundary of the Abiquiu grant along the northerly half of the overlap, and that the Polvadera's eastern boundary lay easterly of, and embraced within the Polvadera, the Cerro Pelado; and was east of Valleeitos Peak along the southerly half thereof, such southerly half consisting of the narrow rectangular strip above referred to.\\nOne Simon Martinez, a witness for defendants, had grazed his cattle on the Polvadera, including the overlap, annually, for a period of nine years preceding the trial, under permits from defendants. During all of this time, as indicated, he was holding under the defendants. For so much of the time as transpired prior to 1926, he was in under a verbal permit from Felix Garcia, a copurchaser with defendant Wirt at the partition sale, granted to residents of Abiquiu owning live stock to graze their horses and cattle without exaction of rental. From 1926 to the time of trial, he , secured his grazing permits from J. M. O. Chavez, Jr., agent of the owners in charge of the Polvadera grant and paid rent to him.\\nOther particular tenants or permittees of defendants, and the years for which they occupied the grant, including the conflict, for the grazing of cattle, sheep, and horses, during the only seasons of the year in which it was capable of use, to wit, for spring and summer grazing, were J. M. C. Chavez, Jr., and Sostinos Suazo for 1921; Frank Bond, for lambing and grazing of sheep in 1922, 1923, and 1924; Alfredo Maestas for grazing of horses in 1925 and 1926; Pedro and Sostinos Suazo for grazing of sheep in 1928, 1929, and 1930. The use in the year 1930, of course, cannot avail defendants, since suit was instituted on January 16th of that year.\\nIn addition, one Pedro Suazo, under a permit claimed to have been issued to certain residents of Abiquiu for the grazing of their horses and cattle on the Polvadera without rental exactions, occupied the grant including the overlap annually from 1907 to the time of trial, for the grazing of his cattle, prior to 1926, without rental under the permit from the owners testified to, and from 1926 to the time of trial under rental arrangements made with, and rentals paid to, J. M. C. Chavez, Jr., as agent of the Polvadera grant.\\nOthers found on the interlock with their live stock during the period prior to 1926,' although the exact years are not fixed, claimed to the witness J. M. C. Chavez, Jr., to be there under leases from the owners of the Polvadera.\\nErom 1926 forward the witness, J. M. C. Chavez, Jr., acted as agent for the owners of the Polvadera, collecting rentals, preventing trespassing, and looking after the property generally. He \\\"patrolled\\\" the property about three times yearly. In addition, he and the owners permitted a squatter to remain on the grant in exchange for the small service of fixing up pastures and reporting trespassing. Chavez thought it unlikely that any one could get on Hie Polvadera with live stock and remain any appreciable time without discovery and having to account. He himself had grazed his stock on the overlap intermittently over many years, but always under arrangements with owners of the Polvadera, not the Lobato.\\nIndeed, those so using the overlap, as aforesaid, under permits or leases from defendants from the evidence appear to have been in exclusive occupancy thereof. They had never been interfered with or disturbed in their possession by the owners of the Lobato grant, nor so far as the record discloses was any assertion of adverse or hostile claim or title to the Overlap by the Lobato owners ever made during any of the period covered by the testimony of the witnesses, prior to the institution of the present suit. At some time prior to becoming agent for the Polvadera, the witness, Chavez, had acted as agent for the Lobato for a period of two years. During such period, he never took possession of the overlap nor presumed to grant leases thereon.\\nThe defendants and their predecessors in title show payment of taxes on the overlap, as well as the rest of the Polvadera grant, for a period of twenty-two years, from 1904 to 1926, both inclusive. The abstract was certified shortly after taxes for first half of 1927 became payable and tax payments are not shown beyond 1926.\\nContinuous and uninterrupted possession unmixed with that of the custodian and freed of the question raised as to the adverse character of the latter's possession thus appears to have been shown in defendants for a period of at least ten years immediately prior to the institution of suit, to wit, from 1920 to 1929, both years inclusive. Two questions, aside from the truth of the evidence which is con ceded upon demurrer, confront us as to its legal sufficiency.\\nThe first results from the fact that for at least two years of the period prior to 1926 the land in controversy was occupied by permittees of defendants without rental, to wit, 1920 and 1925. Rental was exacted from all occupants including these from 1926 forward. Pedro Suazo, a witness for defendants, was one of a group of Abiquiu residents owning live stock who through a personal emissary sent in such behalf secured permission from Felix Garcia, a cotenant of the property, to occupy the premises for the grazing' of their cattle and horses without rental payments. It was under the permission reported by such emissary as having been granted that this witness for some years prior and down to 1925 and others for the years intervening between 1920 and 1925 occupied and grazed the disputed area with their cattle and horses without rental exaction. The permission did not extend to the grazing of sheep and the evidence discloses that for several of the years prior to 1926 the Polvadera owners were receiving returns for the grazing of sheep on the property.\\nThe possession of the defendants through these permittees being otherwise sufficient we are unable to declare as a matter of law that the mere circumstance that they paid no rental destroys the efficacy of such possession. It is not as though the owners had thrown the land into a commons and later sought to take advantage of the possession of whomsoever by chance may have used it. The very fact that the permit was confined to grazing of cattle and horses and that during the greater portion of the permit-tees' occupancy without rental the owners were receiving rental from others for grazing of sheep precludes such a view.\\nHere those seeking the permission, certain live stock owners residing at Abiquiu, a small community near the property, delegated an emissary to secure it for them. There is nothing to indicate that the identity of these permittees on whose behalf the emissary spoke was not made known to the owners approached in their behalf. Everything suggests^ the contrary.\\nUpon principle we see no reason for denying to an adverse claimant the benefit of possession through a permittee or licensee unless some other reason than the mere fact that it is without rental be advanced to destroy its effectiveness. For the comparatively short period when the efficacy of defendants' possession depends solely upon the occupancy of such permittees, other considerations than a money rental may have been sufficient unto them to warrant their remission of a money rental. The evidence tends to show that for such period defendants' possession through the permittees was exclusive and continuous. The only other ground of attack raised by the demurrer is that it was not visible. It is here argued that it lacked visibility. But the payment of rental would not have rendered it. more visible. Nor does it seem the slightest inquiry by the Lobato owners of the occupants would have failed to disclose by what right they Claimed to occupy, the claimed right being eoncededly adverse.\\nThat possession by permission or license from an owner is in law deemed possession by the latter seems well settled. The licensee or permittee cannot claim adversely to such owner, the reason being that possession of the occupant under such circumstances is deemed possession of him upon whose pleasure it depends. 2 C. J. 131; Bergere v. Chaves, 14 N. M. 352, 366, 93 P. 762, 51 L. R. A. (N. S.) 50. We have recognized that less notoriety, and even less frequency of acts of ownership are required with possession under color of title than without it. Baker v. Armijo, 17 N. M. 383, 128 P. 73.\\nThe other of the two questions mentioned above as going to the legal sufficiency of possession through the permittees relates to the claimed hearsay character of the reputed granting of such authority as reported back to them by the emissary sent to secure it from the owners. We think, however, that quite apart from such emissary's report as evidence of its own truth, and we do not consider it for such purpose, the -evidence supports an inference that such authority had in fact been given. Upon the faith of it the permittees over a number of years continued to occupy and graze the premises without molestation from the Polvadera owners believing and asserting themselves to be there by authority of such owners. As early as April, 1922, the co-owner by whom such permit was claimed to have been granted made statements to a witness and permittee corroborative of the fact that a permit of the kind claimed had theretofore been granted. We do not feel that upon demurrer, where the evidence is to be viewed in the strongest aspect it will reasonably bear favorably to the party demurred against, it exceeds the bounds of legitimate inference to assume that the permission claimed was genuine and had in fact been given.\\nWe consider that as the evidence stood on the issue of adverse possession when the defendants rested, they had made a prima facie case under 1929 Comp., \\u00a7 83-119. The case was before the court upon a demurrer to the evidence. By demurring to the evidence the plaintiff admitted the truth of all of the defendants' evidence and of all legitimate inferences deducible therefrom.\\nIn Sanchez v. Torres, 35 N. M. 383, 298 P. 408, 409, dealing with the effect of a demurrer to the evidence, we said: \\\"Appellees consider this a question of fact to be reviewed under the substantial evidence rule. They argue that the trial judge may not and should not have believed some of the testimony. Their position is unsound. They demurred to the evidence. Under the rule well established in this state, even though this was a non-jury case, they admit the truth of all the testimony and of all legitimate inferences therefrom. Union Bank v. Mandeville, 25 N. M. 387, 183 P. 394; Bezemek v. Balduini, 28 N. M. 124, 207 P. 330; Horchheimer v. Prewitt, 33 N. M. 411, 268 P. 1026; Martin v. Village of Hot Springs, 34 N. M. 411, 282 P. 273. So, the question before us is whether, giving full credit to the witnesses, full weight to the evidence, and making proper inferences therefrom, a judgment for the plaintiffs could have been sustained.'\\nThe land in dispute was rough, broken grazing land. The evidence tended to show that it was devoted by defendants to the only use to which it was adapted, the grazing of live stock, during the only seasons of the year when it was capable of such use, the spring and summer. See Johnston v. City of Albuquerque, 12 N. M. 20, 72 P. 9; Baker v. Armijo, supra; G O S Cattle Co. v. Bragaw's Heirs, 38 N. M. 105, 28 P.(2d) 529, and 1 R. C. L. 694. The good faith of their claim is attested by the fact that they paid for the area of the conflict a sum in excess of $14,000. The evidence further tends to show them, from the time of their purchase to time of trial, in possession through tenants and permittees, exercising every incident of dominion, control, and ownership, without interference or disturbance by plaintiff, until the filing of the present suit, which was more than ten years after the defendants' purchase and entry into possession.\\nWe are not unmindful of the rule upon the quantum of evidence as stated in Montoya v. Catron, 22 N. M. 570, 166 P. 909. We do dot understand that what we there said in applying the substantial evidence rule to support findings made is to deny trial courts the aid of the law of inferences in trying titles based upon adverse possession. If so, the rule for our guide in testing the correctness of a trial court's ruling upon demurrer to the evidence, as laid down in Sanchez v. Torres, supra, will have to be modified in its application to cases of adverse possession by eliminating therefrom the condition that there is to be taken as true, not only all the testimony demurred to, but also \\\"all legitimate inferences therefrom.\\\"\\nIt follows from what has been said that the judgment of the trial court must be reversed. The cause will be. remanded to the district court with directions to set aside the judgment heretofore rendered and award a new trial.\\nIt is so ordered.\\nWATSON, C. J., and HUDSPETH, BIOKUEY, and ZINN, JJ., concur.\"}"

nm/1559212.json

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+"{\"id\": \"1559212\", \"name\": \"AMBROSE et ux. v. REPUBLIC MORTGAGE CO.\", \"name_abbreviation\": \"Ambrose v. Republic Mortgage Co.\", \"decision_date\": \"1934-06-25\", \"docket_number\": \"No. 3911\", \"first_page\": \"370\", \"last_page\": 372, \"citations\": \"38 N.M. 370\", \"volume\": \"38\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T02:11:31.441078+00:00\", \"provenance\": \"CAP\", \"judges\": \"WATSON, C. J., and SADLER, BICKLEX, and ZINN, JJ., concur.\", \"parties\": \"AMBROSE et ux. v. REPUBLIC MORTGAGE CO.\", \"head_matter\": \"34 P.(2d) 294\\nAMBROSE et ux. v. REPUBLIC MORTGAGE CO.\\nNo. 3911.\\nSupreme Court of New Mexico.\\nJune 25, 1934.\\nMcIntosh & Chavez, of Santa F\\u00e9, for appellant.\\nMann & Wilson, of Albuquerque, for appellees.\", \"word_count\": \"951\", \"char_count\": \"5560\", \"text\": \"HUDSPETH, Justice.\\nThis is an appeal from an order overruling a motion to set aside a default judgment.\\nOn April 18, 1932, appellees executed in favor of appellant a negotiable note for $2,000, payable in forty equal monthly installments, the first of which was due on May 18, 1932. The note was secured by a mortgage on certain described real estate located in McKinley county and by a pledge to appellant of a savings certificate issued by appellant. In December of 1932, appellees sought to retire said note by applying thereto credits due them on the savings certificate and paying the balance in cash. The parties were, however, unable to agree as to the cash surrender value of the certificate, and on February 10, 1933, appellees began suit to obtain an adjudication thereof. Thirty-one days after the service of summons upon appellant, appellees obtained a default decree ordering appellant to credit appellees with the value of the savings certificate as fixed by the court, to accept the cash deposited in the registry of the court by appellees in full satisfaction of the note, to surrender said note and to release of record the mortgage securing said note. Four days later appellant moved to vacate the decree rendered.\\nIn addition to setting forth the circumstances explanatory of defendant's failure to answer seasonably and to alleging facts in de fense of tlie suit on its merits, appellant alleged in its moving papers that it was not then, nor had it been at the time of the commencement of the suit, the holder of the note and mortgage. Attached to the motion as exhibits were photostatic copies of the note and mortgage showing an assignment by indorsement of the note and a duly recorded assignment of the real estate mortgage on May 16, 1932, to the Republic Building & Loan Association. It was further alleged that, in the event the decree should be vacated, the Republic Building & Loan Association, the assignee and present holder of the note and mortgage, desired and intended to .intervene in the present suit, to which it had not been made a party.\\nThe admitted facts are that, promptly upon the service of summons, appellant employed counsel to represent it in the litigation; that two conferences were held by the attorneys for the respective parties looking to a settlement ; that in the last conference the matter of the time which appellant might have within which to file an answer was mentioned. The recollections of the attorneys as to the substance of their conversation on this subject differ, but it is agreed that the subject was discussed. On March 13th, the date upon which the time prescribed by statute for the filing of answer expired, appellant's attorney wrote to the attorneys for appellees requesting ten days' additional time within which to make answer. The default judgment was entered the next day.\\nAppellant's counsel was negligent in failing to file an appearance within the time prescribed by statute. In Gilbert v. New Mexico Construction Co., 35 N. M. 262, 295 P. 291, we refused to reverse an order vacating a default judgment upon the prompt application of a defendant who had negligently permitted the deei'ee to be entered. The basis of the decision was that the granting of such motion to vacate a default judgment and perixxit the interposition of a defense was, by virtue of section 105-801 of the 1929 Compilation, a matter within the discretion of the tx-ial court, and that that discretion was not defeated by the fact that defendant's failure to appear was negligent. We are not prepared, on the basis of anything said in that case, or in the later case of Dyne v. McCullough, 36 N. M. 122, 9 P.(2d) 385, cited in the briefs, to hold it an abuse of discretion for a trial court to refuse, because of defendant's negligence, to grant a prompt application to set aside a default. To so hold would nullify the provisions of section 105-303 of the 1929 Compilation. Exit the trial court's discretion, though wide and not lightly to be interfered with, is not limitless, and there are circumstances under which a refusal to vacate would be an abuse of discretion. We believe the instant case presents an instance of such circumst\\u00e1nces. The holder of the note and mortgage, not having been made a party to the proceeding, is admittedly not bound by the decree entex'ed, and the natui'e of the deci'ee rendered is sxxch that coxxtempt of court is the only possible device by which its enforcement against the defendant might be sought. Though neither the plaintiff nor the court were apprised of the true state of the facts at the time of the entry of the deci'ee, nevertheless, we are of the opinion that when they were called to its- attention promptly thereafter, and the application to vacate was coupled with an offer to bring before the court all parties necessary to a complete determination of the controversy and to the rendition of an effective decree, the court should have granted the application to vacate, imposing upon the negligent party such terms as it should deem proper.\\nThe order appealed from will be reversed and the cause remanded with directions to the district court to set aside the default decree and the award of costs therein made. The costs in this court will be taxed against appellant. It is so ordered.\\nWATSON, C. J., and SADLER, BICKLEX, and ZINN, JJ., concur.\"}"

nm/1563617.json

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+"{\"id\": \"1563617\", \"name\": \"Maria SALINAS-KENDRICK, Claimant-Appellee, v. MARIO ESPARZA LAW OFFICE, Employer, and The Travelers Insurance Company, Insurer, Respondents-Appellees, v. MOUNTAIN STATES MUTUAL CASUALTY CO., Respondent-Appellant\", \"name_abbreviation\": \"Salinas-Kendrick v. Mario Esparza Law Office\", \"decision_date\": \"1994-06-15\", \"docket_number\": \"No. 15293\", \"first_page\": \"164\", \"last_page\": 166, \"citations\": \"118 N.M. 164\", \"volume\": \"118\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T02:16:02.300422+00:00\", \"provenance\": \"CAP\", \"judges\": \"MINZNER, C.J., and PICKARD, J., concur.\", \"parties\": \"Maria SALINAS-KENDRICK, Claimant-Appellee, v. MARIO ESPARZA LAW OFFICE, Employer, and The Travelers Insurance Company, Insurer, Respondents-Appellees, v. MOUNTAIN STATES MUTUAL CASUALTY CO., Respondent-Appellant.\", \"head_matter\": \"879 P.2d 796\\nMaria SALINAS-KENDRICK, Claimant-Appellee, v. MARIO ESPARZA LAW OFFICE, Employer, and The Travelers Insurance Company, Insurer, Respondents-Appellees, v. MOUNTAIN STATES MUTUAL CASUALTY CO., Respondent-Appellant.\\nNo. 15293.\\nCourt of Appeals of New Mexico.\\nJune 15, 1994.\\nGary Jeffreys, Jeffreys, Cooper & Associates, Deming, for respondent-appellant.\\nBonnie M. Stepleton, Stepleton & Aakhus, P.C., Albuquerque, for respondents-appellees.\\nAnna L. Juarez, Las Cruces, for claimantappellee.\", \"word_count\": \"1029\", \"char_count\": \"6517\", \"text\": \"OPINION\\nDONNELLY, Judge.\\nMountain States Mutual Casualty Company (Mountain States) appeals an order from the Workers' Compensation Administration requiring it to pay disability benefits to Worker. Our second calendar notice proposed to affirm the order. Mountain States has timely opposed that proposal. Not persuaded by its arguments, we affirm.\\nClaimant suffered an accident while at work on September 5, 1990. Thereafter, she experienced pain in her hands and arms while typing. Her typing work station was modified and she continued to work. Although she testified she worked with some pain and that she took more breaks during her typing than she had before September 1990, she continued to do all her work. Employer's workers' compensation carrier at the time was The Travelers Insurance Company. In February 1991, Mountain States became the insurance carrier for Employer.\\nThroughout 1991, Claimant continued to perform the required duties of her job. She did not seek help from anyone and completed all her job tasks. Finally, on December 31, 1991, Claimant could not stand the pain in her arms and hands any longer and sought medical treatment. Her treating physician gave her medication and limited her typing to four horns per day. Although Claimant suffered an accident in September 1990, she did not become disabled from that accident until December 1991.\\nThe Workers' Compensation Judge (Judge) determined, and we agree, that, where there is evidence that Claimant's continued work-related activities have contributed to her disability, the insurance company insuring Employer at the time of the disability is responsible for payment of the disability benefits. Mountain States argues that under this Court's decision in Garcia v. Mora Painting & Decorating, 112 N.M. 596, 817 P.2d 1238 (Ct.App.1991), the date of the accident rather than the date of the disability is the determinative date establishing liability. We do not agree. Garcia was a case where the worker suffered two accidental injuries while he was employed by two successive and different employers. There, this Court considered, inter alia, that the workers' compensation judge had the authority to apportion liability for disability benefits between the worker's previous and subsequent employers.\\nAlthough Garcia is factually distinguishable from the present case, Garcia makes clear that disability arising from an accident is the event that triggers the obli gation for payment. Compensation is paid only when a work-related accidental injury becomes disabling. See id, 112 N.M. at 599-600, 817 P.2d at 1241-42; see also Strickland v. Coca-Cola Bottling Co., 107 N.M. 500, 502, 760 P.2d 793, 795 (Ct.App.), cert. denied 107 N.M. 413, 759 P.2d 200 (1988); Pena v. New Mexico Highway Dep't, Mountain States Mut. Ins. Co., 100 N.M. 408, 412, 671 P.2d 656, 660 (Ct.App.1983). See generally 4 Arthur Larson, The Law of Workmen's Compensation \\u00a7 95.00 at 17-115 (1993) (\\\"When a disability develops gradually, or when it comes as the result of a succession of accidents, the insurance carrier covering the risk at the time of the most recent injury or exposure bearing a causal relation to the disability is usually liable for the entire compensation.\\\"). Therefore, we conclude that the Judge correctly determined that the date of Claimant's disability, not the date of her September 1990 accident, was the determinative date for deciding which insurance company is liable herein.\\nMountain States also argued that the Judge erred in not finding that the accident occurred on September 5, 1990. The date of an accident that does not result in disability, as we have pointed out above, is irrelevant. In this ease, the date that the injury became compensable due to further work-related causes is the determinative factor.\\nFinally, Mountain States argues that there was not substantial evidence to support the Judge's finding that Claimant did not know she had a compensable injury until December 31, 1991. As we pointed out in the second calendar notice, although there was evidence that would have supported finding disability on an earlier date, there was sufficient evidence to support a finding of December 31, 1991, as the date Claimant knew she was disabled. It is undisputed that in December 1991 Claimant saw Dr. David A. Capen, an orthopedic surgeon, who stated that Claimant had been injured in 1990, and that her carpal tunnel syndrome was a cumulative trauma disorder that comes on insidiously. From September 1990 until she first saw Dr. Capen at the end of December 1991, Claimant continued to work in pain but missed no work. Thus, the issue is not whether there is evidence to support an opposite result, but whether evidence supports the result reached. See Bagwell v. Shady Grove Truck Stop, 104 N.M. 14, 17, 715 P.2d 462, 465 (Ct.App.1986). We hold that the evidence here supports a finding that Claimant did not become disabled until December 1991.\\nTo the extent that Mountain States claims that there was insufficient testimony of causation, we hold that the reasonable inferences from Dr. Capen's testimony are that Claimant's injury was caused by the cumulative trauma of work up until the time of December 1991. The doctor did not need to give his causation testimony in positive, dogmatic language or use the exact language of the statute; it is sufficient that his testimony reasonably connotes what the statute requires, and we hold that it does. See Gammon v. Ebasco Corp., 74 N.M. 789, 794, 399 P.2d 279, 282 (1965); see also Bufalino v. Safeway Stores, Inc., 98 N.M. 560, 565, 650 P.2d 844, 849 (Ct.App.1982).\\nMountain States' issue regarding attorney fees was deemed abandoned in our second calendar notice. See State v. Martinez, 97 N.M. 585, 586, 642 P.2d 188, 189 (Ct.App.) (if party does not oppose summary affirmance of issue, issue is deemed abandoned), cert. quashed, 98 N.M. 51, 644 P.2d 1040 (1982). For the reasons stated herein, we affirm.\\nIT IS SO ORDERED.\\nMINZNER, C.J., and PICKARD, J., concur.\"}"

nm/1566708.json

@@ -0,0 +1 @@
+"{\"id\": \"1566708\", \"name\": \"STATE of New Mexico, Plaintiff-Appellee, v. Javier GURROLA, Defendant-Appellant\", \"name_abbreviation\": \"State v. Gurrola\", \"decision_date\": \"1995-10-31\", \"docket_number\": \"No. 16183\", \"first_page\": \"34\", \"last_page\": 37, \"citations\": \"121 N.M. 34\", \"volume\": \"121\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T18:52:50.239332+00:00\", \"provenance\": \"CAP\", \"judges\": \"APODACA, C.J., and FLORES, J., concur.\", \"parties\": \"STATE of New Mexico, Plaintiff-Appellee, v. Javier GURROLA, Defendant-Appellant.\", \"head_matter\": \"908 P.2d 264\\nSTATE of New Mexico, Plaintiff-Appellee, v. Javier GURROLA, Defendant-Appellant.\\nNo. 16183.\\nCourt of Appeals of New Mexico.\\nOct. 31, 1995.\\nTom Udall, Attorney General, Margaret McLean, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee.\\nSammy J. Quintana, Chief Public Defender, Darryl A. Bouchard, Assistant Appellate Defender, Santa Fe, for Defendant-Appellant.\", \"word_count\": \"1544\", \"char_count\": \"9659\", \"text\": \"OPINION\\nBLACK, Judge.\\nThe opinion previously filed in this matter is withdrawn and the following substituted therefor:\\nDefendant's legal problems began with his failure to pay child support. The district court found Defendant in contempt and ordered him to spend thirty days in jail unless he purged himself of the contempt by paying child support. On October 30,1992, an attorney from the New Mexico Child Support Enforcement Division alleged that Defendant had failed to purge himself of contempt and filed a motion to have the sentence executed. On November 3, 1992, the district judge directed the court clerk to issue a bench warrant for Defendant's arrest. The warrant was issued but not signed by a judge.\\nOn March 25, 1993, Roswell police officers encountered Defendant talking to a friend in a car parked near the scene of a potential break-in. The officers asked Defendant for identification and permission to search his trunk. Defendant provided both. The officers also called in a wants and warrants check on Defendant. When the results of the wants and warrants check came in, the outstanding bench warrant was reported. The officers arrested Defendant on the outstanding warrant. During the two searches of Defendant's car that followed his arrest, three bags of marijuana were found.\\nDefendant appeals from the district court's denial of his motion to suppress the evidence found by the police. Defendant argues that the police lacked probable cause to seize and detain him for forty-five minutes while they ran the wants and warrants check. He also argues that the arrest warrant was invalid and the evidence was therefore the fruit of an illegal arrest. Because we agree with Defendant's second contention, we reverse and do not address his first argument.\\nI. FACTS\\nOn March 25, 1993, the Roswell Police Department received an alarm call from the local Computerland store. Officer Darren Treadwell responded along with other officers. Officer Treadwell noted that there was a broken window that was large enough for someone to gain access into the store. He proceeded to the area of a tavern, which was approximately one block from Computerland. In an attempt to gain information, Officer Treadwell spoke with three to five people at the tavern about an apparent burglary at Computerland. Approximately twenty minutes after the alarm call, Officer Carroll Durbin notified Officer Treadwell that two individuals were sitting in a Volkswagen in the parking lot of the tavern. Officers Treadwell and Durbin proceeded to approach the Volkswagen. The officers then approached Defendant and his friend, asked for identification, and asked if either of them had seen or heard anything concerning a possible break-in at Computerland. Both Defendant and his friend indicated that they had no information about any break-in or burglary. After obtaining identification from Defendant, Officer Treadwell called the Roswell police dispatcher to request a license check. Either before or after requesting the license check, but before receiving information on any outstanding wants and warrants on Defendant, Officer Treadwell was granted permission to search Defendant's trunk. No Computer-land property was found in Defendant's vehicle. The dispatcher's log indicated that the dispatcher located and reported the outstanding warrant about forty-five minutes after Officer Treadwell had initially approached Defendant. On the basis of the outstanding bench warrant, Defendant was arrested. During a search incident to the arrest, Officer Durbin found a bag of marijuana. An additional white plastic bag containing two bags of marijuana was found under the back seat during an inventory search prior to impounding Defendant's vehicle. The bench warrant upon which Defendant was arrested was based on a motion filed by an attorney for the New Mexico Child Support Enforcement Division. The motion alleged that Defendant had failed to comply with a previous order of the district court requiring Defendant to serve thirty days in jail unless he purged himself of contempt by paying arrearages and ongoing child support. No verified facts were alleged and no affidavit is contained in the record. Based on this motion, the district judge ordered, but never signed, the arrest warrant.\\nII. STANDARD OF REVIEW\\nThe validity of a seizure raises mixed questions of law and fact. See State v. Reynolds, 119 N.M. 383, 384, 890 P.2d 1315, 1316 (1995). The substantial evidence standard is used for review of the facts but the trial court's application of the law to those facts is reviewed de novo. Id.\\nIII. AN UNSIGNED WARRANT IS INVALID\\nThere is no dispute that the arrest warrant was not signed by the judge although there is a blank line for his signature. There is a signature of a deputy clerk beneath the blank space designated for judicial signature. The New Mexico Supreme Court rule regulating arrest warrants, SCRA 1986, 5-208(B) (Repl. 1992), provides:\\nB. Form for warrant. The warrant shall be signed by the court and shall contain the name of the defendant or, if his name is unknown, any name or description by which he can be identified with reasonable certainty. It shall describe the offense charged. It shall command that the defendant be arrested and brought before the court.\\n(Second emphasis added.)\\nAs the Committee commentary to the rule indicates, this portion of the New Mexico rule was derived from Federal Rule of Criminal Procedure 4(c). Under the federal rule, a warrant must contain the signature of the magistrate judge. See 8 Federal Procedure \\u00a7 22:479, at 721 (Thomas R. Trenkner et al. eds., L. ed. 1992); see also 1 Charles A. Wright, Federal Practice and Procedure \\u00a7 54, at 55 (2d ed. 1982) (warrant \\\"must be signed by the magistrate\\\"). Thus, the warrant is legally issued at the time it is signed by the proper judicial authority. United States v. Schack, 165 F.Supp. 371, 374 (S.D.N.Y.1958).\\nOther jurisdictions have also interpreted such directive language as mandatory and have voided arrests based on warrants not properly executed. See, e.g., Dujay v. State, 368 S.W.2d 613, 614 (Tex.Crim.App.1963). In invalidating an arrest under a rule that stated the \\\"warrant shall be signed by the judicial authority,\\\" the Supreme Court of Connecticut said:\\nThe language of [Practice Book] \\u00a7 594 is very clear; it mandates that the warrant . shall be signed by the judicial authority.\\nThis court agrees with the trial court's conclusion that \\u00a7 594 is designed to provide protection of an individual's liberty and security interest as supported by logic and precedent. The presence of the judge's signature lends an authenticity to the warrant which is self-evident due to its presence. An assurance of accuracy and deliberation attaches to a document bearing the official's or judge's signature, and not the least important it involves a document which ultimately reaches the individual's fundamental constitutional right.\\nState v. Cook, 183 Conn. 520, 441 A.2d 41, 42-43 (1981) (per curiam).\\nIn the present appeal, while the State agrees that the signature requirement of SCRA 5-208(B) seems to be mandatory, the State also argues that the lack of a judicial signature is merely \\\"technical.\\\" Although the legal impact of this distinction is not immediately obvious, if the State is arguing that because the signature requirement is \\\"technical\\\" it may be disregarded, then we must disagree. Like the Connecticut Supreme Court, we think the signature requirement is \\\"[a]n assurance of accuracy and deliberation [that] attaches to a document . which ultimately reaches the individual's fundamental constitutional right.\\\" Cook, 441 A.2d at 43. An unsigned warrant therefore does not comply with SCRA 5-208(B) and provides an invalid basis for an arrest.\\nIV. THE EVIDENCE MUST BE SUPPRESSED\\nThe unsigned bench warrant was invalid. Defendant's arrest was thus invalid. Therefore, we must determine the legal consequences of that invalid arrest. In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the United States Supreme Court held that if a police officer's reliance on a search warrant later found to be invalid is objectively reasonable, evidence seized at the time of arrest need not be excluded. Id. at 922, 104 S.Ct. at 3420. The New Mexico Supreme Court has, however, expressly rejected Leon and held the New Mexico Constitution does not allow good faith reliance on an invalid search warrant. State v. Gutierrez, 116 N.M. 431, 447, 863 P.2d 1052, 1068 (1993). Thus, under our Constitution, evidence seized pursuant to an illegal warrant must still be suppressed. Id. This Court, of course, follows our Supreme Court's interpretation of New Mexico law. See State v. Wilson, 116 N.M. 793, 796, 867 P.2d 1175, 1178 (1994). Under New Mexico law, the marijuana seized at the time of Defendant's arrest cannot be used as evidence.\\nV. CONCLUSION\\nThe bench warrant upon which Defendant was arrested was not properly signed and was issued without the due process of law. The warrant was therefore invalid. Under the New Mexico Constitution, evidence must be suppressed when seized pursuant to an arrest based upon an invalid warrant.\\nThe district court is reversed.\\nIT IS SO ORDERED.\\nAPODACA, C.J., and FLORES, J., concur.\"}"

nm/1568781.json

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+"{\"id\": \"1568781\", \"name\": \"TIFFANY CONSTRUCTION CO., INC., Plaintiff-Appellant, v. BUREAU OF REVENUE, State of New Mexico, Defendant-Appellee\", \"name_abbreviation\": \"Tiffany Construction Co. v. Bureau of Revenue\", \"decision_date\": \"1979-10-18\", \"docket_number\": \"No. 3777\", \"first_page\": \"593\", \"last_page\": 596, \"citations\": \"93 N.M. 593\", \"volume\": \"93\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T18:30:48.208697+00:00\", \"provenance\": \"CAP\", \"judges\": \"WOOD, C. J., and HENDLEY, J., concur.\", \"parties\": \"TIFFANY CONSTRUCTION CO., INC., Plaintiff-Appellant, v. BUREAU OF REVENUE, State of New Mexico, Defendant-Appellee.\", \"head_matter\": \"603 P.2d 332\\nTIFFANY CONSTRUCTION CO., INC., Plaintiff-Appellant, v. BUREAU OF REVENUE, State of New Mexico, Defendant-Appellee.\\nNo. 3777.\\nCourt of Appeals of New Mexico.\\nOct. 18, 1979.\\nAnita P. Miller, McCulloch, Grisham & Lawless, P. A., Albuquerque, for plaintiff-appellant.\\nJeff Bingaman, Atty. Gen., Gerald B. Richardson, Sp. Asst. Atty. Gen., Santa Fe, for defendant-appellee.\", \"word_count\": \"1373\", \"char_count\": \"8408\", \"text\": \"OPINION\\nLOPEZ, Judge.\\nPlaintiff appeals an adverse judgment in the district court denying its claim for refund of gross receipts taxes. We affirm.\\nTwo issues are raised on appeal: (1) whether plaintiff has waived its right to claim a refund under \\u00a7 7-1-26, N.M.S.A. 1978 (Supp.1979) by having already protested and litigated under \\u00a7 7 \\u2014 1\\u201424, N.M.S.A. 1978 (Supp.1979) the penalty imposed for failure to pay the New Mexico Gross Receipts and Compensating Tax; and (2) whether the State of New Mexico can impose this tax on a non-Indian, non-resident contractor working exclusively on an Indian reservation in the State.\\nTiffany is a non-Indian, Arizona corporation with its principal place of business in Arizona. For approximately one year, it worked on the New Mexico portion of the Navajo Reservation, grading and draining a road. No work was done off the reservation. The evidence is uncontroverted that all of Tiffany's employees were either residents of Arizona or Navajo Reservation Indians. The Arizona employees always entered and left the reservation through the Arizona side; and they did not use New Mexico health, educational, or law enforcement services. The approximate amount of the construction project was $1,681,740.00. The Bureau of Revenue of the State of New Mexico assessed a tax levy in the amount of $78,583.03 on Tiffany as gross receipts taxes on this project under the State Gross Receipts and Compensating Tax Act; Sections 7-9-1 to 7-9-81, N.M.S. A.1978.\\nIn June, 1975, Tiffany was informed that it owed $32,343.02 in gross receipts taxes, including a penalty for nonpayment and interest. Plaintiff protested, and an administrative hearing followed, pursuant to \\u00a7 7-1-24. The Bureau denied plaintiff's protest. This court affirmed its decision in Tiffany Construction Co. v. Bureau of Revenue, 90 N.M. 16, 558 P.2d 1155 (1976), cert. denied, 90 N.M. 255, 561 P.2d 1348 (1977). Tiffany paid the tax, penalty, and interest. Thereafter, it paid an additional $46,240.01 in monthly assessments. In November, 1976, Tiffany brought suit in the district court for a refund of $78,583.03, the total amount of gross receipts taxes, including penalty and interest, assessed and paid on its Navajo project.\\nBecause the second issue is dispositive of this appeal, we will discuss only that issue.\\nTiffany's construction work in New Mexico was properly taxed under the New Mexico Gross Receipts and Compensating Tax Act. The imposition of this tax does not violate the Fourteenth Amendment of the United States Constitution. Due process requires a taxable event occur in the state that wishes to impose its tax. Wisconsin v. J. C. Penney Co., 311 U.S. 435, 61 S.Ct. 246, 85 L.Ed. 267 (1940). The taxable event in the instant case is the performance of construction work within the state of New Mexico. Any individual or company performing construction work in this state is subject to gross receipts tax on that work. The Gross Receipts Tax is levied on services performed in New Mexico. Section 7-9 \\u2014 3(F), N.M.S.A.1978. \\\"'Service' includes construction activities .\\\" Section 7 \\u2014 9-3(K), N.M.S.A.1978. Tiffany has been taxed for having performed construction work in New Mexico. The purpose of the Gross Receipts Tax is \\\"to provide revenue for public purposes by levying a tax on the privilege of engaging in certain activities within New Mexico * (Emphasis added.) Section 7-9-2, N.M.S.A. 1978. A tax on the \\\"privilege of doing business\\\" in a state is Constitutional. Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977).\\nBeing on the New Mexico portion of the Navajo Reservation, Tiffany's entire construction project was located within the boundaries of the state of New Mexico. Although Indian reservations occupy a peculiar position in that they are self-governing entities, they are, nevertheless, part of the state in which they are located. Of the state's power to tax a non-Indian on the Mescalero Reservation, a federal judge wrote:\\nWhile it may be true that the Tribe has the power to grant the privilege of engaging in business on the reservation, it is also true that the state has power to tax business conducted in the state. The Mescalero Reservation is not located by itself on another planet. It is situated in New Mexico .\\nMescalero Apache Tribe v. O'Chesky, 439 F.Supp. 1063, 1073 (D.N.M.1977). The right to vote in New Mexico is predicated upon residency in the state, and reservation Indians are eligible to vote in state elections. Montoya v. Bolack, 70 N.M. 196, 372 P.2d 387 (1962). Moreover, construction activities on an Indian reservation are activities within the state for purposes of the Gross Receipts Tax. See G. M. Shupe, Inc. v. Bureau of Revenue, 89 N.M. 265, 550 P.2d 277 (Ct.App.), cert. denied, 89 N.M. 321, 551 P.2d 1368 (1976); Mescalero Apache Tribe, supra. Consequently, while constructing the Navajo road, Tiffany was doing business in the state of New Mexico and was subject to the New Mexico Gross Receipts Tax.\\nTiffany claims that it must receive benefits in New Mexico in order for the State to constitutionally impose a tax upon it. It argues that it obtained no benefits from the State and so cannot be taxed. This argument is without merit.\\nThere is substantial evidence in the record to support the trial court's finding that Tiffany enjoyed the use of roads located on the reservation but maintained by the State, and that it benefitted from the New Mexico Environmental Improvement Agency's regulation of air pollution from the Four Corners Power Plant.\\nTiffany next contends that, even if it did receive some benefits in New Mexico, the tax imposed is disproportionate to those benefits, and so unconstitutional. This argument, too, is without merit.\\nThe Fourteenth Amendment does not require taxes be levied according to the benefits received by the person or entity taxed. Missouri Pacific Railroad v. Road District, 266 U.S. 187, 45 S.Ct. 31, 69 L.Ed. 237 (1924); see also Dane v. Jackson, 256 U.S. 589, 41 S.Ct. 566, 65 L.Ed. 1107 (1920).\\nA tax is not an assessment of benefits. The only benefit to which the taxpayer is constitutionally entitled is that derived from his enjoyment of the privileges of living in an organized society, established and safeguarded by the devotion of taxes to public purposes. Any other view would preclude the levy ing of taxes except as they are used to compensate for the burden on those who pay them, and would involve the abandonment of the most fundamental principle of government \\u2014 that it exists primarily to provide for the common good. This court has repudiated the suggestion, whenever made, that [a taxpayer] can resist the payment of the tax because it is not expended for purposes which are peculiarly beneficial to him.\\nCarmichael v. Southern Coal & Coke Co., 301 U.S. 495, 522-23, 57 S.Ct. 868, 878-879, 81 L.Ed. 1245 (1937).\\nEven if Tiffany had received no other benefits from the State, it would be subject to the State tax from the simple fact of having engaged in business here. A tax on the privilege of engaging in business in a state is Constitutional. Brady, supra. The lack of benefits argument is frivolous when a company is able, through its presence in a state, to carry on a valuable business there. Standard Pressed Steel Co. v. Department of Revenue, 419 U.S. 560, 95 S.Ct. 706, 42 L.Ed.2d 719 (1975).\\nTiffany came into New Mexico for its own benefit. It conducted business here worth approximately $1,681,740.00 and employed 100 persons on this project. It had sufficient minimal contacts with the State to justify the imposition of a state tax. In Standard Steel, supra, the United States Supreme Court upheld a state gross receipts tax on a foreign corporation that had only one employee in the state. Tiffany enjoyed the privilege of engaging in business in New Mexico and was properly taxed for this privilege.\\nThe judgment of the district court is affirmed.\\nIT IS SO ORDERED.\\nWOOD, C. J., and HENDLEY, J., concur.\"}"

nm/1569677.json

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+"{\"id\": \"1569677\", \"name\": \"LOPEZ v. TOWNSEND et al.\", \"name_abbreviation\": \"Lopez v. Townsend\", \"decision_date\": \"1938-09-24\", \"docket_number\": \"No. 4264\", \"first_page\": \"601\", \"last_page\": 626, \"citations\": \"42 N.M. 601\", \"volume\": \"42\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T22:59:40.223587+00:00\", \"provenance\": \"CAP\", \"judges\": \"HUDSPETH, C. J., SADLER and BICKLEY, JJ., and IRWIN S. MOISE, District Judge, concur.\", \"parties\": \"LOPEZ v. TOWNSEND et al.\", \"head_matter\": \"82 P.2d 921\\nLOPEZ v. TOWNSEND et al.\\nNo. 4264.\\nSupreme Court of New Mexico.\\nSept. 24, 1938.\\nGeorge E. Remley, of Albuquerque, for appellant Scenic Stages, Inc.\\nGilbert &' Hamilton, of Santa Fe, for appellant American Fidelity & Casualty Co.\\n'Kik\\u00e9'r & Sanchez, of Santa Fe, for appellee.\", \"word_count\": \"11391\", \"char_count\": \"66551\", \"text\": \"ZINN, Justice.\\nThis is an appeal from a judgment in favor of plaintiff below (appellee here) in the sum of $5,000 awarded by the trial court, without jury, for the wrongful death of plaintiff's husband. The death occurred May 1, 1931.\\nThis case has. been heretofore before us on questions of law. See Lopez v. Townsend, 37 N.M. 574, 25 P.2d 809, 96 A.L.R. 342.\\nThe defendants (appellants here) assign severity-six alleged errors. The seventy-six are summed up under two points, as follows:\\n1. The evidence was insufficient to show that the death of deceased was caused by negligence of defendant Scenic Stages, Inc. (Defendant American Fidelity and Casualty Company is the insurer of its co-defendant pursuant to the provisions of Art. 10, Ch. 11, 1929 Comp.St. \\u00a7 11-1001 et seq.)\\n' 2. The evidence was insufficient to show that defendant Scenic Stages, Inc., was operating as a common carrier pursuant to a certificate of convenience and necessity at the time of the accident.\\nAble counsel for all parties have filed voluminous briefs in the case. Plaintiff attempts to dismiss the appeal on technical grounds. It will- not be necessary to discuss these in view of the result.\\nThe defendants direct their attack upon the judgment, contending that the evidence does not point to their legal responsibility for the death of the plaintiff's husband. We have been forced to make an independent reading and study of the entire record due to the fact that we have not before us in the briefs an agreed statement of the facts.\\nCounsel for the defendants summarize the issues tendered by the pleadings as follows:\\n\\\"1. Was the plaintiff the widow of Venceslao Lopez, deceased?\\n\\\"2. Was Venceslao Lopez killed through being struck by an automobile operated by Scenic Stages, Inc.?\\n\\\"3. If so, did the death of Venceslao Lopez proximately result from any of the acts of negligence alleged in the co.m-plaint ?\\n\\\"4. If Venceslao Lopez were so killed was he guilty of contributory negligence in any of the particulars alleged in the answers ?\\n\\\"5. If Venceslao Lopez were killed by being struck by an automobile operated by Scenic Stages, Inc., was the automobile being operated at that time as a common carrier under certificate o.f public convenience and necessity No. 44, or any oth er certificate issued by the State Corporation Commission?\\n\\\"6. If Venceslao Lopez were killed by being struck by an automobile was it the automobile alleged in the complaint, viz., a Buick 1926 model having motor No.. 191770-3 ?\\\"\\nAfter a careful study of the record we believe the above to be a fair summary and classified division of the issues before the trial court.\\nWith the exception of the issue tendered by the defendants' answer of contributory negligence, the burden was on the plaintiff to pro.ve by a preponderance of the evidence the controverted allegations of her complaint. The defendants claim that she failed in this.\\nOn the early morning of May 1, 1931, Venceslao Lopez was found injured on the Lamy highway a few miles south of the Santa Fe Plaza. His team of horses hitched to. a wagon loaded with wood stood nearby, unattended. The injured man died in an ambulance en route to a hospital in Santa Fe shortly following the discovery of his body upon 'the highway.\\nThe negligence charged was in effect that the defendants drove their stage at a reckless and dangerous rate of speed; that they failed to pass to the' left of the wagon (an overtaken vehicle) although there was ample room to do so but instead passed to the right of the wagon at a dangerous rate of speed and tyithout sounding their horn; that they operated the automobile in excess o.f ten miles per hour although on a curve which prevented a' clear view for one hundred yards ahead; that their stage was operated by an intoxicated driver; that the stage was operated in violation of city ordinances which prohibited the passing of' a vehicle on the crest of a grade where the driver do.es not have an unobstructed view of the road ahead for a distance of five hundred feet and which further prohibits the overtaking and passing of a vehicle to its right.\\nAll of the material issues in the case were resolved in favor of the plaintiff by the trial court. This embraced a finding that the plaintiff was married to the deceased; that his death resulted proximately from injuries received when struck by an automobile operated by Scenic Stages as \\u00e1 public co.nveyanc\\u00e9 under or by virtue of a certificate of public convenience and necessity.\\nIn addition, the trial court's findings convict the defendant, Scenic Stages, Inc., of negligence (a) in passing to the right of an overtaken vehicle (the wood wagon) ; (b) in driving,at a speed in excess of 15 miles per hour along a highway where the curvature thereof prevented a clear view ahead by the driver for 100 yards and where, while upon said curve, the driver at no time had a clear view ahead a distance of 100 feet before striking the deceased; (c) that the automobile was operated around said curve at such speed that it could not be stopped within the distance the driver thereof could see ahead clearly; (d) that the automobile was operated at an excessive speed under the circumstances; and (e) that the driver of the automobile passed said wagon to the right when its passage to the left was open and unobstructed.\\nThe defendants claim that the evidence is insufficient to support the findings and claim that these findings are based on conjecture, on possibilities that are not even probabilities, and that it is a case built up on guesses or presumptions oh presumptions.\\nWe do not propose to set forth in this opinion a complete review and r\\u00e9sum\\u00e9 of each and every word and inference found in the evidence in order to sustain the trial court's findings of fact. It is sufficient to say that the evidence does support the trial court's material findings and conclusions. A narration of all the evidence would be of little help and unnecessarily voluminous. Some- statement of the facts developed at the trial will necessarily be set forth hereafter in this opinion.\\nIt may be true that a much stronger case may or ought to have been proven. However, it is only our duty to ascertain if there is substantial evidence to support the material findings of the trial court and, if found, to sustain the judgment; if not found, to set the judgment aside.\\nWe start with the principle that negligence may be established by circumstantial evidence, and that, where the circumstances are such as to take the case out of the realm of conjecture and within the field of legitimate inference from established facts, then a prima facie case is made.\\nThe evidence establishes that Lopez came to his death as the result of having been struck by an automobile driven by one who failed either to stop or report the accident. We are therefore dealing with a hit and run driver, the most dangerous type of motorist on the road, one who does not give the innocent victim of his negligence even a chance for immediate medical or surgical attention if such be needed, but permits the victim to suffer if alive, and die if death be the result. Such flight is clearly a violation of the law. 1929 Comp.St. \\u00a7 11-828, 11-862. Every legitimate inference will be drawn against such a driver.\\nThis is not a criminal case, however. It was not the burden of the plaintiff to prove beyond a'reasonable doubt that the defendant, Scenic Stages, Inc., did, in a negligent and careless manner, kill Venceslao L\\u00f3pez. It was only necessary for the plaintiff to make out a prima facie case of negligence by circumstances attending the accident. Such circumstances of their own force must render probable the fact that a driver of a Scenic Stages car, operated at the time as a public conveyance, was the responsible human agency causing the injury which resulted in the death of Venceslao Lopez. Where we reasonably can, we should view the evidence as the trial court did. We must measure the probative force of specific circumstances as evidence of' what lay behind the physical cause of the death of Venceslao Lopez. We then exam ine the record to find therein proof of the issues.\\n1. Was the plaintiff the widow of the deceased?\\nThe plaintiff testified that she was the wife of Venceslao Lopez at the time of his 'death. Her testimony, under oath, was believed by the trial judge. He made a finding of fact accordingly, and there is substantial evidence in the record to support this finding. We cannot upset the same.\\n2. Was the deceased killed by being struck by an automobile operated by Scenic Stages, Inc., in a negligent manner as alleged in the complaint?\\nVenceslao Lopez was found in a dying condition, bleeding at the mouth and nose, in the middle of a main traveled highway immediately south of Santa Fe, a little after 2 o'clock A. M., the morning of May 1, 1931. He was placed in an ambulance to be rushed to a hospital, but died in the ambulance before arriving there. The visible wounds on the body of the deceased were a cut over his eye, a skinned place on his right hand and arm and a bruised place on his right hip. The evidence on the ground showed that a wagon had driven along the highway close to the right hand edge of the road for a considerable distance and then had veered sharply across the highway to the left. A pool of blood was found some twenty-six feet further along the highway from the point where the wagon had veered to the left. Some broken glass out of a car headlight was found a few feet from this pool of blood. At the right, and off the road, where the wagon tracks had veered to the left, there was visible in the soft wet ground a tire track having a distinctive tread. The road was muddy though the highway itself was gravelled. \\u2022\\nThe record also shows that Travers Stevens was a driver in the employ of defendant, Scenic Stages, Inc., for the purpose of driving a bus route between Roswell and Santa Fe under a fixed schedule pursuant to which he was due to arrive in Santa Fe between 9 and 9:30 in the evening.\\nThe record shows that at about four or five o'clock on the morning of May 1st, 1931, the Sheriff of Santa Fe County, Jesus Baca, was called over the telephone by one Arthur Alarid, calling from a filling station. The sheriff was told that there had been an accident on the Lamy Road, and that a man had been killed, and \\\" that this man who drove the car was at the Montezuma Hotel.\\\"\\nActing upon this telephone call the Sheriff of Santa Fe County went to the Monte- . zuma Hotel and called upon Travers Stevens about one-half hour before the sheriff went to the scene of the accident. Baca knocked twice on the door and Stevens did not answer; knocked again and Stevens got up, opened the door and went back to bed. Stevens had a pint whiskey bottle nearby with just a little whiskey in it. Stevens did not appear natural, was groggy and dazed.\\n; Immediately following this visit at Stevens' room the sheriff went to Closson's Garage in Santa Fe and there inspected a seven passenger Buick car of. Scenic Stages, Inc., driven into Santa Fe by Stevens the night before. This car had a sign on it \\\"Roswell\\u2014Moriarity\\u2014Santa Fe.\\\" The front fender of the car was bent, headlight broken, the bumper broken and hanging down. \\u2022 The sheriff then went out on the Lamy road to the place where Lopez was found in the road.\\nAn earlier report of the accident had also caused Desk Sergeant Roybal of the Santa Fe Police to go out on the highway prior to Sheriff Baca's visit there. He found on the highway the pool of blood that came from a wound on the head and from the mouth and nose of Lopez. When Roybal got there Lopez was bleeding .frebly. There was glass on the highway one and one-half or two and one-half feet beyond the pool of 'blood. This glass came from the headlight of a car. The blood was on the right side of the road, seven feet beyond the' east end of the culvert looking toward Santa Fe.\\nThe sheriff made a drawing of the imprint of the tire appearing at the side of the road in the earth. These tire markings in the earth corresponded to the tire of the seven passenger Buick car that had been inspected by the sheriff at Closson's Garage.\\nThe record also shows that the Scenic Stages' automobile was driven by Travers Stevens for some time previously. After all arrivals, previous to-May 1, 1931, it was Stevens' custom to come into the station and talk to the night men; but that night, upon ' arriving from Roswell, he drove the car to the back and went out at the back without talking to any of the garage people. They knew nothing of the condition of the car until Sheriff Baca called in the morning. The night man in the garage testified that the driver of the stage generally got there about nine o'clock, but he remembered nothing definitely about when he arrived that night and it might have been later. There is no positive testimony as to the time the stage arrived in Santa Fe.\\nThe record gives us a fair picture of the contour and condition of the highway where the accident occurred. It shows that from the line of the Santa Fe Grant, going north to Santa .Fe, the road is practically level for 1700 feet. Then there is an uphill grade of 5.71% which starts and continues to the crest of a hill. The road, from the .zero-zero point at the end of the 1,700 foot stretch, is straight for a short distanpe, then follows a five percent curve to the crest and over the hill. From the crest of the hill to a culvert in the road it is 350 feet. From the top of the hill the grade down-hill from the crest over said 350 feet is 2.40 percent to the culvert. The five percent curve continues from this crest to within 75 feet of the culvert. From this point (within 75 feet of the culvert) the road is straight to and beyond the cillvert. One driving in a car along this five percent curve, north toward Santa Fe, at a point 150 feet south of the culvert, can see ahead only about 150 feet, daylight visibility. This is due to the curve itself. From the culvert looking north the visibility is about 325 feet.\\nIt is 2,600 feet from the south city limits of Santa Fe. to the culvert mentioned, some 800 feet of which is on the curve and 550 feet of which is up-grade to the crest of the hill mentioned, and 350 feet down to the culvert. All the road described is within the corporate limits of the City of Santa Fe. The only change in the highway in the last six or seven years is that it has been oiled.\\nDr. Ward testified that he saw the body of deceased the morning he died; that the-deceased had some sort of wound on his forehead. This wound.was a cut. That such a blow could have been received by a man standing in the highway if struck by an automobile, and though the blow itself might not cause the death, yet a hemorrhage or concussion of the brain, inferentially the result of such a blow, might cause death.\\nThe doctor testified that if a man in the highway was struck by an automobile producing such a wound as he saw on the forehead of deceased, and the man remained there for a time not to exceed two or three hours and died, and no other cause being shown, and no other bodily injuries, the natural presumption would be, to- his mind as a doctor, that the man died from such wound. The doctor qualified his testimony by saying that his examination was purely superficial.\\nThe evidence also shows that appellant Scenic Stages, Inc., in operating the stage between Roswell and Santa Fe, some time 'during the night of April 30-May 1, 1931, necessarily passed along the road and the place where Lopez was killed.\\nThe right rear tire on the automobile that killed Lopez was of a peculiar tread. The sheriff testified that the tread of the tire-on the Buick automobile corresponded to the tread made in the soft dirt off the travelled part of the road. Where the automobile struck Lopez the impact broke out one of the headlights of that automobile and strewed the glass over the highway. The Buick car in the garage also had its headlight broken, its front right fender bent, and bumper broken .and hanging down on the right side. It was apparent that the Buick car had struck something just before arriving in Santa Fe. Public stages as a rule do not drive at night with but one headlight, and with a fender and the bumper broken. The car must have struck something, immediately before arriving at Santa Fe, that broke its headlight, fender and bumper.\\nThese several circumstances are such that there is brought within the realm of probability the fact that appellant Scenic Stages' automobile was the car that struck Lopez. Coupled with all this, and to make the probability stronger, -we have the fact that the Sheriff of Santa Fe County upon being advised that some one was killed on the Lamy Road, went directly to the hotel room occupied by Travers Stevens, the driver of the Buick car, and interviewed him. This pointed to the driver as being in some manner connected with the accident. Sheriffs are not accustomed to being called at four or five in the morning and going to a hotel room out of mere curiosity.. There was a purpose and motive in the call. Under the circumstances, the telephone call by Alarid, the Sheriff's awakening and visit to Stevens are not guesses, but bear upon the probability that Stevens was the driver of the car that struck Lopez. This conclusion is fortified by the fact that as the result of the Sheriff's visit to Stevens at the Montezuma Hotel, the Sheriff went directly to Closson's Garage and examined the Buick automobile and found the damaging evidence of a collision. He did not go to any other garage or examine any other car. And again, acting on this examination of the car, coupled with his visit to Stevens, preceded by the telephone message of Ala-rid, the Sheriff went directly out on the Lamy Road to where Lopez had been injured.\\nAll of which shows rather conclusively that the Sheriff having had news of the accident which implicated Stevens by visiting Stevens ascertained the location of the death dealing car in Closson's Garage. It is a logical and natural inference that from Stevens' statements to the Sheriff, the Sheriff was directed to appellant's automobile, and to the place of the injury. It is also a logical and natural inference that Stevens knew at least'how and where the injury occurred.\\nThe district court, having all of the above testimony before it, was justified in finding as a matter of fact that Lopez was killed by being struck by the Buick automobile belonging to the Scenic Stages, Inc., while the same was being driven by Travers Stevens; its driver.\\nNow wherein was the negligence?\\nThe evidence fairly supports an inference that Stevens passed the wagon and team to the right. If Travers Stevens at the time was violating a pertinent statute of the State of New Mexico relating to rules of the road, such violation was negligence per se.\\nCertain pertinent statutes in effect on May 1, 1931, are as follows:\\nN.M.Sts.1929, \\u00a7 11-225. \\\"(a) The driver or operator of any vehicle in or upon public highways within this state shall drive or operate such vehicle in a careful manner, with due regard for safety and convenience of pedestrains and all other vehicles or traffic upon such highways.\\n\\\"(c) Vehicles overtaking other vehicles proceeding in the same direction shall pass to the left thereof and shall not again drive to the right until the road is reasonably clear of such overtaken vehicle.\\\"\\nN.M.Sts.1929, \\u00a7 11-804. \\\"Restrictions as to speed, (a) Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than is reasonable and proper, having due regard, to the traffic, surface and width of the highway and of any other conditions then existing; and no person shall drive any vehicle upon a highway at such a speed as to endanger the life, limb or property of any person.\\n\\\"(b) Subject to the provisions of subdivision (a) of this section and except in those instances where a lower speed is specified in this act, it shall be prima facie lawful for the driver of a vehicle to drive the same at a speed ndt exceeding the following, but in any case when such speed would be unsafe it shall not be lawful.\\\"\\nN.M.Sts.1929, \\u00a7 11-804. \\\"(b) 4. -Fifteen miles an hour in traversing or going around curves or traversing a grade upon a highway when the driver's view is obstructed within a distance of one hundred feet along such highway in the direction in which he is proceeding. The state highway commission shall erect and maintain suitable signs at each end of each such curve, specifying the maximum speed limit permitted in traversing such curve under the provisions hereof.\\\"\\nIt was also the duty of drivers of automobiles to look out for wagons drawn by horses and not injure drivers.\\nN.M.Sts.1929, \\u00a7 11-225 (i). \\\"Every person having control or charge of any motor vehicle upon any public highway and approaching any vehicle drawn by an animal or animals or any animal upon which any person is riding, shall operate such motor vehicle or other vehicle in such a manner as to exercise every reasonable precaution to prevent frightening of any such animal and to insure the safety of any person riding or driving the same. \\\"\\nThe court warrantably could have believed from the evidence that the deceased was proceeding toward Santa Fe walking beside his loaded wood wagon and team; that his wagon was on the right hand side of the road, although near the center line thereof, at the moment of the accident; that when the lights of the Scenic Stages car, straightening out of the curve, brought the wagon and team within the car driver's vision, there was available to him the whole left side of the road for passage that way with sufficient distance between him and the wagon ahead, if traveling at the careful and prudent speed in view of conditions then existing enjoined by 1929 Comp. \\u00a7 11-804 (a), for diverting his course to the left hand passage; that there was also room for him to pass the wagon to the right; that choosing to pass to the right, or impelled to such course by careless speed to avoid impending collision with the wagon, the car struck deceased, inflicting injuries from which shortly thereafter he died.\\nWhile the evidence was conflicting there was direct and positive testimony that at the point where the wagon tracks suddenly veered to the left across the road, room was available for a car to pass to the left as well as to the right. Furthermore, it was near this point (though necessarily before the tracks veered, the wagon being untouched) that the tire tracks from the automobile were superimposed over the wagon tracks, finally getting over on the shoulder of the road, then suddenly swerving back on to the highway to avoid striking the edge of the culvert.\\nSheriff Baca testified:\\n\\\"Q. Was there any peculiar markings on the automobile tire? A. Very plain, the ground was very soft and damp, showing the tire mark clearly.\\n\\\"Q. Please show the . Court a diagram of what the tire markings was like. (Witness marking C).\\n\\\"Q. Now Mr. Baca, over in about what distance from the culvert south did you say that that wagon first diverted from the straight course to the left? A. I would say about 40 or 50 feet from here. It was hard surface and the minute it hit the shoulder the track was quite deep. I could see where the car straightened out to avoid hitting the edge of the culvert.\\\"\\nTraveling toward Santa Fe, the road straightened out of the curve, 75 feet south of the culvert. Measurements placed the sudden veering to the left of the wagon tracks 19 feet south of the culvert. Making due allowance for location of the abruptly veering wagon tracks within the overall length of wagon and team, the court permissibly could have believed that driven at a careful speed while emerging from jthe mouth of a blind curve upon a dark and rainy night, the driver of the car could have passed to the left as the law requires instead of undertaking passage to the right, as the law forbids.\\nTo say the least, the' abrupt turn-of the horses to the left, almost at a right angle, was extraordinary. Whether the deceased' with reins in hand, conscious that the car was bearing down upon him and his vehicle, gave the reins a sudden left hand jerk in an effort to avoid impending collision, will never be definitely known. This affords a more reasonable explanation, however, in view of the attendant circumstances, than that without suggested rhyme or reason the deceased suddenly blocked the road by turning his team and wagon directly across it. It is significant that the wagon and team escaped uninjured.\\nAll of the above we believe established the fact that the automobile which struck Lopez, and which was driven by Stevens, was driven recklessly in violation' of 1929 Comp. \\u00a7 ll-225(c) and \\u00a7 ll-804(a).\\nWhether the driver's failure to operate at such rate-of speed that the automobile could be stopped in time to avoid an obstruction discernible within the driver's 'length of vision ahead of him (within the range of the car's headlights) is negligence per se, a question passed for decision in Kandelin v. Lee Moor Contracting Co., 37 N.M. 479, 24 P.2d 731, need not now be determined. There is a division of opinion upon the subject. See 42 C.J. 930; 44 A.L.R. 1403, supplemented in 58 A.L.R. 1493, 87 A.L.R. 900, and 97 A.L.R. 546. At least, a failure to do so may constitute negligence as a matter of fact and when found by the court will support a judgment.\\nDefendants have cited some cases to show the amount of evidence necessary to prove facts by circumstantial evidence. They hold in effect that circumstantial evidence, even in a civil case, must not only be consistent with the theory that authorizes recovery but must be absolutely inconsistent with any other rational theory. Such seems to be the rule in criminal cases. See State v. Johnson, 37 N.M. 280, 21 P.2d 813. We are of the opinion, however, that in civil cases, where circumstantial evidence is relied upon for recovery, the burden of proof resting upon the plaintiff is merely to make out the more probable hypothesis. It is unnecessary that his proof attain a degree that excludes every other reasonable conclusion, as in a criminal case. We think the better reasoned authorities support this rule.\\n\\\"\\u00a7 12. Weight and Sufficiency. In civil cases, it suffices that the evidence, whether direct or circumstantial, creates a preponderance of the proof. In a civil case, circumstantial evidence need not exclude every reasonable conclusion other than that arrived at by the jury.\\\" Jones, Commentaries on Evidence, 2nd Ed., Vol. 1, Sec. 12, p. 23.\\n\\\"Such statements are undoubtedly correct statements of law, and when viewed in the light of the facts of cases wherein made and properly limited to their terms, have no real tendency to conflict. They simply pronounce the rule that if the probabilities are equal there is no preponderance of evidence, the burden of proof has not been sustained, and no recovery can be had; or, in other words, the converse of the text. Similarly the statement in the text may otherwise be stated as the familiar rule that 'in a civil case, proof to sustain a burden of proof need not be beyond reasonable doubt.' So stated it is true beyond question irrespective of whether the application is to proof attempted by circumstantial or direct evidence.\\\" Jones, Commentaries on Evidence, 2nd Ed., Vol. 1, Note 30, p. 23, copies p. 24.\\nIn a very recent criminal case decided by this court (State v. Lott, 40 N.M. 147, 56 P.2d 1029) venue was a material 'issue. We held the evidence substantial although resting entirely on circumstances and ; re-; fused to disturb the verdict of the jury. There, proof beyond a reasonable doubt was essential and the circumstances produced alone met the requirement of substantiality. See, also, Chicago, R. I. & P. Ry. Co. v. Wood, 66 Kan. 613, 72 P. 215; St. Louis, I. M. & S. Ry. Co. v. Owens, 103 Ark. 61, 145 S.W. 879; Bowling v. Roberts, 235 Pa. 89, 83 A. 600 (upon identity of an automobile).\\nThe case of Hepp v. Quickel Auto & Supply Co., 37 N.M. 525, 25 P.2d 197, is similar to this one, in that circumstantial evidence alone was relied upon to prove the'defendant guilty of negligence which resulted in the death of plaintiff's husband. We said [page 202]:\\n\\\"It is recognized, too, that in proving neg: ligence circumstantially absolute certainty cannot be achieved. As said in Rosellini v. Salsich Lumber Co., supra [71 Wash. 208, 128 P. 213, 215]: 'In this class of.cases ;ab solute certainty cannot be required. There sj'ust be a point where, if a prima facie case is. made, the burden shifts. It then became the duty of the defendant to meet this prima facie case and offer a reasonable explanation of the cause of the accident. Scarpelli v. Washington Water Power Co., 63 Wash. 18, 114 P. 870.'\\n\\\"The Illinois Appellate Court expresses the. same thought, although in different language, in Rost v. Kee & Chapell Dairy Co., 216 Ill.App. 497, where it said: 'Absolute, positive, ocular proof, the law, wisely, does riot require. Nor does negligence have to be- proven beyond a reasonable doubt. Circumstantial evidence, such as exists here, and by which the mind is impelled to make certain deductions, is sufficient.' \\\"\\n' In the instant case the circumstantial evidence offered by plaintiff points to Travers SJtevens as the hit and run driver of the Scenic Stages, Inc., stage which killed Venceslao Lopez. No other hypothesis so reasonable is apparent. The suggestion of the defendants that Lopez may have died from some other cause than being struck by an automobile is unpersuasive.\\nThe rule enunciated in the case of McKinney v. Bissel, Mo.App., 263 S.W. 533, is applicable to this case.\\nWe quote therefrom the following [page 535]: \\\"In Reisenleiter v. United Rys. Co., 155 Mo.App. 89, 134 S.W. 11, this court held, in reviewing the rule announced in Frisby v. Transit Co., supra [214 Mo. 567, 113 S.W. 1059], that slight evidence tending to support the inference that defendant owns or operates the car inflicting an injury, where it is not combated except by a general denial, and there is no intimation that defendant resists the claim on the ground that it was not the operator, will be sufficient. That is the situation we have in this case, and, only slight evidence being sufficient to show that defendant was operating this car, this evidence would unquestionably be sufficient.\\\"\\nThe defendants did not even attempt to explain away the similarity of the tire track to the tire on Scenic Stages' car. They did not explain away the connection between the broken headlight glass on the road beside the dying and bleeding body of Venceslao Lopez and the broken headlight on its stage. They made no attempt to explain the unusual dilapidated and broken condition of the stage indicating it had been in a collision or accident. They did not attempt to explain why the Sheriff of Santa Fe County, who was called out of bed on a wet drizzly morning to investigate the accident which took the life of Venceslao Lopez, went to the room of its driver Travers Stevens, and from his room went to the garage where he examined its state and then went to the place of the accident.\\nNo good purpose would be served by setting forth and discussing all of the cases cited in the briefs of plaintiff and defendants which they contend bear, or are thought to bear, upon this question.\\nWe are satisfied to hold that a plaintiff in this kind of case is not obli gaced to establish the material facts essential to a recovery beyond a reasonable doubt. Such a rule would amount to a denial of justice. It is sufficient if his evidence affords room for men of reasonable minds to conclude there is a greater probability the accident causing the injury happened in a way which fixes liability upon the person charged, than that it happened in a way which absolves him. See St. Germain v. Potlatch Lumber Co., 76 Wash. 102, 135 P. 804, 806; also Hessler v. Moore, 188 Wash. 80, 61 P.2d 1001, 1002, 1003.\\nThe defendants claim that the case has been built on guesses, or presumptions on presumptions. No more so under the facts of this case than in Hepp v. Quickel Auto & Supply Co., supra. In meeting a like contention there, we said:\\n\\\"The defendant also urges the propriety of the trial court's ruling upon the ground .that any verdict for the plaintiff would of necessity be supported by raising 'presumption on presumption.' We are not impressed that such is or would be the case.\\n\\\" 'Reasonable inferences drawn from affirmative facts proven are evidence, and not presumptions built upon other presumptions, as suggested by defendant.' Hardwick v. Wabash R. Co., 181 Mo.App. 156, 168 S.W. 328, 330. See, also, Southwest Cotton Co. v. Clements, 25 Ariz. 124, 213 P. 1005; Nicol v. Geitler, [188 Minn. 69], 247 N.W. 8; Gray v. Hammond Lumber Co., 113 Or. 570, 232 P. 637, 233 P. 561, 234 P. 261. Cf. 1 Wigmore on Evidence (2d Ed.) \\u00a7 41, p. 258.\\\"\\nOther cases holding that it affords no' objection to the judgment that the accident was unseen if circumstances reasonably point to its occurrence in a given way, are: Hasenjaeger v. Missouri-Kansas-Texas R. Co., 227 Mo.App. 413, 53 S.W.2d 1083; Summerfield v. Wetherell, 82 N.H. 513, 135 A. 147; Tucker v. Railway Co., 227 Pa. 66, 75 A. 991; Pittsburgh, C., C. & St. L. Ry. Co. v. Ervington, 59 Ind.App. 371, 108 N.E. 133, and Waters-Pierce Oil Co. v. Deselms, 18 Okl. 107, 89 P. 212.\\nThe findings of the court upon the, question of negligence in the respects indicated being supported by substantial evidence, will not be disturbed upon appeal. We express no opinion upon sufficiency of the evidence to sustain findings of neglh gerlce in other respects. We are satisfied that plaintiff established by a preponder\\u00e9 anee of the evidence issues numbered one, two and three of the issues heretofore enumerated in this opinion and which the defendants claim she failed to do.\\nThe issue of contributory negligence on the part of the deceased, Venceslao Lopez, was resolved by the findings and judgment in favor of plaintiff. The evidence was not such as to enable the court to say as a matter of law that the deceased was guilty of contributory negligence. And having found as a matter of fact that he was not, we are unable to disturb that finding.\\nThis brings us to the second major point in the case, viz., whether plaintiff's failure, if she failed, to prove that Scenic Stages operated its route pursuant to a certificate of public convenience and necessity issued byi State Corporation Commission, barred recovery.\\n'Th:e statutory rider, certainly as against the -named assured, limits the insurer's liability to losses incurred through operations pursuant to such a certificate.\\n.Touching this issue the trial court found: \\\"That on the 20th day of August, 1929, the State Corporation Commission of the State of New Mexico issued a certificate of pub-lid ' convenience and necessity to Capital Stages, Inc., a corporation, authorizing it to op'e'rate a motor transportation business from Roswell, New Mexico, to Santa Fe, New Mexico, and intermediate points, for the purpose of carrying passengers and express service between said points over state highways Nos. 2 and 41, and over U. S. Highways Nos. 70 and 470; that said certificate of public convenience and necessity was numbered 44; that thereafter said certificate was assigned by the said holder thereof to the defendant, Charles T. Townsend; and that thereafter, and prior to the 1st day of May, 1931, the said Charles T. Townsend authorized the operation of said passenger and express service over said routes under said certificate of public convenience and necessity by the Scenic \\u2022Stages, Inc., which said operation by said Scenic Stages, Inc., was thereafter, and prior to the 1st day of May, 1931, duly recognized by the State Corporation Commission of the State of New Mexico; and on the 1st day of May, 1931 the said Scenic Stages, Inc., was operating said passenger and express business between Roswell, New Mexico, and Santa Fe, New Mexico, over the highways as aforesaid; under the permit aforesaid, as a common carrier of passengers and express.\\\"\\nWhile much space in the briefs of counsel for the respective parties is consumed in arguing a lack of evidence to sustain this finding, and its legal insufficiency, if supported by the evidence, we temporarily pass consideration of the matter. For, if defendant insurer be liable regardless of whether Scenic Stages operated under a certificate of public convenience and necessity, obviously it is unimportant to determine if it did. We think it was liable under the facts here shown whether or not Scenic Stages was a licensed motor carrier.\\nUnder the admitted facts the Scenic Stages was a motor carrier as defined in L.1929, c. 129, \\u00a7 1(d), 1929 Comp. \\u00a7 11-1001(d), operating a route between Roswell and Santa Fe under a fixed schedule. Such a carrier is required by the act (1929 Comp. \\u00a7 11-1005) to deposit with the Corporation Commission a surety bond or policy of insurance from a company authorized to do business in New Mexico \\\" guaranteeing' the payment to the public of all losses and damages proximately caused by the negligence or wilful misconduct of such motor carrier, its serv ants or agents, in not less than the following amounts, to-wit:\\\" (Here follows schedule of amounts based upon seating ' capacity of vehicle.)\\nSaid section 11-1005 further provides: \\\"All such bonds or insurance policies shall . provide a guarantee of payment of all loss or damage caused as aforesaid by any such vehicle operated upon the highways of this ' state in the conduct of the business of the motor carrier therein named, whether or not such vehicle be specified in such bond or policy, and shall be for the benefit of and subject to immediate suit or action thereon by any person who shall sustain actionable injury or loss protected thereby, notwithstanding any provision in said bond \\u2022 or policy to the contrary; and every such bond or insurance policy so given shall, in any suit or action, be conclusively presumed to have been given according to and to contain all the provisions of this act. No .such certificate of public convenience and necessity shall be valid and operative until such bond or insurance policy herein named has been filed with and approved by the corporation commission, and no such bond or insurance policy herein named, so filed and approved, shall be cancelled by the surety or company issuing the same except upon and after ten days notice in writing to said corporation commission, and upon such notice being given by the surety 'or company issuing said bond or insurance policy, the certificate of public convenience and necessity of the person giving such bond or insurance policy shall be revoked unless a new bond or insurance policy shall be filed with and approved by the corporation commission before the date upon which such cancellation becomes effective'.\\\" (Italics supplied.) \\u2022 .--J\\nThe only distinction we have been able to discover between the indemnity afforded by the so-called non-statutory and the statutory coverage is that the former is cop-fined to indemnity against loss imposed , by law for bodily injuries or death to persons other than assured or his employees \\\"arising or resulting from claims upon, the assured by reason of the ownership, maintenance or use\\\" of described automobiles while used for carriage of passengers for compensation \\\"over authorized routes of the (Corporation) Commission from 'Roswell, N. M.;\\\" whereas, the latter affords the same indemnity for like claims resulting from the ownership, maintenance or use of any automobile of the assured \\\"pursuant to a certificate of public convenience and necessity issued by-the Corporation Commission of New Mexico.\\\"\\nSince operation under a certificate of convenience and necessity out of Roswell to Santa Fe necessarily would be over A route authorized'by the Corporation Commission and since the phrase \\\"any \\u00e1nd -all motor vehicles\\\" would, of course, embrace a described automobile, we do not perceive the distinction asserted by defendants -between the two types of coverage. Neither includes'the assured or any of his -employees as to personal injury, death - Or property damage. Under both indemnity; is expressly confined to losses incident to .ownership, maintenance or use of the auto- . mobiles over authorized routes of the commission in transporting passengers for compensation; and, as to the so-called statutory coverage (between which and the other we see no material difference), \\\"pursuant to a certificate of public convenience '\\u00e1iid necessity.\\\" Except to keep insurer informed of the \\\"number and character of the automobiles\\\" employed upon which the jpremium in part is based (as stated in paragraph N of the policy), no good reason suggests itself for a separate statement of liability in relation to described and unde\\u00e1cribed automobiles, the liability in legal 'effect being substantially the same.\\n,The statutory rider attached to the policy \\\"provides: \\\"The policy to which this endorsement is attached is written in pur'su\\u00e1nce of an is'to be construed in accordance with the following law of the State of New Mexico, to-wit, House Bill No. 249, Chapter 129, Laws of 1929, and the rules and regulations of the Corporation Commission adopted thereunder, and is subject to all the provisions thereof. In consideration of the premium of the policy to which this endorsement is attached, the .insurer hereby agrees to pay any final judgment within the limits set forth in the schedule below set out for injury to and/or death of persons (with the exception of any employee of the Assured while engaged in the maintenance or operation of any of the Assured's automobiles) and damage .to property (excluding property of the Assured or property which is rented or leased by the Assured, or property other than the baggage of passengers in the custody of the Assured or carried in or upon any automobile of the Assured, except as otherwise specified) resulting from the ownership, maintenance or use of any and all motor vehicles pursuant to a certificate of public convenience and necessity issued by the Corporation Commission of New Mexico. It is further understood and agreed by and between the Insurer and the Assured that the right of any person to recover hereunder shall not be affected by any act or omission of the Assured or .any employee, of the Assured with regard to any condition or requirement of said policy, but all terms and conditions of the policy shall remain in full force and be binding as between the Insurer and the Assured; and the Insurer shall be reimbursed by the Assured for any and all loss, costs or expenses paid or incurred by the Assured which the insurer would not be obligated to pay under the provisions of the policy independent of this endorsement (Italics ours)\\nUndoubtedly this italicized clause has been borrowed from the language of the standard or union mortgage clause employed with respect to a mortgagee's rights under fire insurance policies. It is very similar in form. Writing in 3 Cooley's Briefs on Insurance (2nd Ed.) 1988, in reference to such a provision attached to a fire insurance policy, the author states: \\\"When the policy is intended as a protec tion to a mortgagee, there is usually attached to it- a provision that 'this insurance, as to the interest of the mortgagee only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the property insured.' This clause, though a comparatively recent addition to policies, was construed as early as 1878, in Hastings v. Westchester Fire Ins. Co., 73 N.Y. 141, affirming 12 Hun, 416, as recognizing the mortgagee to be a distinct party in interest, and as creating a new contract, the terms of which had no relation to the contract between the company and the original insured. In Phenix Ins. Co. v. Omaha Loan & Trust Co., 41 Neb. 834, 60 N.W. 133, 25 L.R.A. 679, it was held in effect that the conditions upon which payment should be made, as between the insurer and the insured, did not qualify the right of the mortgagee, in view of the mortgage clause, and therefore the right of the mortgagee to recover was not affected by conditions which, as between insurer and insured, would avoid the policy. This decision was subsequently followed in State Ins. Co. v. New Hampshire Trust Co., 47 Neb. 62, 66 N.W. 9 (on rehearing 66 N.W. 1106).\\\" See, also, Id., 2390; 4 Joyce on Insurance (2nd Ed.) \\u00a7 2795, p. 4776; People's Savings Bank v. Retail Merchants' Mutual Fire Ass'n, 146 Iowa 536, 123 N.W. 198, 31 L.R.A.,N.S., 455.\\nThe position of the public for whose benefit the policy is issued is akin to that of the mortgagee under the standard or union mortgage clause found in fire insurance policies. Indeed, and apparently in the absence of language so plainly declaring as in the policy before us, the Supreme Court of Tennessee in United States Fidelity & Guaranty Co. v. Allen, 158 Tenn. 504, 14 S.W.2d 724, asserts that recovery in that case might very well rest upon such analogy. The court said [page 725] : \\\"It is asserted by defendant Guaranty Company that its liability should be measured by the liability of Jones & Dillon to the extent of the policy. We think that much is true, but the liability of defendant Guaranty Company might very well be rested on another ground. The rider attached to the policy issued sets out that the real beneficiary of said policy is the state of Tennessee for the use and benefit of the public. This being true, the rights of the public would be similar to those of a mortgagee under a fire insurance policy bearing the standard mortgage clause. A transfer of the interest of the mortgagor, or other acts by the mortgagor, might avoid the policy as to him; but such conduct on the part of the mortgagor would not affect the rights of the mortgagee without notice. Laurenzi v. Insurance Co., 131 Tenn. [644] 664, 176 S.W. 1022; Joyce on Insurance (2d Ed.) \\u00a7 2795.\\\"\\nThe same analogy, and likewise absent policy language so recognizing, suggested itself to Vice Chancellor Bigelow in United States Casualty Company v. Timmerman, 118 N.J.Eq. 563, 180 A. 629. He said [page 632]: \\\"The situation presented by'a financial responsibility policy is much like that created by a fire policy with standard mortgagee clause attached. The insurer's liability to the assured is distinct from its liability to an injured third person. The rights of the latter against the insurer spring from the statute as well as from the policy, just as the rights of the mortgagee are' determined by the mortgagee clause. The fire policy remains valid as to the mortgagee, despite a breach of warranty by. the assured owner. Reed v. Firemen's Ins. Co., 81 N.J.L. 523, 80 A. 462, 35 L.R.A.(N.S.) 343. Likewise, complainant's policy, remains valid as to Godlewska. The cotnpany's remedy is an action on the policy against Timmerman.\\\"\\nUpon the former appeal of this case, 37 N.M. 574, 25 P.2d 809, 96 A.L.R. 342, in Our opinion on rehearing, we sensed the distinction in liability to the public and to the'named assured under this policy. We. said' [page 814]:\\n'\\\"\\u2022There remain to be considered the spec-ifications under the proposition that the ' complaint fails to set forth facts constitut- ' ihg' a cause of action. These points are made: (3) failure to allege that the'' automobile was being operated pursuant to a certificate of convenience and necessity; (4) failure to allege that the 'fl\\u00fc't\\u00f3mobile. was being operated on a route 'authorized by the Corporation Commission.\\n.M.\\\"In urging the necessity of such allegations,, .the casualty company points to provisions. of the policy, limiting liability. ,)A\\u00cdith these we are not concerned. They .\\u00a1affect the insurer's liability to indemnify B'th\\u00a1q,,.assured. In that, matter the public is not interested. We look to the rider and the statute.\\\"\\nThe insurer will be taken to have appropriated the language quoted supra with a knowledge of the construction given it by the courts in fire policies.\\nThe obvious purpose of this clause is to affirm in the public, for whose benefit the policy is required, a coverage not obtaining in favor of the named assured. Under the terms of this clause, the insurer distinguishes between liability to the named assured (the carrier) and to the public. The breach by named assured of a condition or requirement of the policy fatal to his indemnity leaves unaffected the right of \\\"any person\\\" (the public) to recover thereunder. Furthermore, the named assured agrees to reimburse the insurer for \\\"any and all loss, costs or expenses paid or incurred by the assured which the insurer would not be obligated to pay under the provisions of the policy independent of this indorsement.\\\" In other Words, where, but for the endorsement, as its draftsman conceived, the policy condition or requirement breached would have barred recovery by all persons, the insurer's waiver of such breach in favor of the public shall not constitute a waiver in favor of named assured as respects the indemnity contracted for by him.\\nStrong reasons support, whether or not such is the effect of the statute without.it, the inclusion of such a provision. These policies are required by law for protection of the public, The motor carrier., operat ing over a given route knows, or its officers should know, whether it has its certificate of convenience- and necessity. The travel-ling public neither knows, nor has ready means of ascertaining, whether such be the case. A passenger about to purchase a bus ticket and employ the carrier's services will not pause to inquire, nor does this policy provision contemplate that he shall do so, whether such carrier has its certificate of convenience and necessity or has fulfilled other conditions or requirements of the policy essential to its validity as between the carrier and the insurer.\\n\\\"We must hold the intent of the law is to put financial responsibility behind the operations of the motor transportation company as a protection to those with whom they do business and the public concerned with the safety of the public highways being used by insured in the, conduct of the business of a common carrier for hire.\\n\\\"It is not for the passenger, boarding a vehicle of such carrier to inquire whether the particular vehicle so publicly employed has been put into the service in conformity with lawful regulations; nor for a shipper via such carrier to inquire what vehicle of such owner receives and carries his freight; nor for the public to be deprived of the security provided in the bond against the carrier's negligence by. reason of another wrongful act of such carrier in putting into service a vehicle in violation of the 'rules with which he should comply.\\\" Fidelity & Casualty Co. of N. Y. v. Jacks, 231 Ala. 394, 165 So. 242, 246.\\nSee, also, Hipp v. Prudential Casualty & Surety Co., 60 S.D. 300, 244 N.W. 346.\\nThat the policy in suit was in force there can be no doubt. It not only was issued for the first year but renewed for the second. It contained no provision that it should not take effect until a certificate was issued. True, it conditioned liability upon operations under a certificate. But in the very next sentence it agreed that any act or omission of the assured in respect of such condition should not affect the right of any person to recover under the policy. Obviously, a condition that liability shall not attach save where operations are pursuant to a certificate is a covenant by assured that he will only so operate. Thus, the carrier's \\\"act\\\" in operating without a certificate, while fatal to its own indemnity, is expressly waived by insurer in favor of the public. And; if the carrier might have had the certificate upon proper application, its failure to secure it is an \\\"omission\\\" within this language of the rider.\\nIn Hipp v. Prudential Casualty & Surety Co., supra, one defense was that the policy was not in force. The court said [page 347] : \\\"The first reason is'based on the fact that at the time of the accident Moberg was not a licensed motor carrier, but was operating his bus line illegally and without a license or permit, and that the policy had not. been approved by the board of railroad commissioners.:. Whether Mo- berg was operating his bus line illegally is not material. It is a fact that at the time of the issuance of the policy he was actually engaged in the operation of his bus line and was a motor carrier under the definition found in section 2, c. 224, Session Laws 1925, as amended by section 1,- c. 181, Session Laws of 1929. There is no provision of law, nor condition contained in the policy, to the effect that the same shall not take effect until it has been approved by the board of railroad commissioners, and it was in force by express terms from and after noon of the 11th day of December, 1929.\\\"\\nUnder this view, the trial court reached the correct result even though it did so by pursuing a false issue. The error, if any, in so doing does not harm the defendant. Lockhart v. Wills, 9 N.M. 344, 359, 54 P. 336.\\nHowever, we think this phase of the case may also be disposed of upon a theory entirely consistent with the trial court's finding' No. 4, quoted supra. It found that State Corporation Commission related the operations, of Scenic Stages, Inc., to the Townsend certificate; duly recognized its operations as under said certificate and acquiesced therein. But the defendant insurer challenges in several respects this finding upon which rests the conclusion of liability against it. This necessitates a present statement of the facts bearing on this issue.\\nThe. evidence-disclosed that on August 20, 1929, certificate of public convenience and necessity No. 44 was issued to Capitol Stages, Inc., authorizing it to operate over a fixed route a motor transportation business between Roswell and Santa Fe, New Mexico, and intermediate points, for the carriage of passengers and express. On November 15, 1929, the defendant American Fidelity and Casualty Company, a corporation, issued the policy herein sued upon giving name of assured as .\\\"Scenic Stages, Inc., and/or Chas. T. Townsend\\\" of Roswell, New Mexico, and the same was deposited with State Corporation Commission.\\nWithin three weeks and on December 7, 1929, this certificate of convenience and necessity No. 44 was transferred by Capitol Stages to Chas. T. Townsend and the transfer was approved by the Corporation Commission on the same date. Still upon the same date Scenic Stages, Inc., was formally incorporated by the Corporation Commission.\\nThe policy, subject to its provisions, extended coverage to certain described automobiles; in addition, in compliance with Laws 1929, c. 129, and likewise subject to policy provisions] it afforded indemnity for all loss or damage caused by any motor vehicle \\\"whether or not such vehicle be specified in such policy.\\\"\\nWhile plaintiff sought to impose liability through proved use of a described automobile, she was unable to prove, at least did not prove, that the automobile pleaded was in use on the occasion . in question; hence, she was relegated to. proof that Scenic Stages, Inc., was operating under a certificate of public convenience and necessity.\\nOn February 4, 1930, by an endorsement on the policy and in exchange for an additional premium, coverage on a certain named vehicle was withdrawn and extended to another described vehicle. Likewise on May 13, 1930, by two separate endorsements and in consideration of additional premiums,' coverage was extended to three additional and described motor vehicles.\\nThereafter and on October 1, 1930, the policy was renewed in favor of \\\"Scenic Stages and/or Charles T. Townsend of Roswell, New Mexico,\\\" as the assured by an endorsement reading: \\\"In consideration of an additional premium of $1,127.88 it is understood and agreed that this policy is renewed for a term expiring October 1st, 1931, subject to all the terms and conditions thereof.\\\" Laws 1929, c. 129, \\u00a7 5 (1929 Comp. \\u00a7 11-1005), provides: \\\"All insurance policies executed pursuant hereto shall expire on the first day of October of each year, and at no other time.\\\"\\nAt the trial, the defendants entered into a stipulation as to what Charles T. Town7 send would testify if present, which is as follows: \\\"Mr. Townsend, if here, would testify that Travers Stevens was in the employ of Scenic Stages, Inc., for the purpose of driving a route between Roswell, New Mexico and Santa Fe, New Mexico, under a fixed schedule, pursuant to which he was due to arrive at Santa Fe, New Mexico, between 9:00 and 9:30 in the evening, and that he was employed for no other purpose.\\\"\\nThe defendant, American Fidelity and Casualty Company, admitted in its answer that on May 1, 1931, Scenic Stages, Inc., was engaged in operating motor vehicles for hire as public carriers of passengers between the cities of Roswell and Santa Fe and that it was still so engaged at the time of the filing of plaintiff's complaint in July, 1935, but denied that such operation was pursuant to any certificate of public convenience and necessity. It denied that Charles T. Townsend was so engaged at any of said times.\\nThe defendants, Charles T. Townsend and Scenic Stages, Inc., answering separately, denied that Townsend on any of the dates mentioned was operating a motor carrier business between Roswell and Santa Fe but admitted that Scenic Stages, Inc., on May 1, 1931, \\\"was engaged in the business of operating stage coaches and automobiles as a public carrier for the transportation of persons between the cities of Santa Fe and Roswell, New Mexico, and intermediate points, as alleged in said paragraph.\\\" (Italics supplied.) In paragraph 8 of the complaint, to which this allegation of the joint answer of Townsend and Scenic Stages was responsive, it had been alleged that Scenic Stages was so operating between Roswell and Santa Fe \\\"as authorized by said Certificate of Public Convenience and Necessity No. 44 and operating under said certificate.\\\"\\nThe Motor Transportation Act of 1929 (Laws 1929, c. 129, \\u00a7 3), 1929 Comp. \\u00a7 11-1003,'-.prohibited all intrastate motor carriers from operating for hire between fixed termini or over a regular route upon any public highway without a certificate of -public convenience and necessity issued by the State Corporation Commission, which commission was given administration of the act. Section 11-1005 provided that no such certificate should be issued until the motor carrier had filed with the commission and obtained its approval either of a surety bond or policy of insurance from a company authorized to, do< business in New Mexico \\\" guaranteeing the payment to the public of all losses and damages proximately caused by the negligence or wilful misconduct of such motor carrier, its servants or agents, in not less than the following amounts, to-wit:\\\" -(Here follows schedule of amounts based upon seating capacity of vehicle.)\\nWithout treating as competent against American Fidelity and Casualty Company the admission in the answer of its co-defendants, Townsend and Scenic Stages, Inc., that the latter, on May 1, 1931, was operating by authority of certificate No. 44 of Townsend (Cf. 22 C.J. 362, \\u00a7 405), if, indeed, it may be so construed, we think the evidence sustains the finding of the trial court upon this branch of the case. That theory, as above stated, was that Scenic Stages operated by virtue of the certificate held by Townsend and that such operation was acquiesced in by State Corporation Commission. If so, failure to have formal transfer of the certificate from Townsend to Scenic Stages was a mere omission or default on the part of Scenic Stages upon which the insurer -expressly bound itself by policy provision not to rely. This provision, taken from the standard mortgage clause of fire policies, already has been quoted. -.\\nThe trial court found Travers Stevens was the negligent driver of the Buick seven-passenger bus, found in Closson's garage, which struck and killed Venceslao Lopez.. Travers Stevens, the man who was driving the Buick bus, labeled \\\"Roswell-Moriarity-Santa Fe\\\", had been continuously-driving the car into the garage regularly for some- time previous to May 1, 1931. It is admitted that certificate of public convenience and necessity No. 44 was issued' .to Capitol Stages, Inc., a corporation, to-operate over highways between the cities-of Roswell and Santa Fe, New Mexico, and that said certificate was endorsed to-the defendant, Charles T. Townsend, and that on the same day said endorsement was approved by the State Corporation. Commission, Scenic Stages, Inc., was incorporated; that application theretofore)had been made to defendant, American Fidelity and Casualty Company, for a policy of insurance as required by L.1929, c. 129, insuring the defendant Scenic Stages, Inc., and/or Charles T. Townsend as common carriers, and that the insurance policy was issued under said application, its issuance being pursuant to the provisions of Section 5, Chapter 129, Laws of 1929.\\nNow this much is certain. The policy became effective to cover joint operations of the two assured named in the policy or the separate operations of either. The statute provides, to be sure, that the policy must be filed with the commission before a certificate is issued. 1929 Comp. \\u00a7 11-1005. But this policy cannot be catalogued as a mere incident to an abortive attempt to secure a certificate. If so, why the repeated endorsements withdrawing and extending coverage as to described cars ? And why the annual renewal on October 1, 1930? The operations of someone related themselves to a certificate which this policy was given to secure. Was that someone Townsend or Scenic Stages, Inc.? All defendants admit Townsend was not operating on May 1, 1931. Scenic Stages was operating on May 1, 1931 and had been operating for \\\"some time\\\" previous thereto a motor carrier passenger service between Roswell and Santa Fe with Travers Stevens who drove the seven passenger Buick sedan on the day in question as one of its regular drivers.\\nTownsend held a certificate covering and rendering lawful operations by him on a route from Roswell to Santa Fe. Scenic Stages was a corporation operating this route. The insurer defendant recognized some connection between Townsend and Scenic Stages in connection with such certificate and such operations because it issued and later renewed its policy insuring the operations of one and/or the other and such policy was in force at the time of the injury. The policy stipulated that cancellation notices, effective as to both assured, might be served on Scenic Stages alone. Whatever Townsend's connection with Scenic Stages, it was sufficiently intimate that his competency to testify in detail as to the nature of Travers Stevens' employment by it, the scope of his duties as driver of its stages, the termini of its route, the kind of schedule maintained and its arriving time in Santa Fe, was in no manner questioned.\\nIt was unlawful for Scenic Stages to operate over this line without the authority of a certificate of convenience and necessity. 1929 Comp. \\u00a7 11-1003. A severe penalty was imposed for doing so. Section 11-1039. Scenic Stages operated with or without the knowledge of the commission on May 1, 1931 and for a considerable time prior thereto. It was required to file with the commission on or before the 20th day of each month a report containing data respecting operations for the preceding month for purpose of calculating the tax imposed by the act. Sections 11-1007 and 11-1008. In view of these considerations it seems improbable that Scenic Stages could operate for any appreciable period without the knowledge of the Corporation Commission. So viewing the matter, the trial court concluded that the Commission related Scenic Stages' operations to the certificate held by its co-insured, Townsend, and found that the operations of Scenic Stages under the certificate held by Townsend were \\\" prior to the 1st day of May, 1931, duly recognized by the State Corporation Commission of New Mexico.\\\"\\nWhether the Commission was authorized in this fashion to validate operations without the formal issuance or transfer to Scenic Stages of said certificate, a power vigorously challenged by the insurer defendant, we need not determine. At least, it reflects that failure to have formal transfer or issuance of certificate to it was due to default of Scenic Stages in requesting same. It is thus brought within the express policy provision quoted supra whereby insurer agrees that the right of \\\"any person to recover hereunder shall not be affected by any act or omission of the assured with regard to any condition or requirement of said policy,\\\" etc.\\nThe defendant insurer places chief reliance on Interstate Casualty Co. v. Martin, Tex.Civ.App., 234 S.W. 710; Allen v. American Fidelity & Casualty Co., 5 Cir., 54 F.2d 207. See, also, Frohoff v. Casualty Reciprocal Exchange, Mo.App., 113 S.W.2d 1026. In none of these cases does the opinion disclose language in the policy providing that the right of any person to recover thereunder shall not be affected by any act or omission of the assured with regard to any condition or requirement of the policy.\\nThe plaintiff also assigns as cross-error the following, occurring while Sheriff Baca was on the stand, to-.wit: \\\"Judge Kiker: We offer to prove by Mr. Baca that at the time (he) had this talk with Stevens, Stevens told him that he was the driver of the bus of the Scenic Stages then in the Closson Garage, and that he told him that out on the Lamy highway he struck an object in the highway, and that at the time he was driving rapidly, at a speed of about 45 miles an hour.\\\"\\nThe trial court refused the tendered testimony. In view of the result reached, it obviously is unnecessary to consider this cross-assignment. Finding no error, the judgment under review will be affirmed.\\nIt is so ordered,\\nHUDSPETH, C. J., SADLER and BICKLEY, JJ., and IRWIN S. MOISE, District Judge, concur.\"}"

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+"{\"id\": \"1569758\", \"name\": \"VAN SICKLE v. KECK et al.\", \"name_abbreviation\": \"Van Sickle v. Keck\", \"decision_date\": \"1938-07-15\", \"docket_number\": \"No. 4359\", \"first_page\": \"450\", \"last_page\": 470, \"citations\": \"42 N.M. 450\", \"volume\": \"42\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T22:59:40.223587+00:00\", \"provenance\": \"CAP\", \"judges\": \"BICKLEY, SADLER, and ZINN, JJ., concur.\", \"parties\": \"VAN SICKLE v. KECK et al.\", \"head_matter\": \"81 P.2d 707\\nVAN SICKLE v. KECK et al.\\nNo. 4359.\\nSupreme Court of New Mexico.\\nJuly 15, 1938.\\nJ. B. Newell and Edwin Mechem, both of Las Cruces, for appellant.\\nE. E. Young, of Roswell, for appellees.\", \"word_count\": \"9100\", \"char_count\": \"52088\", \"text\": \"BRICE, Justice.\\nThe appellant sued the appellees for an interest in, and to impress an equitable lien against, certain real estate situated in Lincoln County, New Mexico.\\nThe appellant will be styled plaintiff; the defendant Keck, defendant, and the other defendants styled defendant Woolard and defendant Franklin, respectively.\\nPlaintiff alleged in substance that in 1931 he entered into an oral agreement with the defendant and his wife, by the terms of which he was to furnish labor, material and money, sufficient to build a house for defendant on certain lots described; in consideration for which the defendant and wife agreed to board him for life, and upon his death provide for him a suitable burial. That pursuant to this contract the plaintiff did furnish the labor and material with which to build the house in question, of the value of $3550.41.\\nThat plaintiff boarded with defendant and wife until the latter's wife died, which occurred in the latter part of September, 1935; after which defendant failed and refused to longer carry out the contract. That the board furnished plaintiff was of the value of $1607, and that the balance due .him was $1943.41; being the difference between the said sum of $1607 and the amount furnished by plaintiff for the purpose stated. It was alleged that the defendant has no other property subject to execution and that plaintiff has no adequate remedy at law.\\nThe tenth paragraph of the complaint is as follows: \\\"That by reason of the premises above stated this plaintiff is entitled to an interest in said property in the sum of $1,943.41; or such sum as the Court may find remains after allowing a reasonable sum for board during the period of time that plaintiff boarded with the said Kecks.\\\"\\nThe prayer is \\\"That plaintiff's interest in and to said property 'be ascertained and adjudicated and a lien established against the same.\\\"\\nThere were certain transfers of the property in suit in which defendants Keck, Woolard and Franklin were parties, which it is alleged were fraudulent, and for the cancellation of which, the plaintiff prayed.\\nAt the close of appellant's testimony appellees moved for dismissal. 'The motion was sustained and judgment entered dismissing appellant's bill. From the judgment of dismissal this appeal was prosecuted.\\nThe motion to dismiss called for a declaration of law, the effect of which is: considering plaintiff's testimony only, and in a light most favorable to him, together with all reasonable inferences that can be deduced therefrom, has he proved a case that will support a decree? Considering the evidence under this rule we find the following facts:\\nThe plaintiff was a carpenter and builder, and went to Ruidoso in Lincoln County about 1926. The defendant moved there in April, 1929-, Plaintiff boarded with de: fendant for some time and they became friends. Plaintiff advanced money to the defendant with which to buy a lot, and on this lot plaintiff built for the defendant a house for residential and business purposes, at a total cost to plaintiff of $3564.811 After the house was built, an agreement between the two was entered into whereby in consideration of the money so advanced by plaintiff, the defendant agreed to board plaintiff for the remainder of his life and give him a decent burial at his death. In pursuance of this agreement, plaintiff boarded with defendant and his wife until the latter's death on the 13th day of Sep: tember, 1935, a period of 1628 days, the value of which was $1628. The defendant thereafter was unable to carry out his agreement further.\\nThe plaintiff assumes the measure of damages to be the difference between the value of the board furnished and the original debt, or $1943.41. This seems not to have been contested.\\nOn' the day after this suit- was brought defendant conveyed the property in question to the defendant Franklin, and a short time thereafter Franklin conveyed it to defendant Woolard. The defendants Franklin and Woolard knew of the pendency and purpose of this suit at the time of these transfers; and the evidence would warrant the inference that the two transfers were made with the intent and purpose of defrauding the plaintiff out of the debt which it was agreed was due him, and that the defendants Franklin and Woolard had full knowledge of that intent.\\nThe agreement for plaintiff's support and burial was apparently not thought of until after the house was completed. He'advanced funds to buy the lot and build the house, and when this was accomplished defendant owed the plaintiff $3564.81.\\n: As we understand plaintiff's argument, it is that he is entitled to an equitable lien against the real property in question, to secure him for the balance of the original debt, after deducting the value of his board for 1628 days at $1 per day; presumptively because he advanced the money to buy the lot. and to build the house thereon.\\nThere was no agreement in writing, or otherwise, that plaintiff should have a lien or mortgage on the property to secure his debt. An equitable lien in his favor did not arise from the fact that plaintiff furnished the money to buy the lot (Perry v. Neel, 126 Neb. 106, 252 N.W. 812) and erect the building thereon. Thorbahn v. Walker's Estate, 269 Mich. 586, 257 N. W. 892.\\nA court of equity will not relieve an individual from the operation of the statute of frauds, which requires that interest in lands be created by an instrument of writing, and impose an equitable lien upon the land in favor of one who makes improvements thereon knowing that the title is in another; but will leave the parties to the remedies, if any, that a court of law provides. Washington Market Co. v. District of Columbia, 172 U.S. 361, 19 S.Ct. 218, 43 L.Ed. 478; Spencer v. Williams, 113 W.Va. 687, 170 S.E. 179, 89 A.L.R. 1451; Perry v. Neel, supra; Thorbahn v. Walker's Estate, supra.\\nThe amount due plaintiff was computed by deducting from the original debt the value of board furnished the plaintiff for 1628 days at a value of $1 per day. The parties seem to have agreed to this measure of damages; and for the purposes of this suit we will assume the amount is correct. But the correct measure of damages is a sum of money which, invested in safe securities, would produce a monthly income sufficient to board plaintiff during his life (in this case $30 per month), leaving only enough at his death to decently bury him. Freeman v. Fogg, 82 Me. 408, 19 A. 907; Staiar's Adm'r v. Netter, 198 Ky. 788, 250 S.W. 89; Shover et al. v. Myrick, 4 Ind.App. 7, 30 N.E. 207; Baughan v. Baughan, 122 Ind. 115, 23 N.E. 695; Chesapeake & O. Ry. Co. v. Kelly, 241 U.S. 485, 36 S.Ct. 630, 60 L.Ed. 1117, L.R.A.1917F, 367. In arriving at the amount of damages, recognized mortality tables may be introduced in evidence to be considered by the jury with other competent evidence to establish the probable length of plaintiff's life, as a basis for proving the time for which the defendant was paid to furnish board to plaintiff. Staiar's Adm'r v. Netter, supra; Morrison v. Atee, 23 Or. 530, 32 P. 400; Shover et al. v. Myrick, supra; Vicksburg & Meridian Ry. Co. v. Putnam, 118 U.S. 545, 7 S.Ct. 1, 30 L.Ed. 257.\\nPlaintiff cites cases in which deeds to land, given by aged persons in consideration of support for the remainder of the grantor's life, had been cancelled, or in which equitable liens had been impressed on such lands where the contracts had been breached. Contracts by which aged persons transfer all, or the major portion of their property in consideration of an agreement on the part of the grantee to support the grantor during the remainder of his life, are in a class by themselves, and are governed by different rules, or at least by different presumptions, than those governing other like contracts. Anderson v. Reed, 20 N.M. 202, 148 P. 502, L.R.A.1916B, 862.\\nBut this is not a case of that class. It was not alleged or proved that plaintiff was an aged person; or that the consideration paid was any considerable portion of his property; or that he was induced by false promises to enter into the contract; or that defendant was guilty of any fraud in connection with the making or execution of the contract; or that any fiduciary relation existed between the parties. On the contrary it appears that the defendant and the plaintiff were not related; that plaintiff himself proposed to furnish the money to buy the lot and build the house; that after it was built he proposed to cancel defendant's obligation to him if defendant would board him and give him a suitable burial at his death; inferentially, that plaintiff knew defendant and his wife were without means; that defendant did not carry out the contract because of his physical, mental and financial condition, and for no other reason. Plaintiff lived in his own house and defendant's obligation was limited to furnishing to him his meals. He is a.carpenter and builder. He owns a hardware store and the house it occupies, and several cottages in Ruidoso which he rents. Apparently he is a man of considerable means and income. He offered to give the debt sued on to Mrs. Keck's nieces if defendant would sell the property and pay them the amount of the debt from the proceeds of such sale. He was not entitled to the personal care and attention contemplated by contracts like that construed in Anderson v. Reed, supra, in which we said (page 505) : \\\"But the courts of this country, with but few exceptions, treat contracts by a grantee to furnish a home for and support to a grantor, when constituting the consideration for a conveyance by the grantor of the whole or major portion of his property, as being in a class by themselves, which are not governed by the ordinary rules which apply in the construction of contracts. The value of the services, care, and attention contracted for cannot be measured in money. In this case, while others might have administered to the necessities of the grantor; in caring for and nursing him, they could not give to him that which he understood he-was contracting for, viz., the care 'and nursing by one upon whom, if the witnesses are to be believed, he bestowed his love and affection and believed that he was receiving in return, and would continue to receive, daily evidences of similar devotion and affection, the loss of which, and her ministrations to his wants, could not be supplied by others, or its loss measured in money, as stated. 'Such a consideration as the above is not regarded as an ordinary obligation, but is' of a peculiar character, imposing upon the grantee burdens which must be performed, if he would retain the benefits of the contract. Courts of equity, because \\\"of the inadequacy of any legal remedy, do 'not hesitate to set aside such contracts, up-<3n proof of failure to perform by the grantee. Such courts are not so much concerned as to the proper theory upon which such contracts may be avoided, as they are that they, must be set aside in order to prevent grave injustice and the imposition upon aged people, by unscrupulous persons, who pretend love, devotion, and friendship, yvhere no one of such elements exists. Cancellation is the only adequate remedy applicable to such a case, where there is a refusal or intentional failure to perform. This being true, it is only natural that we should find the courts at variance, upon the proper equitable ground upon which such cancellation should be predicated.\\\"\\nThe application of the rule of law invoked by plaintiff was made in Anderson v. Reed, supra, and in the following cases which illustrate it:\\n\\\"Such contracts have come to be looked upon as almost if not quite presumptively improvident in their inception, and in that view courts of equity have gone to great lengths to remedy the mischief by reading out of them a condition, where a covenant only is expressed, upon which may be founded, on principle, a right of rescission where justice requires it for t;he protection of the weak, the exercise of which will undo the mischief ab initio and restore the parties, substantially, to their original situation.\\n\\\"In this case it seems that the hope and expectation of filial regard was the moving cause on the part of respondent in transferring his property to his son. The contract reposed in appellant a trust of the most important character\\u2014that of caring for the daily wants of an aged parent in health and sickness to the end of his life, \\u2014a trust which only the trustee, under proper conditions, could properly exercise \\u2014one that never ought to be delegated, never can be properly delegated to another not in the same relation.\\\" Glocke v. Glocke, 113 Wis. 303, 89 N.W. 118, 121, 57 L.R.A. 458.\\n\\\"This court has by a long line of adjudications settled the rule that for such breach of conditions a court of equity will, upon proper pleadings, set aside such conveyance and agreement, and do equity between the parties, especially in favor of an aged woman in the condition of the plaintiff at the time of the execution of the papers in question. The principles upon which the rule is based are exhaustively considered in the cases cited, and need no repetition. It is enough to say that they go upon the theory that property thus conveyed shall remain intact for the security of the conditions thus annexed to. the grant.\\\" Morgan v. Loomis, 78 Wis. 594, 48 N.W. 109, 111.\\n\\\"The facts alleged are not sufficient to constitute a cause of action for specific performance, for the reason that the consideration which appellant agreed to pay on his part included intimate personal services of himself and his wife, expressed by the stipulation that they should 'make a home for the appellee, board and care for him.' It is obvious that the court would have no means of compelling the appellant and his wife during the remainder of appellee's life to perform all those intimate services due from a son and daughter-in-law which are implied by the undertaking to make a home for the father and to care for him; and a court will not compel one party to perform when performance by the other cannot also be enforced.\\\" Hoppes v. Hoppes, 190 Ind. 166, 129 N.E. 629, 630.\\n\\\" There is in such transactions an element of confidence reposed by the old people in their 'grantee, sacred in its nature, a breach of which, and retention of the benefits, no court should tolerate by a refinement upon technical rules and principles of law. By the modern trend of authority these transactions are placed in 'a class by themselves, and enforced without reference to the 'form or phraseology of the writing by which they are expressed, dr whether by the strict letter of the law a forfeiture of the estate is expressly provided for. The Wisconsin Supreme Court recently has taken a broad view of such contracts, and laid down a rule which commends itself as fair and equitable, and results in effectuating the intention of the parties to the transaction. The agreement of support, whatever its form, is construed by that court as a condition subsequent, and not a mere covenant.\\\" Bruer v. Bruer et al., 109 Minn. 260, 123 N.W. 813, 814, 28 L.R.A.,N.S., 608.\\nAlso, see Berry v. Heiser, 271 Ill. 264, 111 N.E. 99; Stephens et al. v. Daly, 49 App.D.C. 389, 266 F. 1009; Roudebush v. Gannon et al., 92 Wash. 508, 159 P. 680; Cooper v. Gum, 152 Ill. 471, 39 N.E. 267; Chadwick v. Chadwick, 59 Mich. 87, 26 N.W. 288; Tysor v. Adams, 116 Va. 239, 81 S.E. 76, 51 L.R.A.,N.S., 1197; Gall v. Gall, 126 Wis. 390, 105 N.W. 953, 5 L.R.A.,N.S., 603; McClelland v. McClelland, 176 Ill. 83, 51 N. E. 559; Mooney v. Mooney, 208 Ala. 287, 94 So. 131; Lowman v. Crawford, 99 Va. 688, 40 S.E. 17; Fabrice et al. v. Von der Brelie, 190 Ill. 460, 60 N.E. 835; Knutson v. Bostrak, 99 Wis. 469, 75 N.W. 156; Ptacek et ux v. Pisa et al., 231 Ill. 522, 83 N.E. 221, 14 L.R.A.,N.S., 537; White, Executor, v. Bailey, 65 W.Va. 573, 64 S.E. 1019, 23 L.R.A.,N.S., 232; O'Ferrall v. O' Ferrall et al., 276 Ill. 132, 114 N.E. 561; Payette v. Ferrier et al., 20 Wash. 479, 55 P. 629; Leary v. Corvin et al., 181 N.Y. 222, 73 N.E. 984, 106 Am.St.Rep. 542, 2 Ann.Cas. 664; Lane et al. v. Lane, 106 Ky. 530, 50 S.W. 857; Schell v. Plumb et al., 55 N.Y. 592; Grant v. Bell et ux., 26 R.I. 288, 58 A. 951; Sherrin et al. v. Flinn, 155 Ind. 422, 58 N.E. 549; Thorbahn v. Walker's Estate, supra; Washington Market Co. v. District of Columbia, supra; Spencer v. Williams, supra, Perry v. Neel, supra.\\nThe case is no different than if plaintiff had paid $3500 in cash for the promise. He parted with his debt as he would have with the money in the supposed case. He never owned any interest in the land in question nor did he convey any to defendant; and the parties had no agreement by the terms of which defendant is entitled to an equitable lien thereon.\\nAssuming that plaintiff was, at the time of the agreement, entitled to (and could have obtained) a statutory lien against the property in question to secure his debt; and assuming that, in a proper case, this court would lay hold upon this fact as a ground (or excuse) for impressing an equitable lien to secure the amount due an aged person coming within the class entitled to relief, upon the theory of a right to rescis* sion; could we do so in this case, in which none of the reasons for the rule exist, and in which no such issue was made by the pleadings or proof? The sole and only ground proved or claimed (the allegations did not conform to the proof in some respects) for granting to plaintiff this extraordinary relief, is the fact that at his solicitation defendant accepted his offer to cancel a debt in consideration of an agreement to board him for life, etc., which, after a number of years, was breached by defendant because of inability to perform further. These facts are not grounds for such relief.\\nIt is claimed that if plaintiff was not entitled to a lien, yet the court should have entered judgment for the amount of damages to which the parties had agreed that the plaintiff was entitled, upon the theory that as equity had obtained jurisdiction of the parties and the subject matter of the action it could adapt the relief to the facts and enter a proper judgment in order to prevent a failure of justice. The rule under the code system is: \\\"Thus it may be regarded as a settled rule, resulting from the statutory provision in question, that if a plaintiff has set forth facts constituting a ca.use of action, and entitling him to some relief, either legal or equitable, his action shall not be dismissed because he has misconceived the nature of his remedial right, and has asked for a legal remedy when it should have been equitable, or an equitable remedy when it should have been legal. A suit does not now fail because the plaintiff has erred as to the form or kind or extent of the remedy he demands. A party .cannot be sent out of court merely because the facts alleged do not entitle him to relief in equity, if the case which he states shows him entitled to any relief, either legal or equitable, his com plaint is not to be dismissed because he has prayed for a judgment that is not embraced by the facts. \\\" Pomeroy's Code Remedies, Sec. 11.\\nBut it was plaintiff's theory in the district court that he was entitled to an equitable lien upon the property in question to secure his debt which represented an interest in the property, not to recover a judgment or foreclose such lien. No other question was presented to the district court by either party, and it cannot be raised for the first time in this court. Thomas et al. v. Johns, 35 N.M. 240, 294 P. 327.\\nIt is not the duty of the district court to grant relief not requested in some manner by plaintiff, and not within the theory upon which his case was tried. The court might rightfully conclude that plaintiff did not desire a judgment at law for the debt, even though the court was authorized to enter it.\\nAs we view the case, plaintiff's remedy was a suit for breach of contract. The fact that the contract is a continuing one does not prevent a determination of the damages as of the time of its breach. Roehm v. Horst, 178 U.S. 1, 20 S.Ct. 780, 44 L.Ed. 953.\\nIf the parties have agreed upon the measure of damages as the evidence seems to indicate, their agreement is binding on this court. Marchant v. McDonald, 37 N.M. 171, 20 P.2d 276.\\nThe plaintiff had a remedy by judgment at law and execution thereon, or by attachment, notwithstanding the alleged fraudulent transfer of the property, N.M. Sts.1929, Sec. 46-124 and Sec. 105-1601; or perhaps by creditor's bill, Huneke v. Dold, 7 N.M. 5, 32 P. 45; Early Times Distillery Co. v. Zeiger, 9 N.M. 31, 49 P. 723; or by judgment, execution and supplementary proceedings subsequent to execution. N.M. Sts.1929, Sec. 46-125. But he had no' interest in, or claim on, the real estate by reason of his. contract for support and its breach. ! \\u2022\\nAssuming that the facts alleged authorized a personal judgment against the defendant, or constituted a sufficient creditor's bill (Early Times Distillery Co. v. Zeiger, supra); yet it appears that the case was instituted and tried in the district court solely upon the theory that plaintiff had some interest in this property, represented by his claim against defendant, by reason of which he was entitled to have impressed against it an equitable lien.\\nParties cannot upon appeal change their contentions, shift their positions nor advance new and different theories from those made and advanced in the trial court. American Investment Co. v. Lyons, 29 N.M. 1, 218 P. 183; Smith v. Borradaile, 30 N.M. 62, 227 P. 602; Springer Ditch Co. v. Wright, 31 N.M. 457, 247 P. 270; Albuquerque Lbr. Co. v. Tomei, 32 N.M. 5, 250 P. 21.\\nThe decree of the district court is affirmed, reserving to plaintiff his right of action at law, or by creditor's bill if he so elects.\\nIt is so ordered.\\nBICKLEY, SADLER, and ZINN, JJ., concur.\"}"

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+"{\"id\": \"1571030\", \"name\": \"Gloria Sue PATTERSON and Stanley R. Patterson, Plaintiffs-Appellants, v. Larry J. VAN WIEL, M.D., Albuquerque Anesthesia Service, Ltd., and Presbyterian Hospital Center, Inc., Defendants-Appellees\", \"name_abbreviation\": \"Patterson v. Van Wiel\", \"decision_date\": \"1977-08-30\", \"docket_number\": \"No. 2805\", \"first_page\": \"100\", \"last_page\": 107, \"citations\": \"91 N.M. 100\", \"volume\": \"91\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T20:45:02.873560+00:00\", \"provenance\": \"CAP\", \"judges\": \"LOPEZ, J., and REUBEN E. NIEVES, District Judge, concur.\", \"parties\": \"Gloria Sue PATTERSON and Stanley R. Patterson, Plaintiffs-Appellants, v. Larry J. VAN WIEL, M.D., Albuquerque Anesthesia Service, Ltd., and Presbyterian Hospital Center, Inc., Defendants-Appellees.\", \"head_matter\": \"570 P.2d 931\\nGloria Sue PATTERSON and Stanley R. Patterson, Plaintiffs-Appellants, v. Larry J. VAN WIEL, M.D., Albuquerque Anesthesia Service, Ltd., and Presbyterian Hospital Center, Inc., Defendants-Appellees.\\nNo. 2805.\\nCourt of Appeals of New Mexico.\\nAug. 30, 1977.\\nJ. Jerome Maxwell, Albuquerque, for plaintiffs-appellants.\\nRanne B. Miller, Keleher & Mcleod, Albuquerque, for Larry J. Van Wiel, M.D. & Albuq. Anesthesia Serv.\\nEric D. Lanphere, Johnson, Paulantis & Lanphere, Albuquerque, for Presbyterian Hospital Center.\", \"word_count\": \"3591\", \"char_count\": \"21557\", \"text\": \"OPINION\\nSUTIN, Judge\\nPlaintiffs sued Dr. Larry J. Van Wiel, an anesthesiologist, and Albuquerque Anesthesia Service, Ltd., his employer, for medical malpractice in administering an epidural anesthetic to plaintiff Gloria Sue Patterson (Gloria). Plaintiffs also sued Presbyterian Hospital Center, Inc. (Presbyterian) for negligent failure to furnish and have available necessary emergency equipment for injuries suffered following the anesthetic given by Van Wiel. Defendants were awarded summary judgment and plaintiffs appeal. We affirm.\\nA.General Facts of Case\\nOn January 6, 1973, Gloria entered Presbyterian for the delivery of her child. Her physician was Dr. Stephen Michael Kranz, an obstetrician and gynecologist. Induction of labor was not successful on the first day, and on the following day, January 7, induction was restarted. During the evening of January 7, her contractions became regularized and she went into \\\"good\\\" labor. At 12:15 a.m., January 8, Dr. Kranz made a request for an epidural or caudal anesthetic.\\nThe nurse on duty in the labor room advised Van Wiel that Dr. Kranz wanted an anesthetic administered. Van Wiel came into the labor room and gave Gloria a lumbar epidural anesthetic. She suffered a respiratory arrest which went into a cardiac arrest for less than a minute. Resuscitation was immediately undertaken and the baby was born.\\nB. Issues on Appeal\\n(1) Did Van Wiel obtain the informed consent of Gloria for the giving of the anesthetic?\\n(2) Was emergency equipment immediately available?\\nC. Law on Summary Judgment\\nIt requires no citation of authority of the law on summary judgment. First, defendants must make a prima facie showing that no genuine issue of material fact existed on the subject of informed consent given by Gloria to Van Wiel to administer the anesthetic, and that Presbyterian had emergency equipment available immediately after the anesthetic was given Gloria. Second, when this prima facie showing has been made, the burden shifts to the plaintiff to show that there is additional proof to the contrary which creates a genuine issue of material fact. If plaintiff fails to carry the burden, defendants are entitled to summary judgment as a matter of law.\\nD. Gloria gave Van Wiel consent to administer the anesthetic\\nVan Wiel established the following uncontroverted facts:\\nWhen he came into the labor room, he identified himself, and told her that he had been notified that she would like to have an epidural. He said something to the effect that, \\\"I understand you're ready for an anesthetic,\\\" or, \\\"Would you like to have one now?\\\" She told him that he could give her an epidural, and he told her how it would be done, that she would be put on her side, put a \\\"local\\\" in her back, put the needle in and inject the medicine and expect that she would become numb from the waist down. He also told her that with any kind of anesthetic there is some kind of risk involved; that the risk of serious complications was about one to one thousand. He asked if she had any questions, and she did not have any. \\\"She was in much discomfort at that time; she was anxious to re ceive an anesthetic.\\\" She understood the nature of his questions and there was no impairment to her ability to consent to the anesthetic.\\nThis constituted a prima facie showing that Gloria expressly consented to the anesthetic. Consent may be oral or written. Van Wiel gave a full and frank disclosure to Gloria of all pertinent facts relative to the anesthetic. Woods v. Brumlop, 71 N.M. 221, 377 P.2d 520 (1962); Demers v. Gerety, 85 N.M. 641, 515 P.2d 645 (Ct.App.1973) (Sutin, J., specially concurring), rev'd on other grounds, 86 N.M. 141, 520 P.2d 869 (1974), rev'd, 87 N.M. 52, 529 P.2d 278 (Ct.App.1974).\\nThere is no evidence nor any fact in the record that Gloria, by language, act or conduct, refused to consent to the anesthetic given by Van Wiel. She had no memory of the presence of Van Wiel or the anesthetic shot in her back. She could not recall Van Wiel telling her anything about anesthetics. There is no evidence that Gloria suffered any brain damage nor any evidence that Van Wiel's treatment caused any impairment of memory. She was examined by a neurosurgeon and a psychiatrist, but the record is silent on their opinions. To fulfill the burden imposed on plaintiff, they had a duty to seek the opinion of an expert to determine why Gloria could not remember or recall this serious and exciting event in her life. If they did perform this duty, the results were adverse. If they did not, Gloria's lack of memory is synonymous with silence. Silence cannot defeat Van Wiel's motion for summary judgment. Baca v. Britt, 73 N.M. 1, 385 P.2d 61 (1963).\\nUpon her entrance into the hospital on January 6th, an employee of Presbyterian asked her to sign a form consenting to her being given an anesthetic. She told this employee that she had not discussed the matter with her doctor and she would not sign the consent form. She did not want an anesthetic. Dr. Kranz never discussed anesthetics with her in the hospital. Dr. Kranz is not a party to this action. Dr. Kranz may have negligently failed to advise Gloria of the need for or risk of receiving an anesthetic. Assuming arguendo Dr. Kranz' negligence or breach of duty, we cannot impute any liability to Van Wiel. No theory of imputation was pleaded by plaintiffs, suggested during trial, nor raised on appeal. Gloria could remember all the facts before and after the anesthetic was given, but for reasons which cannot be explained, she did not tell Van Wiel that she did not want an anesthetic. The law does not provide a way that we can use athletically to jump over uncontroverted facts and land on a refusal to consent.\\nE. Van Wiel and Presbyterian were not negligent as a matter of law\\nPlaintiffs' argument consists of a recitation of the facts. Van Wiel and Presbyterian meander through the facts and plaintiffs conclude that this case should be presented to the jury with instructions that they consider non-expert testimony and surrounding circumstances in conjunction with expert testimony in determining the question of negligence. No authority has been cited on those guidelines which affect the liability of doctors and hospitals on the availability of emergency equipment.\\nVan Wiel and Presbyterian established the following facts:\\nShortly after the anesthesia was administered, the patient started to show signs of difficulty in breathing and there was a drop in blood pressure. Gloria became somewhat cyanotic \\u2014 a bluish or purplish discoloration of the skin due to a deficient oxygenation of the blood. For less than a minute she may have had a cardiac arrest. In response to the drop in blood pressure, Van Wiel had the drug ephedrine administered through an intravenous device set up and placed in operation prior to administering the anesthesia. To assist her in breathing, initially, he used an oxygen mask and then an \\\"ambu-bag.\\\" An \\\"ambu-bag\\\" is a balloon-shaped face mask that, when squeezed, facilitates the patient's breathing or it \\\"breathes for\\\" the patient. An expert on anesthesiology testified by affidavit as follows:\\nEmergency Treatment\\nA. I am familiar with and have personal knowledge of the emergency equipment available in and to the labor rooms at Presbyterian Hospital on January, 1973. The equipment included devices installed in each labor room to permit administration of oxygen; the anesthesia supply cart in the room during the administration of a lumbar epidural anesthesia contained drugs such as ephedrine that could be given intravenously in case of emergency; and an ambu-bag was located a few feet from each labor room. Additional equipment and drugs for use during emergencies were located in the delivery room (a surgical suite) only a few feet from the labor room in which Mrs. Patterson was treated.\\nB. Based upon my review of the materials herein it is my opinion that after Mrs. Patterson experienced a significant drop in blood pressure while in the labor room, Dr. Van Wiel and Dr. Kranz treated Mrs. Patterson in accordance with the accepted standard of care during 1973. Specifically, a medication, ephedrine, was administered in response to the drop in blood pressure. This is a drug that is used to treat a rapid drop in blood pressure and is maintained on the anesthesia cart for that specific purpose. It was given to Mrs. Patterson through the intervenous [sic] device that had been set up and placed in operation prior to the administration of anesthesia. In addition to the giving of ephedrine, Mrs. Patterson also received oxygen from the equipment located in the labor room.\\nC. During the period of time Mrs. Patterson was receiving emergency treatment in the labor room, her vital signs were being monitored by Dr. Van Wiel. As soon as he noted that her respiration was impaired, he requested from the nurse and received an ambu-bag which he used to ventilate (breath for) the patient after she could no longer do this on her own. The patient was transferred to the delivery room, at which time an endotracheal tube was placed, the tube was connected to a ventilating machine and the patient was mechanically ventilated thereafter until her own ability to ventilate was restored. Additional medications were administered in a timely fashion after the patient was transferred to the delivery room.\\nD. As indicated above, I reviewed the records with regard to the emergency treatment by Dr. Van Wiel and Dr. Kranz and it is my opinion that the drugs and medications prescribed and administered in response to the emergency that then existed and the transfer of the patient to the delivery room for mechanical ventilation, were in full accord with the existing procedures for treatment of such emergencies in January, 1973. It is further my opinion that the rapid response of Dr. Van Wiel and Dr. Kranz to the condition that presented itself following the administration of the primary dose of anesthesia and the superior care rendered to the patient at that time was instrumental in saving the patient's life and the life of the yet undelivered baby.\\nE. It is my opinion that in treating Mrs. Patterson for the complication following the administration of anesthetic in January 1973, Dr. Van Wiel and Dr. Kranz had at their disposal all the standard emergency equipment and supplies; utilized all emergency equipment and supplies in a superior manner, and followed the proper procedures in treating the patient in this emergency situation. It is my opinion that Mrs. Patterson did not sustain any injury as a result of not having any emergency equipment available or of not being treated properly under the circumstances. In his treatment of Mrs. Patterson for the complication occurring after the administration of anesthesia, it is my opinion that Dr. Van Wiel did possess and apply the knowledge and used the skill and care which would be used by reasonably well-qualified anesthesiologists practicing under similar circumstances in Albuquerque, New Mexico in January of 1973.\\n(1) Van Wiel was not negligent\\nVan Wiel established that there was no genuine issue of material fact on the availability and utilization of emergency equipment.\\nPlaintiffs' facts differ from the above in these respects: (1) When Gloria had her first difficulty breathing, it was necessary for the nurse to leave the labor room, go down to a desk down the hall to obtain the oxygen mask. She could not estimate the amount of time involved even though she said it would not take more than a minute, if it would even take that to get the mask. (2) There was no emergency equipment in the labor room. It was all over the obstetric department. (3) The \\\"ambu-bag\\\" was not in the labor room. It was in the recovery room. The nurse did not know exactly where the \\\"ambu-bag\\\" was. She went to the desk to look for it, and requested another nurse to look for it in the recovery room. The other nurse located the \\\"ambu-bag\\\" and it was taken to the labor room. At this time, Drs. Kranz and Van Wiel were moving the bed out of the labor room to the delivery room. (4) There is a conflict in the testimony as to the people who were present and as to the sequence of events.\\nWe have carefully scrutinized the testimony, the facts and reasonable inferences to be drawn therefrom upon which plaintiffs rely. None of it establishes a genuine issue of material fact whether Van Wiel failed to exercise that degree of care that an anesthesiologist would use under the same or similar circumstances that Van Wiel exercised in the care of Gloria with the emergency equipment available. There was no evidence that Van Wiel had any knowledge that Gloria had experienced any difficulty in taking anesthesia. Graddy v. New York Medical College, 19 A.D.2d 426, 243 N.Y.S.2d 940 (1963), motion to dismiss appeal denied upon condition, 13 N.Y.2d 1175, 248 N.Y.S.2d 54, 197 N.E.2d 541 (1964); see, Matlick v. Long Island Jewish Hospital, 25 A.D.2d 538, 267 N.Y.S.2d 631 (1966). Plaintiff would have to produce some evidence that an anesthesiologist would not have given the anesthesia without an oxygen mask or \\\"ambu-bag\\\" in the labor room. There was one out of a thousand chances that this emergency would have arisen.\\nIt is claimed that the expert testimony provided by defendants took over the function of the jury. We disagree. The function of the jury begins when a conflict of the evidence arises over the material facts in a case. This conflict could not arise without the testimony of an expert as to the conduct of Van Wiel during the emergency. We know of no other legal method provided by law to establish a conflict. Plaintiffs contend that the negligence of a doctor can be demonstrated by facts which can be evaluated by resort to common knowledge. Mascarenas v. Gonzales, 83 N.M. 749, 497 P.2d 751 (Ct.App.1972). This is true. But plaintiffs did not define what is meant by \\\"common knowledge.\\\"\\nEnglish v. Miller, 43 S.W.2d 642, 644 (Tex.Civ.App.1931) says:\\nCommon knowledge as a rule of evidence is universally applied by the courts to the operation and effect of natural forces and to such scientific and mechanical facts and principles as are of such universal notoriety that they may be regarded as a part of the common knowledge of all persons.\\nShelley v. Chilton's Adm'r, 236 Ky. 221, 32 S.W.2d 974, 977 (1930) says:\\nCommon knowledge includes matters of learning, experience, history, and facts of which judicial notice may be taken.\\nSee also, Strain v. Isaacs, 59 Ohio App. 495, 13 Ohio Op. 258, 18 N.E.2d 816 (1938); Roden v. Connecticut Co., 113 Conn. 408, 155 A. 721 (1931).\\nFor examples, it is a matter of common knowledge that people smoke and light matches around motor vehicles, Stephens v. Dulaney, 76 N.M. 181, 413 P.2d 217 (1966); that snow one-fourth of an inch thick or one or two inches in depth is slippery and could cause a fall is common knowledge, Carter v. Davis, 74 N.M. 443, 394 P.2d 594 (1964), overruled on other grounds, Proctor v. Waxler, 84 N.M. 361, 503 P.2d 644 (1972).\\nHowever, \\\"[mjatters of common knowledge are not limited to those matters of which practically everyone has knowledge. In a complex society such as ours there are in many fields of activity matters which are within the knowledge of all those who are associated with the activity of which the general public knows little or nothing.\\\" Ritholz v. Johnson, 244 Wis. 494, 12 N.W.2d 738, 741 (1944).\\nWe cannot conclude that the conduct of an anesthesiologist exercising the function of caring for a patient during an emergency is a matter of common knowledge. Members of an average jury would know little or nothing about this activity, including the question of whether emergency equipment must be available in a labor room of a hospital when an anesthetic is given to a patient delivering a child. Expert testimony is essential to guide the jury.\\nGranted that it would be difficult, if not impossible to find an anesthesiologist in Albuquerque, or in New Mexico, to support plaintiffs' claim of negligence, inquiry nationally among competent members of this profession could assist the plaintiff to determine whether Van Wiel was negligent. The affidavit of one anesthesiologist that Van Wiel was negligent would bar summary judgment. Having failed in this regard, Van Wiel was not negligent as a matter of law.\\n(2) Presbyterian was not negligent\\nThe facts applicable to Van Wiel are applicable to Presbyterian. There is a standard of care which hospitals must follow. On this subject, we received no assistance from the parties.\\nThe standard of care is a matter of first impression in New Mexico.\\nThroughout the United States, five different standards have been identified. According to Annot.: Locality Rule as Governing Hospital's Standard of Care to Patient And Expert's Competency to Testify Thereto, 36 A.L.R.3d 440-41 (1971), the measure of a hospital's duty of care to a patient is that degree of care and diligence used by hospitals generally in\\n(a) the community;\\n(b) similar communities;\\n(c) the locality or area;\\n(d) similar localities;\\n(e) the general or national standard.\\nSee, 41 C.J.S. Hospitals \\u00a7 8c(3) (1944); 40 Am.Jur.2d Hospitals and Asylums \\u00a7 26 (1968). The terms \\\"community,\\\" \\\"locality\\\" and \\\"area\\\" are interchangeable. These categories may be reduced to three standards: (a)the \\\"community,\\\" (b) \\\"similar communities,\\\" and (c) the \\\"general or national standard.\\\"\\nA review of the cases shows:\\n(a) The \\\"community\\\" rule is slowly losing its validity as a part of the standard because many communities have only one hospital. To adhere to this rule means that a hospital whose conduct is attacked will be measured only by standards which it has set for itself. A hospital could establish a negligent standard of care and avoid liability by pointing to its own conduct as the standard by which its negligence should be tested. Dickinson v. Mailliard, 175 N.W.2d 588 (Iowa 1970), 36 A.L.R.3d 425 (1971); Faris v. Doctor's Hospital, Inc., 18 Ariz.App. 264, 501 P.2d 440 (1972); Hiatt v. Groce, 215 Kan. 14, 523 P.2d 320 (1974); Carrigan v. Sacred Heart Hospital, 104 N.H. 73, 178 A.2d 502 (1962).\\n(b) These authorities adopt the \\\"similar communities\\\" standard, that is competent to show the standards and practices generally in hospitals, not only in the community itself, but in similar communities under like circumstances.\\n(c) The general or national standard is an innovation in the law. This standard omits the \\\"locality\\\" rule. It means \\\"that a hospital is required to use that degree of care and skill which is expected of a reasonably competent hospital in the same or similar circumstances.\\\" Shilkret v. Annapolis Emergency Hospital Ass'n, 276 Md. 187, 349 A.2d 245, 254 (1975). This concept is based upon the fact that hospitals are subject to a rigorous regulatory scheme of the state, and they are nationally accredited under the Joint Commission on Hospital Accreditation.\\nPrivate hospitals in New Mexico are not regulated by statute. We have no knowledge whether they are nationally accredited. We conclude that the \\\"similar communities\\\" standard has emerged as a fair standard and should be adopted at this time.\\nIn New Mexico, a hospital is required to use that degree of care,, skill and knowledge which is expected of a reasonably competent hospital in the community or in similar communities under the same or similar circumstances.\\nUnder this standard, an admissible evidentiary showing is two-fold: (1) If the standard used is that of a comparable hospital in a similar community, a foundation must be laid that the community is similar and the hospital operates under the same or similar circumstances, and (2) upon such a showing, an expert familiar with that similar community standard is ordinarily necessary to explain the standard applicable to a reasonably competent hospital.\\nHiatt v. Groce, supra, says:\\nExpert medical testimony is ordinarily required to establish negligence on the part of either a physician or a hospital in their care and treatment of a patient, unless the medical procedures employed are so patently bad that negligence or lack of skill is manifest to a lay observer or other acts complained of could be regarded as negligent by applying the common knowledge and experience of mankind. [523 P.2d at 324.]\\nFaris v. Doctor's Hospital, Inc., supra.\\nUnder this rule, an expert medical witness is competent to testify, even though he does not practice in the community, if he has acquired knowledge of the degree of care and skill used by hospitals generally in the community. Barnes v. St. Francis Hosp. & School of Nursing, Inc., 211 Kan. 315, 507 P.2d 288 (1973).\\nIn the instant case, expert medical testimony was necessary. Savage v. Christian Hospital Northwest, 543 F.2d 44 (8th Cir. 1976); Washington Hospital Center v. Butler, 127 U.S.App.D.C. 379, 384 F.2d 331 (1967). None was presented by plaintiff. Presbyterian was not negligent as a matter of law.\\nAffirmed.\\nIT IS SO ORDERED.\\nLOPEZ, J., and REUBEN E. NIEVES, District Judge, concur.\"}"

nm/1571154.json

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+"{\"id\": \"1571154\", \"name\": \"STATE of New Mexico, Petitioner-Appellant, v. John DOE, a child, Respondent-Appellee\", \"name_abbreviation\": \"State v. Doe\", \"decision_date\": \"1977-10-25\", \"docket_number\": \"No. 3196\", \"first_page\": \"158\", \"last_page\": 159, \"citations\": \"91 N.M. 158\", \"volume\": \"91\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T20:45:02.873560+00:00\", \"provenance\": \"CAP\", \"judges\": \"HERNANDEZ and LOPEZ, JJ., concur.\", \"parties\": \"STATE of New Mexico, Petitioner-Appellant, v. John DOE, a child, Respondent-Appellee.\", \"head_matter\": \"571 P.2d 425\\nSTATE of New Mexico, Petitioner-Appellant, v. John DOE, a child, Respondent-Appellee.\\nNo. 3196.\\nCourt of Appeals of New Mexico.\\nOct. 25, 1977.\\nToney Anaya, Atty. Gen., Roderick A. Dorr, Asst. Atty. Gen., Santa Fe, for petitioner-appellant.\\nLowell Stout, Hobbs, for respondent-appellee.\", \"word_count\": \"465\", \"char_count\": \"2890\", \"text\": \"OPINION\\nWOOD, Chief Judge.\\nThe Children's Court petition alleged the child had committed embezzlement, was delinquent and in need of care or rehabilitation. The Children's Court dismissed the petition with prejudice. The State is attempting to appeal.\\nWe assigned this case to the limited calendar. The calendar assignment invited the parties \\\"to brief the question as to whether the State may appeal this case.\\\"\\nThe child responded by moving to dismiss because of the constitutional prohibition against double jeopardy. The child relies on Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975). Breed held that a juvenile was put in jeopardy at an adjudicatory hearing; that is, \\\"at a proceeding whose object is to determine whether he has committed acts that violate a criminal law\\\". Jeopardy attached when the Children's Court, as the trier of facts, began to hear evidence. Breed, supra.\\nThe Double Jeopardy Clause protects against a second trial for the same offense after acquittal. United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975).\\nThe State's response to the motion to dismiss is that appellate counsel has insufficient facts to determine whether the Double Jeopardy Clause applies to this case; the State asks that a ruling on the motion be delayed until the transcript is filed in this Court.\\nThe docketing statement asserts that the dismissal came after an evidentiary hearing at which the child's confession was excluded. After the confession was excluded, the State tendered further evidence. After this tender, the petition was dismissed. The State does not contest the accuracy of these representations in the docketing statement. The record shows this case was set for trial on the merits. The Children's Court order states: \\\"The evidence adduced by the State was legally inadmissable to establish that the respondent committed a delinquent act and/or that the respondent is in need of supervision or rehabilitation.\\\"\\nThe only showing, undisputed, is that the petition was dismissed after a trial on the merits at which the State's evidence was held to be insufficient. This case does not involve dismissal on the basis of a pretrial motion. See Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed. 265 (1975). The dismissal after hearing evidence on the merits of the charge, and the ruling that the State's evidence was insufficient, was an acquittal.\\nFurther proceedings against the child by the State are barred by the Double Jeopardy Clause.\\nThe appeal is dismissed.\\nIT IS SO ORDERED.\\nHERNANDEZ and LOPEZ, JJ., concur.\"}"

nm/1573105.json

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+"{\"id\": \"1573105\", \"name\": \"Mary Agnes SILVA, Personal Representative of David Gurule, Deceased, Plaintiff-Appellant, v. CITY OF ALBUQUERQUE, Albuquerque Police Department, John Kraenzel and Francis Ford, Defendants-Appellees\", \"name_abbreviation\": \"Silva v. City of Albuquerque\", \"decision_date\": \"1980-04-01\", \"docket_number\": \"No. 4231\", \"first_page\": \"332\", \"last_page\": 335, \"citations\": \"94 N.M. 332\", \"volume\": \"94\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T21:25:35.919134+00:00\", \"provenance\": \"CAP\", \"judges\": \"LOPEZ and ANDREWS, JJ., concur.\", \"parties\": \"Mary Agnes SILVA, Personal Representative of David Gurule, Deceased, Plaintiff-Appellant, v. CITY OF ALBUQUERQUE, Albuquerque Police Department, John Kraenzel and Francis Ford, Defendants-Appellees.\", \"head_matter\": \"610 P.2d 219\\nMary Agnes SILVA, Personal Representative of David Gurule, Deceased, Plaintiff-Appellant, v. CITY OF ALBUQUERQUE, Albuquerque Police Department, John Kraenzel and Francis Ford, Defendants-Appellees.\\nNo. 4231.\\nCourt of Appeals of New Mexico.\\nApril 1, 1980.\\nStephen M. Simone, Farlow & Bradley, P. A., Albuquerque, for plaintiff-appellant.\\nRobert K. Patten, Asst. City Atty., Albuquerque, for City of Albuquerque.\\nJ. E. Casados, Gallagher, Casados & Martin, P. C., Albuquerque, for Albuquerque Police Dept., John Kraenzel and Francis Ford.\", \"word_count\": \"1696\", \"char_count\": \"10454\", \"text\": \"OPINION\\nWALTERS, Judge.\\nPlaintiff's decedent ran a red light within the City of Albuquerque. An officer who stopped in a police car at the intersection saw the violation and he proceeded after the deceased. When he caught up with him, he turned on his vehicle's red lights. Instead of slowing or stopping, plaintiff's decedent accelerated and tried to outrun the police car. Several miles later, decedent lost control of his vehicle, crashed into a tree and a house, and suffered fatal injuries. His personal representative appeals a summary judgment granted to the police officers, the police department, and the City of Albuquerque. We affirm.\\nAnalogizing the summary judgment in this case to the directed verdict entered in Strickland v. Roosevelt Co. Rural Elec. Coop., 19 N.M.St.B.Bull. 205, 94 N.M. 459, 612 P.2d 689 (Ct.App.), N.M., cert. granted, Feb. 26, 1980, plaintiff argues that the acts of negligence alleged against the officers, and vicariously against the City and the Police Department, should have been presented to the jury.\\nThe opinion in Strickland said:\\nLimited to contributory negligence cases [which appears to have been the basis for the entry of summary judgment in the instant case and for the directed verdict in Strickland], we hold that where a defendant leads a plaintiff to a place of danger in which plaintiff's lips are sealed by reason of death, and defendant is the sole eyewitness of decedent's conduct, defendant's testimony, though uncontradicted and undisputed, is not conclusive on the issue of decedent's contributory negligence; that the credibility of defendant's testimony, no matter how plausible is a question of fact for the jury. The trial court shall assume that decedent was in the exercise of ordinary care at the time of his death; that an issue of fact exists on the question of .his contributory negligence to avoid a directed verdict and get plaintiff to the jury. (Our emphasis.)\\nId. at 211.\\nStrickland, an opinion with which one judge of this court concurred in the result and another judge dissented, constitutes a \\\"judgment\\\" according to Art. VI, \\u00a7 28 of the New Mexico Constitution, and a \\\"decision\\\" under \\u00a7 34-5-11, N.M.S.A.1978. But it is not an opinion expressing the views of a majority of this court as now constituted; and, because one of the participating judges concurred only in the result reached, we may reasonably conclude that the rationale of the opinion does not even express the view of a majority of the panel which considered that case.\\nRegardless of its precedential value, however, the Strickland rule cannot be applied to summary judgment procedures. Unlike a motion for directed verdict, defendant does not admit negligence when he presents facts outside the pleading and argues for summary judgment on the theory that plaintiff was contributorily negligent as a matter of law. Thus, if the sole eyewitness version is not to be believed, unless there are physical facts which point unerringly to a true version of the incident, cf. Ortega v. Koury, 55 N.M. 142, 227 P.2d 941 (1951), or . cumstantial evidence from which a reasonable contrary inference may be drawn, see State v. Jones, 39 N.M. 395, 48 P.2d 403 (1935), then there remains no evidence from which a judge or jury could infer either plaintiff's or defendant's negligence. In such a case, plaintiff fails to make out a case against defendant, and summary judgment should be granted because no material issue of fact on defendant's negligence exists. See N.M.R.Civ.P. 56(c), 1978.\\nThat was the posture of this case when the trial judge granted summary judgment. The two pursuing police officers had given deposition testimony describing decedent's conduct and loss of control. Plaintiff has argued in this court that the police officers were negligent in continuing pursuit of the decedent when it became clear he was not going to stop; that the decedent should have been boxed in between police vehicles and forced to slow down; that the police should have used a public address system to talk to the fleeing driver, or that a traffic blockade should have been set up to compel decedent to stop. The police having failed to take any of the suggested actions, plaintiff says the chase should have been terminated, and if it had, the accident probably would not have occurred.\\nSomehow, appellant takes no note of the incongruity inherent in this argument, since it is firmly bottomed on the admission that decedent, throughout the pursuit by police, was refusing to stop or to obey the statute requiring him to stop. See \\u00a7 66-7-332, N.M.S.A.1978. Even if the police officers were required to undertake any of the other actions appellant urges (and we can imagine instances when injury to innocent third parties might occur because pursuit of a traffic offender had become dangerous to others), the availability of the options suggested in no way excuses decedent's own negligent and reckless conduct. An alternative which appellant has ignored in her argument is the simple and more expedient termination of the chase by decedent's obedience to the police officer's signals to stop.\\nConsequently, the trial court was faced with only two possible analyses of the accident: (1) that, believing the deposition testimony, decedent lost control at a high rate of speed as testified to by the officers, thus establishing decedent's contributory negligence; or (2) that, disregarding the depositions and absent any other evidence on the happening, decedent somehow suffered a one-car accident. Without some evidence before the court, neither a judge nor jury would be permitted to disbelieve the eyewitnesses and then speculate that the police car cut in and forced decedent off the road as appellant proposed during oral argument. Even if the police pursuit caused decedent to panic and lose control, another suggestion made in this appeal, how could decedent escape being held responsible for his own concurring negligence which proximately contributed to the accident?\\nSeveral courts have considered the question of the negligence of a driver who suffers an accident while intentionally attempting to outdistance an officer pursuing him, and without exception those courts have held the fleeing driver negligent as a matter of law. See, e. g., Rhea v. Green, 29 Colo.App. 19, 476 P.2d 760 (1970); MacDonald v. Hall, 244 A.2d 809 (Me.1968). In Chambers v. Ideal Pure Milk Co., 245 S.W.2d 589, 590-91 (Ky.1952), where an injured third person sued police officers who were chasing. Shearer, the driver of the automobile which crashed into Ideal's vehicle, the court found the officer's conduct \\\"not the legal or proximate cause of the accident.\\\" It reasoned:\\nThe police were performing their duty when Shearer, in gross violation of his duty to obey the speed laws, crashed into the milk wagon. To argue that the officers' pursuit caused Shearer to speed may be factually true, but it does not follow that the officers are liable at law for the results of Shearer's negligent speed. Police cannot be made insurers of the conduct of the culprits they chase. (Our emphasis.)\\nThe same can be said in this case. If the officer's pursuit led decedent Gurule to speed, his conduct was nevertheless an unlawful response which violated both the speed laws and his statutory obligations to stop. One who violates a statute is negligent as a matter of law. Dahl v. Turner, 80 N.M. 564, 458 P.2d 816 (Ct.App.1969); N.M. U.J.I. (Civ.) 11.1. If the accident resulted from plaintiff's decedent's negligent excessive speed, regardless of the initial impetus for his unlawful speeding, defendants cannot be held liable for that result.\\nIt has even been held that since officers have a legal duty to pursue a fleeing vehicle, they cannot be held negligent in giving chase. Bailey v. Edison Charitable Foundation, 152 Ind.App. 460, 284 N.E.2d 141 (1972).\\nNothing in this record would allow a reasonable inference that the accident did not proximately result from decedent's excessive speed. We cannot agree with appellant's argument that the police set in motion the events, and \\\"but for the negligence of the police in their pursuit, the accident would never have occurred. A reasonable inference from the facts could therefore be that the loss of control was not a proximate cause.\\\" Appellant might as well argue that had decedent never have gotten behind the wheel the accident would never have occurred, either. But he did take the vehicle; he did fail to obey lawful directions to stop; he did attempt to evade arrest by leading a high-speed chase through city, interstate and residential streets; and, finally, he did lose control of his car and crash into a house. How could his loss of control not be a proximate cause, when proximate cause is defined as \\\"that which in a natural and continuous sequence produces the injury, and without which the injury would not have occurred\\\"? N.M.U.J.I. 12.10. This argument by appellant is devoid of any legal logic. If plaintiff negligently and proximately contributes to his injuries, he is barred from recovery. See Montoya v. Williamson, 79 N.M. 566, 446 P.2d 214 (1968); Restatement (Second) Torts, \\u00a7 467.\\nThe long and short of this appeal may be succinctly stated: On the evidence before the trial court, if believed, plaintiff's decedent was contributorily negligent as a matter of law and summary judgment was proper. McFarland v. Helquist, 92 N.M. 557, 591 P.2d 688 (Ct.App.1979). If the officers' testimony was not believed, there was a void respecting any negligence of defendants which proximately caused the injuries alleged and thus, as a matter of law, no issue of fact upon which to impose liability against defendants. Summary judgment under that view was proper. See, Shriners Hosp. for Crippled Children v. Kirby Cattle Co., 89 N.M. 169, 548 P.2d 449 (1976).\\nThe judgment is affirmed.\\nLOPEZ and ANDREWS, JJ., concur.\"}"

nm/1573386.json

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+"{\"id\": \"1573386\", \"name\": \"MONTOYA et al. v. GURULE et al.\", \"name_abbreviation\": \"Montoya v. Gurule\", \"decision_date\": \"1934-12-11\", \"docket_number\": \"No. 3960\", \"first_page\": \"42\", \"last_page\": 44, \"citations\": \"39 N.M. 42\", \"volume\": \"39\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T02:11:32.333570+00:00\", \"provenance\": \"CAP\", \"judges\": \"SADLER, HUDSPETH, BICKLEY, and ZINN, JJ., concur.\", \"parties\": \"MONTOYA et al. v. GURULE et al.\", \"head_matter\": \"38 P.(2d) 1118\\nMONTOYA et al. v. GURULE et al.\\nNo. 3960.\\nSupreme Court of New Mexico.\\nDec. 11, 1934.\\nCrist & Pacheco, of Santa Fe, for plaintiffs in error.\\nM. E. Noble, of Las Vegas, for defendants in error.\", \"word_count\": \"1107\", \"char_count\": \"6632\", \"text\": \"WATSON, Chief Justice.\\nAt an election to choose members of the board of trustees of the Tecolote land grant, the parties to this proceeding in error were candidates. The defendants jn error contested the declared election of the plaintiffs in error and prevailed.\\nThe single question before us is whether the contest statute is applicable to an election of this kind. If not, the district court was without jurisdiction.\\nBy \\\"the 1927 Election Code?' it is provided .that \\\"any unsuccessful candidate for any public office may contest the election of the candidate to whom certificate of election has been issued in the manner herein provided.\\\" 1929 Oomp. St. \\u00a7 41-601. Upon this provision, defendants in error are compelled to rely, it being well understood that the right of contest and the jurisdiction to entertain it must be found in the statute law.\\nThere is controversy here as to whether the offices in question are \\\"public offices.\\\" This, in view of our other conclusions, we need' not determine. We shall assume that they are.\\nBut plaintiffs In error point out that the election law of the Tecolote grant (Id. \\u00a7 29- 1103) makes no provision for the issuance of certificates of election to the successful candidate. Hence, they contend,, they are not within the statutory description of those whose election may be contested.\\nDefendants in error say that the test expressed, if it were to be deemed the criterion, is the actual issuance of certificates of election, not a statutory requirement therefor. They claim that this record shows that certificates were in fact issued. If we were put to it to decide this question of construction, we should hesitate before adopting the view of defendants in error. It might result that the board of trustees, not being under any statutory duty to issue formal certificates of election, would have it in its power to permit or to block a contest by the mere device of issuing or refusing to issue certificates.\\nBut defendants in error contend that this is not the criterion of the right to contest; that there are many minor elections in this state, as to some of which it is prescribed and as to others not prescribed, that the result shall be evidenced by certificates of election; that it is not a reasonable test; and that the Legislature could not have intended to base so important a distinction upon a matter so formal and inconsequential.\\nWe are impressed that this reasoning is sound. Yet, further consulting the statute, we find that the issuance of certificates of election has quite an important place in the legislative scheme. Not only does the event give rise to the right to institute the contest according to the expression above quoted, but the lapse of twenty days after that event terminates the right. Id. \\u00a7 41-603. The whole plan of limiting the time for contesting elections hinges on the certificate.\\nTurning now to the recount provisions of the election code, immediately following its contest provisions, the issuance of certificates of election assumes perhaps greater importance. A candidate desiring a recount is to apply to the state canvassing board or to the district judge, according as the office involved is one for which the state canvassing board or one for which the county board of canvassers \\\"issues a certificate of election.\\\" Id. \\u00a7 41-614, 41-618. If the recount shall change the result, the proper board \\\"shall revoke the certificate of election already issued to any person for such office and shall issue\\\" a new certificate. Id. \\u00a7 41-617, 41-621.\\nHere the criterion is not the issuance of the certificate, but the statutory duty to issue it. Moreover, that duty must reside in one of these two boards. If in the case at bar, recount had been desired, to what authority might the parties have applied?\\nThe election code specifically prescribes the offices for which the board of county canvassers is to issue certificates. \\\"County officers and members of the legislature elected from such [a single} county only.\\\" Id. \\u00a7 41-350. It also prescribes the offices for which the state canvassing board is to issue certificates. Id. \\u00a7 41-356.\\nThis brings us to the result urged by plaintiffs in error, though for a somewhat different reason. The contest provisions of the election code are inapplicable to land grant elections, not because the particular grant statute fails to require issuance of certificates of election, but because tbe Legislature, in framing the contest and recount provisions of the code, contemplated their applicability to those elections only for which the code makes provision, the general elections for state, district, and county offices.\\nThis conclusion is fortified, and we think made necessary, by another provision of the election code.\\n\\\"The provisions of this act shall not apply to elections for justices of the peace, constables, school directors, municipal boards of education, officers of irrigation, drainage or conservancy districts, officers of acequias or community ditches, city, town or village officers, or elections for issuance of bonds or other evidences of indebtedness by cities, towns, villages, counties, school districts, or other municipalities, unless otherwise provided herein or by the laws governing such election.\\\" Id. \\u00a7 41-720.\\n' It is true that this section does not exactly describe an election for the constitution of a grant board. But reason and analogy compel us to place that election in the class of elections excepted from the scope of the act, rather than in the class included in it. Considering the character of the elections to which it is plain the statute is not applicable, it would be difficult indeed to impute an intent to make it applicable to grant elections.\\nThe election contest being a special statutory proceeding, the right is not to be inferred from doubtful provisions. Nor is it to be overlooked that if, in the face of all doubt, we were disposed to concede the right, out of consideration for the plight of one who has been improperly deprived of an office, we should by that very act cut him off from another right, perhaps more valuable, that of statutory quo warranto. Cf., State ex rel. Abercrombie v. District Court, 37 N. M. 407, 24 P.(2d) 265.\\nPersuaded that there was no jurisdiction to entertain the proceeding, we must reverse the judgment and remand the cause. It is so ordered.\\nSADLER, HUDSPETH, BICKLEY, and ZINN, JJ., concur.\"}"

nm/1573459.json

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+"{\"id\": \"1573459\", \"name\": \"BARKER, Mayor, et al. v. STATE ex rel. NAPOLEON\", \"name_abbreviation\": \"Barker v. State ex rel. Napoleon\", \"decision_date\": \"1935-08-30\", \"docket_number\": \"No. 4149\", \"first_page\": \"434\", \"last_page\": 441, \"citations\": \"39 N.M. 434\", \"volume\": \"39\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T02:11:32.333570+00:00\", \"provenance\": \"CAP\", \"judges\": \"SADLER, C. J., and HUDSPETH, BICKLEY, and ZINN, JJ., concur.\", \"parties\": \"BARKER, Mayor, et al. v. STATE ex rel. NAPOLEON.\", \"head_matter\": \"49 P.(2d) 246\\nBARKER, Mayor, et al. v. STATE ex rel. NAPOLEON.\\nNo. 4149.\\nSupreme Court of New Mexico.\\nAug. 30, 1935.\\nEarl D. Kenney, of Santa Fe, for plaintiffs in error:\\nReed Holloman, of Santa Fe, for defendant in error.\", \"word_count\": \"3339\", \"char_count\": \"18753\", \"text\": \"BRICE, Justice.\\nRelator applied for an alternative writ of mandamus against the respondents to compel the levy and collection of a tax to pay a judgment based upon a tort, in favor of relator against the city of Santa F\\u00e9. An alternative writ was issued by the district court to which an answer was filed admitting the facts alleged, but denying that there was legal authority for issuing a peremptory writ of mandamus alleging: \\\"That the City of Santa Fe, through its City Council has the discretionary power to levy taxes for general purposes up to a limitation of five (5) mills on the dollar of assessed valuation of property located in said municipality; that the City of Santa Fe will require all monies to be raised by taxes under such limitation for its 1935 municipal current expenses.\\\" And alleged further, in substance, that the respondents had no power or authority under any law to levy a tax to discharge the judgment in question.\\nThe district court held that the relator was entitled to the relief prayed for and thereupon issued a peremptory order commanding the respondents in their several official capacities to do the things necessary and required by law to levy and collect taxes sufficient to pay said judgment and to pay the same to the relator. A writ of error has been sued out in this court to review the final judgment of the district court entered in said cause. The parties will be referred to as relator and respondents.\\nThe case was tried upon the writ and answer. Without stating more of the allegations of the writ than is necessary to determine the case, it is alleged, after preliminary allegations with reference to the official positions of the respondents, that on the 19th day of June, 1933, the relator recovered a judgment in the sum of $8,700, with interest thereon at the rate of 6 per cent, per annum from the date of the judgment, together with costs, against the city of Santa Fe, which judgment is still in full force and effect and no part has been paid; and commanding the several respondents in their official capacity to perform the necessary official acts to the end that a tax be levied and collected for the payment of such judgment and that it he paid.\\nThe parties agree that the sole question to be determined is whether or not there is legal authority for the levying of such tax; all of the proceeds of the levy of a tax of 5 mills on the dollar, the maximum rate authorized under section 141-1001, Comp. St. 1929, being required by the city for municipal current expenses. In other words, Is there authority in the Constitution or laws of the state to levy a tax to pay the judgment in question other than section 141-1001, Comp. St. 1929? It is agreed that, under the facts, no part of the 5-mill levy can be used for such purpose.\\nRespondents contend that if relator's judgment is paid at all, it must be paid from a tax levy as limited by section 141-1001, Comp. St. 1929; that as all the funds which can be obtained from such levy are needed to pay the ordinary expenses of the city, there can be no fund provided to pay such judgment at this time. The material parts of that statute are: \\\"The maximum rate of tax to be levied for city, town or village purposes or uses shall not exceed five (5) mills on the dollar. The foregoing lim itations shall not apply to levies for the payment of the public debt or interest thereon; Provided, further, that the limitations herein contained shall not apply to tax levies authorized by the fifth legislature and exempted from similar limitations in existing laws.\\\"\\nOn the other hand, relator contends that the limitation statute has application solely to taxes levied to provide funds for ordinary current expenses and does not include judgments for torts; that the city is authorized to make such levy under its general authority to levy taxes and pay debts.\\nChapter 133 of the Session Laws of 1921, among others, had the following section (section 302), now appearing in the Comp. St. of 1929, as follows: \\\"141-302. On or before the first Monday in September of each and every year the city council or board of trustees of any city, town or villagfe, shall make and order a levy of taxes for all municipal purposes, and certify the same to the county commissioners. Such levies shall conform to and be within the budgets or estimates for such year as approved by the state tax commission and shall be within the limitations as to rate of levy as provided by law.\\\" The latter was amended as above in 1925 (Laws 1925, c. 102, \\u00a7 14). Chapter 140 passed at the same session (1921) is the limitation act in question, now appearing in Comp. St. 1929 as section 141-1001; the material parts of which have been quoted. That such statutes have reference to the ordinary municipal expenditures incurred in carrying on business, enacted to protect the public against extravagance and waste where expenditures are discretionary, and not as to items definitely fixed by law and not specifically included, or judgments for torts, or like items over which the officials of municipalities have no control; has been the view expressed by the great majority of decisions where the question was an issue.\\n\\\"Sec. 278. There is a considerable conflict .of authority upon the question as to how far a constitutional limitation upon municipal indebtedness applies to obligations imposed upon municipal corporations by law as distinguished from those which are discretionary or voluntary. It is universally agreed that limitations upon municipal indebtedness do not apply to obligations sounding in tort, and that it is not a defense to an qction of tort against \\u00e1 municipal corporation that a judgment for the plaintiff will increase the indebtedness of the defendant beyond the constitutional limit. \\\" 19 R. C. L. p. 981.\\nIt is unnecessary to quote from authorities, but we cite the following: Mayor, etc., of Anniston v. Hurt, 140 Ala. 394, 37 So. 220, 103 Am. St. Rep. 45; State ex rel. Pyle v. University City et al., 320 Mo. 451, 8 S.W. (2d) 73; State ex rel. Coolsaet et al. v. City of Veblen, 58 S. D. 451, 237 N. W. 555; Lewis v. Widber, 99 Cal. 412, 33 P. 1128; Dawson County v. Clark et al., 58 Neb. 756, 79 N. W. 822; Little v. City of Portland, 26 Or. 235, 37 P. 911; Heyman & Bro. v. Bath et al., 58 Cal. App. 499, 208 P. 981; Morris v. Sheridan, 86 Or. 224, 167 P. 593; Town of Flagstaff v. Gomez, 29 Ariz. 481, 242 P. 1003; Metropolitan Life Ins. Co. v. Deasy, Auditor, et al., 41 Cal. App. 667, 183 P. 243; State ex rel. Keck v. City of Sunnyside et al. (Wash.) 43 P.(2d) 621; Conner v. City of Nevada, 188 Mo. 148, 86 S. W. 256, 107 Am. St. Rep. 314; Burr v. Board of Supervisors of City and County of San Francisco, 30 Cal. App. 755, 159 P. 458; City of Long Beach v. Lisenby, Mayor, et al., 180 Cal. 52, 179 P. 198; State ex rel. Pool v. City of Willow Springs (Mo. Sup.) 183 S. W. 589; City of Bloomington v. Perdue, 99 Ill. 329; Rice v. Walker, 44 Iowa, 458; Menar v. Sanders, 169 Ky. 285, 183 S. W. 949, L. R. A. 1917E, 422. Also see annotations in 94 A. L. R. at page 937, the ^headnote of which is as follows: \\\"The general rule is that constitutional or statutory limitations upon municipal indebtedness or upon the amount of municipal taxation refer only to obligations volun- ^ tarily incurred by the municipality, and do not apply to its obligations sounding ^Jm tort.\\\"\\nThere are a number of cases holding that a limitation on indebtedness does not apply to judgments for tort upon the same reasoning. Chase County v. Chicago, B. & Q. Ry. Co., 58 Neb. 274, 78 N. W. 502; Thomas v. City of Burlington, 69 Iowa, 140, 28 N. W. 480; City of Bloomington v. Perdue, 99 Ill. 329; City of Chicago v. Sexton, 115 Ill. 230, 2 N. E. 263.\\nThe Supreme Court of Missouri in State of Missouri ex rel. Emerson v. City of Mound City, 73 S.W. (2d) 1017, 1022, 94 A. L. R. 923, decided last year, has overruled the Missouri cases we have cited. The Missouri Constitution, after fixing a maximum rate, continued, \\\"said restrictions as to rates shall apply to taxes of every kind and description, whether general or special, except taxes to pay valid indebtedness now existing, or bonds which may be issued in renewal of such indebtedness.\\\" Const. Mo. art. 10, \\u00a7 11. The court in that case stated: \\\"That the limitation contained in section 11, article 10, of the Constitution as to the annual rates of taxation which may be levied for municipal purposes is self-enforcing and applicable to 'taxes of every kind and description, whether general or special,' with no exceptions whatever, except the ones made by the section of the Constitution itself not applicable here, has been held many times by this court, and it makes no difference that the debt is valid or a judgment had been- rendered.\\\"\\nFrom reading the previous decisions, it would seem that exceptions had been made for many years, though the language of the Constitution is positive and may justify the change, but it is quite different from the New Mexico act. Three of the eight judges of that court dissented. Courts of the state of Texas are likewise an exception to the majority. Gould v. City of Paris, 68 Tex. 511, 4 S. W. 650; City of Clarendon v. Betts (Tex. Civ. App.) 174 S. W. 958; City of Sherman v. Smith, 12 Tex. Civ. App. 580, 35 S. W. 294.\\nIt follows that the limitation on the tax rate of cities in section 141-1001, Comp. St. 1929, has no reference to the levying l^p\\u00ed a tax to pay a judgment for tort.\\n(2) But respondents contend that the city has no authority except section 141-1001, Comp. St. 1929, for levying a tax to pay relator's judgment, and therefore no tax levy can be made. But the statute just mentioned is a limitation on^ the taxing power, not a grant of it. Unless authority can be found elsewhere in the statutes or the Constitution, then it does not exist; for a municipality can do no act for which authority is not expressly granted or which may not be .reasonably inferred from those conferred upon it. 6 McQuillen on Municipal Corporations (2d Ed.) \\u00a7 323.\\nThe power to tax and pay debts is given generally in the Comp. St. 1929 as follows:\\n\\\"90-402. The city council and board of trustees in towns shall have the following powers:\\n\\\"Second. To appropriate money for corporate purposes only, and provide for payment of debts and expenses of the corporation.\\n\\\"Third. To levy and collect taxes for general and special purposes on real and personal property.\\\"\\n\\\"141-301. The city council or board of trustees of any city, town, or village, shall have power and authority to levy taxes upon taxable property within the limits of such city, town or village, subject to taxation for state or county purposes, in accordance with the laws of the state.\\\"\\n\\\"90-201. Cities and towns organized as provided in this article shall be bodies politic and corporate, under such name and style as they may select at the time of their organization, and may sue, or be sued, contract, or be contracted with, acquire and hold property, real and personal and have such other privileges as are incident to corporations of like character or degree, not inconsistent with the laws of the state.\\\"\\nThe Territorial Supreme Court in Territory of New Mexico ex rel. Parker v. Mayor, etc., of Socorro, 12 N. M. 177, 76 P. 283, 284, compelled the city of Socorro to levy a tax to pay bonds though the tax rate required would exceed the maximum allowed by section 116, chap. 39, Laws 1884, which the court held did not apply to cities organized under the law repealed by that act. That act, as amended, is now section 90-406, Comp. St. 1929, and apparently has not been repealed unless it conflicts with section 141-1001, supra, and is as follows: \\\"90-406. No city or town having a population of less than six thousand (6000), according to the last census, shall levy an annual tax in excess of ten mills for any purpose whatsoever, except, for interest on bonded indebtedness; and no city or town having a population according to such census of six thousand shall levy any such tax in excess of eleven mills, except for interest on bonded indebtedness.\\\"\\n. This is the only case at all similar among New Mexico decisions. It was claimed, as here, that all the funds authorized to be levied were needed to pay current expenses. The court stated: \\\"But this judgment was rendered to compel the levy of a special tax to be used exclusively to pay the city's bonds and interest, and is wholly disconnected from any levy for current expenses. It does not attempt to appropriate any funds which are to be raised or could be used for current expenses.\\\" It seems that the court assumed that the city of Socorro was organized under the act of 1880, at which time there was no limitation on the authority of a city to levy taxes, and therefore section 90-406 did not apply. The effect of the decision is to hold that there being no limitation on the taxing power, the city could be compelled by mandamus to levy a tax to pay certain past-due bonds. The city also contended that the writ should not issue before judgment, but as the debt was not denied, the court held a judgment was not necessary to enforce payment. The only difference in the cases is that the Socorro Case was a contract debt while the one in the case at bar is in tort.\\nA similar question was before the Supreme Court of Arizona in Town of Flagstaff et al. v. Gomez, 29 Ariz. 481, 242 P. 1003, 1004. It was held that authority to levy a tax to pay a judgment was granted by the following provision of the Arizona Code: \\\"The common council of every such town shall have control of the finances, and all the property, real and personal, belonging to the corporation; and shall likewise have power within the limits of the town to appropriate money and provide for the payment of the debts and expenses of the town. \\\" Civ. Code 1913, par. 1831.\\nThe court, in construing this statute, said:\\n\\\"We are of the opinion that this paragraph not only gives the right but also imposes a positive duty upon the common council of the town of Flagstaff to 'provide for the payment of the debts' of the town, including all outstanding judgments, as they are the highest possible evidence of just indebtedness.\\n\\\"There are practically but two ways in which a .municipality can properly raise money to pay its debts. One is by levying taxes directly therefor, and the other by issuing bonds, which in turn will have to be paid by taxes, so that in the long run it comes back to the levy of a tax. Since the duty of paying is specifically imposed on the town, we think by reasonable implication there goes with such duty the power 4o exercise the only possible method of fulfilling it, unless there is a special statutory prohibition.\\\"\\nlt has certainly been assumed in this state that a city is authorized under the general provisions quoted, and correctly so we believe, to pay debts and to that end levy taxes within the constitutional and statutory limitations^ No contention has been made by the appellant that the judgment should not be paid as provided in the order of the court, herein, if the levy can legally be made in excess of the 5 mills required for city purposes.\\n\\\"The liabilities of a municipal corporation are an incident to and grow out of, the powers and duties conferred or exacted. It follows that if the corporation in the exercise of any of its powers or in the performance of any of its duties incurs, in contracts or in delicto, any liability whether it arises from express legislation or by implication, it cannot escape such liability unless relieved therefrom by some valid provision of law.\\\" 6 McQuillen on Municipal Corporations \\u00a7 2773.\\nThe city owes the debt and is author-^ ized to levy sufficient tax to pay it. This being true, it becomes .a duty and may be enforced by mandamus.\\n\\\"If power is granted to a municipal corporation to levy taxes, the exercise of such power for legitimate purpose is a duty and can be compelled by those who would be injured by a neglect to tax._ Power to levy taxes to pay debts or municipal expenses imposes the duty of exercising that power.\\\" 6 McQuillen on Municipal Corporations \\u00a7 2536.\\n(3) Relator calls attention to section 7 of article 8 of the State Constitution, the material parts of which are as follows, \\\"No execution shall issue upon any judgment rendered against any incorporated city or against any officer of any incorporated city upon any judgment recovered against him in his official capacity and for which the incorporated city is liable, but the same shall be paid out of the proceeds of a tax levy as other liabilities of incorporated cities and when so collected shall be paid by the county treasurer to the judgment creditor,\\\" and urges with much force and reason that it is self-executing; that under its terms he is entitled to the peremptory writ of mandamus as granted by the trial court; that it requires the funds collected from the tax levy therein provided for, to be paid directly to the judgment creditor by the county treasurer and therefore necessarily intends a special tax levy; as the ordinary city funds are required to be turned over to the city by the county treasurer '(section 141-417, Comp. St. 1929). It seems that the source of this section of the Constitution was an enlargement of section 7, chap. 1, of the New Mexico Session Laws of 1876, now section 33-3704, Comp. St. 1929. That it was adopted in a modified form from the laws of Colorado. Stoddard, Treasurer, v. Benton, 6 Colo. 508. Relator calls attention to the case of Atchison, T. & S. F. Ry. Co. v. Lopez, 20 N. M. 591, 151 P. 308, 311, in which this court construed section 33-3704, Comp. St. 1929, and stated in the opinion, \\\"It is clear, however, in our opinion, that the first act [section 33-3704, Comp. St. 1929] is in full force and effect, general in its nature, and applying to all judgments which shall be rendered against any county,\\\" and that it was then held that the general county fund limited to a 5-mill levy was not the only source from which the judgment could be paid, but that the act as there construed authorized \\\"the county to levy the amount of the judgment.\\\"\\nAs we have found that relator is entitled to the writ as prayed for, we do not find it necessary to decide the constitutional question.\\nFinding no error in the record, the judgment of the district court is affirmed.\\nIt is so ordered.\\nSADLER, C. J., and HUDSPETH, BICKLEY, and ZINN, JJ., concur.\"}"

nm/1575375.json

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+"{\"id\": \"1575375\", \"name\": \"GENERAL MOTORS ACCEPTANCE CORPORATION v. BALLARD\", \"name_abbreviation\": \"General Motors Acceptance Corp. v. Ballard\", \"decision_date\": \"1932-12-09\", \"docket_number\": \"No. 3704\", \"first_page\": \"61\", \"last_page\": 66, \"citations\": \"37 N.M. 61\", \"volume\": \"37\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T17:49:50.036598+00:00\", \"provenance\": \"CAP\", \"judges\": \"BICKLEY, O. J., and WATSON, SADLER, and HUDSPETH, JJ., concur.\", \"parties\": \"GENERAL MOTORS ACCEPTANCE CORPORATION v. BALLARD.\", \"head_matter\": \"17 P.(2d) 946\\nGENERAL MOTORS ACCEPTANCE CORPORATION v. BALLARD.\\nNo. 3704.\\nSupreme Court of New Mexico.\\nDec. 9, 1932.\\nH. C. Buchly, of Roswell, for appellant.\\nJ. C. Gilbert, of Roswell, for appellee.\", \"word_count\": \"2280\", \"char_count\": \"13040\", \"text\": \"NEAR, J.\\nThis action was filed in the office of the clerk of the district court for Chaves county, state of New Mexico, on the 15th day of October, 1929. The complaint, in substance, alleged that on June 6, 1928, the appellee purchased from the appellant a Chrysler roadster, agreeing to pay therefor the sum of $520, of which sum $200 was paid in cash, and a conditional sales contract was executed, by which it was agreed to make ten deferred payments monthly, of $32 each, -beginning July 6,1928. The contract is attached as a-n exhibit to the complaint in the cause, and the terms of the contract are thus made a part of the complaint.\\nIt is further alleged that appellee made four payments on the said contract and defaulted in payment of the remainder. It is alleged that there is a balance due on the contract of $175.50, principal, $8.77 interest, and the complaint asked for an attorney's fee of $26 as provided in the sales contract in the event the contract is placed in the hands of an attorney for collection, and it is alleged that the same was so placed. For this sum appellant asked judgment.\\nTo this complaint the appellee interposed a demurrer, and for the grounds of the demurrer states:\\n(1) \\\"That said complaint does not state facts sufficient to constitute a cause of action.\\n(2) \\\"That said complaint on its face does not state facts sufficient to constitute a cause of action in this, that it shows that plaintiff had never parted with the title to the property described in said complaint and that at all times in said complaint mentioned was the-owner of the automobile described therein, and that by reason of said ownership being kept and retained, that defendant was never more than bailee for hire and could not be-liable to plaintiff: in any amount other than for the use of said automobile during such time as defendant might have had and used the same and that this is not any action for hire but is an action for purchase price of said car which defendant never had title to.\\n(3)\\\"That said complaint on its face does not state facts sufficient to constitute a cause of action, in this, that the allegations of said complaint show that plaintiff had any one of three causes of action, that is: (1) for the purchase price of said automobile, (2) for the use and hire of said automobile, (3) for the possession of said automobile.\\\"\\nThe court heard argument on the sufficiency of the complaint as tested by this demurrer, sustained the demurrer, and dismissed the cause. To this action the appellant duly excepted and presents this assignment of error as the grounds for reversal here.\\nThe first ground of demurrer, to wit,, that \\\"the complaint does not state facts sufficient to constitute a cause of action,\\\" is not sufficient, for the reason that it does not distinctly specify the grounds of objection, sought to be presented and is too general in its nature. Section 105-412, Compilation 1929; Williams et al. v. Kemp et al., 33 N. M. 593, 273 P. 12.\\nThe second and third grounds for demurrer present for eonsidei*ation the question as to whether the appellant, under its contract with the appellee, by which it reserved title to itself in the property, having taken possession of the same on default in payment, could sell the property, apply the proceeds of such sale to the amount of the debt, and recover the deficiency by action?\\nThe contract, so far as material to the1 determination of the question here presented, provides:\\n\\\"1. Title to said property shall not pass to the purchaser until said amount is fully satisfied in cash.\\\"\\n\\\"3. In the event the purchaser defaults on any payment or fails to comply with any condition of this contract or a proceeding in bankruptcy, receivership or insolvency be instituted against the purchaser or his property, or the seller deems the property in danger of misuse or confiscation, the full amount shall, at the election of the seller, be immediately due and payable, and purchaser hereby authorizes any attorney-at-law to appear for said purchaser in any court of record in the United States, waive the issue and service of process, and confess judgment against said purchaser for the amount due hereunder in favor of the seller or assignee.\\\"\\n\\\"6. Time is of the essence of this contract, and if the purchaser default in complying with the terms hereof, or the seller deems the property in danger of misuse or confiscation, the seller or any sheriff or other officer of the law may take immediate possession of said property without demand (possession after default being unlawful), including any equipment or accessories thereto; and for this purpose the seller may enter upon the premises where said property may be and remove the same. The seller may resell said property, so retaken, at public or1 private sale without demand for performance, with or without notice to the purchaser, (if given, notice by mail to address below being sufficient), with or without having such property at the place of sale, and upon such terms and in such manner as the seller may determine; the seller may bid at any public sale. Erom the proceeds of any such sale, the seller shall deduct all expenses for retaking, repairing and reselling such property, including a reasonable attorney's fee. The balance thereof shall be applied to the amount due; any surplus shall be paid over to the purchaser; in case of deficiency the purchaser shall pay the same with interest and the purchaser does hereby confess judgment in the amount of such deficiency. Seller may take possession of any other property in the above described motor vehicle at the time of repossession and hold the same temporarily for the purchaser without liability on the part of the seller.\\\"\\n\\\"7. Seller shall have the right to enforce one or more hereunder, successively or concurrently, and such action shall not operate to estop or prevent the seller from pursuing any further remedy which he may have hereunder, and any repossession or retaking or sale of the property, pursuant to the terms hereof shall not operate to release the pur chaser until full payment has been made in cash.\\\"\\nThe demurrer proceeds upon the theory that, since the contract of sale reserves the title to the property in the vendor, and the vendor repossesses himself of the property, the consideration for the payment of the balance of the purchase price fails, and that any further liability which might exist between the parties to the contract could only be compensation for the use of the automobile while in possession of the vendee. This might be true but for the provision of paragraph 6 of the contract above quoted. It will be seen that paragraph 6 of the contract, above quoted. specifically provides that, if the purchaser makes default in the payment, the vendor may take immediate possession of the property without demand, and resell the property so taken, at public or private sale with or without notice, and apply the proceeds arising from such sale to the expense of retaking, reselling, and repairing the property, together with a reasonable attorney's fee, and apply the balance arising from such sale on the amount due under the contract, and, if any surplus remains, it should be paid over to the purchaser, and, if the property at such sale does not bring a sufficient sum to pay the full amount contracted to be paid, the vendor may have his right of action to recover such deficiency.\\nWithout discussing the fairness or unfairness of this clause of the contract, it is clear as to its terms, and we know of no legal inhibition, preventing its enforcement.\\nThe Encyclopedia of Automobile Raw, by Mr. Huddey, vol. 11-12, \\u00a7 166, uses the following language: \\\"In some jurisdictions a stipulation for repossession of the article sold and release of the seller from his agreement to convey title to the buyer is regarded as an agreement for rescission, when found in a conditional sales contract, even though the buyer has unconditionally agreed to pay, unless the contract includes a promise upon his part to pay any balance due after the proceeds of the sale of the article have been applied upon the debt.\\\"\\nIn Campbell Motor Co. v. Spencer, 22 Ala. App. 465, 116 So. 892, 893, the Court of Appeals of Alabama had under consideration the clause of a contract almost identical with the one under consideration here. The court in that case said:\\n\\\"The serious question arising in this case is as to the rights of the seller under a contract, not only reserving title, but also authorizing a resale of the property upon reducing it to possession under the contract and the application of the proceeds of the sale to the balance due on the purchase price, together with a provision that if there is any balance remaining unpaid the buyer shall be liable for such deficiency, and if the second sale is more than the balance due, the seller shall first apply the amount received to the extinguishment of the debt and paying over to the buyer any excess of such proceeds. This clause in a conditional sale contract has been the subject of many decisions of courts of last resort, all of which, with the exception of the Supreme Courts of Minnesota and Ar kansas have held the contract to he valid and enforceable. Fulghum et al. v. General Motors, a Corporation, 30 Ga. App. 609, 118 S. E. 600; Warner v. Zuechel, 19 App. Div. 494, 46 N. Y. S. 569; Ascue v. Aultman & Co., 2 Willson, Civ. Cas. Ct. App. \\u00a7 497. To the same effect are the decisions of the Canadian courts, many of which are collated in L. R. A. 1916A, page 919. As we see it, the clause hereinabove discussed is valid and binding and permits the vendor to repossess the property upon default of the purchaser, sell it, apply the proceeds to the debt, and sue for the balance due.if any part of the debt is left unpaid.\\\"\\nMr. Estrieh, in his work on Installment Sales, \\u00a7 341, p. 704, gives a clear, and concise statement of the rights of the parties under a contract of this character. He says:\\n\\\"The repossession of the property by the seller under a contract providing that, if the buyer made the stipulated payments and complied with certain other requirements, he should be entitled to a bill of sale of the property, but that if he made default all rights under the contract were to cease, and the seller might take possession of the property, was held to prevent a recovery of the purchase price; in such a case there is a failure of consideration for the buyer's promise to pay the purchase price. The seller in such a ease obtains possession of his property and is entitled to the payments that have been made to him; the fact that he has indulged the buyer upon the latter's promise to make payments in default does not entitle the seller to recover the payments in default, or damages for the breach of contract or the fair value of the use of the property.\\n\\\"But there may be a recovery after taking possession under a contract expressly authorizing the seller'to take possession on certain conditions, and sell the property and apply the proceeds toward the payment of the note. And under such a contract a recovery against endorsers of the buyer's notes for a deficiency was sustained. It has been held that the agreement that the'proceeds of any resale should be applied to payment of the purchase price carries with it, by necessary implication, the promise on the part of the buyer to pay any balance remaining unpaid after crediting the proceeds of the sale. The Supreme Court of Oregon says:\\n\\\"The rule followed in this state is in effect that where one of the remedies provided in a contract for the sale of the property, containing a reservation of the title in the seller until payment of the purchase price, is the right, on the default of the buyer, to seize and sell the property at public or private sale and apply the proceeds toward the payment of the purchase price, and the seller exercises this right, he is entitled to recover from the buyer any balance remaining after so crediting the proceeds of the resale. The right to recover the purchase price under such a contract has been sustained, although there is no express provision that the proceeds of the sale are to be applied on the note, where there is an absolute promise to pay. If it appears from the whole contract that it was the intention of the parties that whatever remained due should be paid by the buyer, recovery may be had. [First Nat. Bank v. Yocom, 96 Or. 438, 189 P. 220.]\\\"\\nWe agree with the doctrine as thus announced, and therefore conclude that the complaint in this cause stated a cause of action and that the court erred in sustaining the demurrer of appellee thereto. For this reason the cause is reversed and remanded, with directions to proceed with the cause in accordance herewith.\\nBICKLEY, O. J., and WATSON, SADLER, and HUDSPETH, JJ., concur.\"}"

nm/1577088.json

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+"{\"id\": \"1577088\", \"name\": \"HAMPTON et al. v. PRIDDY et al.\", \"name_abbreviation\": \"Hampton v. Priddy\", \"decision_date\": \"1946-04-10\", \"docket_number\": \"No. 4892\", \"first_page\": \"23\", \"last_page\": 28, \"citations\": \"50 N.M. 23\", \"volume\": \"50\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T20:53:15.826199+00:00\", \"provenance\": \"CAP\", \"judges\": \"MABRY, C. J., and SADLER, BICK-LEY, and BRICE, JJ., concur.\", \"parties\": \"HAMPTON et al. v. PRIDDY et al.\", \"head_matter\": \"168 P.2d 100\\nHAMPTON et al. v. PRIDDY et al.\\nNo. 4892.\\nSupreme Court of New Mexico.\\nApril 10, 1946.\\nSee also 49 N.M. 1, 154 P.2d 839.\\nR. A. Prentice, of Tucumcari, for appellants.\\nJ. V. Gallegos and C. C. Davidson, both of Tucumcari, and H. A. Kiker, of Santa Fe, for appellees.\", \"word_count\": \"2139\", \"char_count\": \"12734\", \"text\": \"LUJAN, Justice.\\nThis is an appeal from a judgment entered in separate contest proceedings initiated in the district court of Quay County by the appellants, T. W. Hampton and Clarence Massey, as contestants, involving the offices of Mayor and Councilman of the City of Tucumcari, following the municipal election held on the 4th day of April, 1944. Hampton was nominated for Mayor and Massey for Councilman from the 2nd^y/ard on the Democratic ticket. The c\\u00f3ntestees in the contest, initiated as aforesaid, were appellee, Henry R. Priddy, nominated for the office of Mayor and Clarence E. Gamble, nominated for Councilman from the 2nd Ward, on the \\\"Greater Tucumcari Ticket.\\\" The result of the election according to the initial canvass was as follows:\\nMayor Councilman\\nHampton . 721 Massey....... 685\\nPriddy . 724 Gamble....... 701\\nCertificates of election were duly issued to Priddy for Mayor and Gamble for Councilman based on the foregoing canvass. A subsequent recount as to these offices resulted in no substantial, certainly no material, change in the result. It showed:\\nMayor Councilman\\nHampton . 718 Massey....... 680\\nPriddy . 723 Gamble....... 700\\nThe results of the recount come into the case before us solely as an admission of opposing counsel and not by reason of any evidence introduced at the trial. The contests were consolidated for trial below and after hearing the court awarded judgment in favor of the appellee Priddy for the office of Mayor and in favor of the appellee Gamble for the office of Councilman from the 2nd Ward, both nominees on the \\\"Greater Tucumcari Ticket.\\\" These awards were contained in a single judgment. The appellants, who were the contestants below, prosecute this appeal, each complaining of the judgment so entered against him and they pray for a reversal thereof. While some thirteen separate errors are assigned, they are grouped for purposes of argument under two points, viz., (1) that the so called \\\"Greater Tucumcari Party\\\" was not a political party within the meaning of the governing statute and, hence, appellees' names, as its nominees, were not entitled to be printed on the ballot, nor should any votes cast for them have been counted, canvassed or returned, and (2) that at the date of said election, the appellee Clarence E. Gamble was not a resident of, but resided outside, the City of Tucumcari and, hence, was ineligible to be nominated and elected or to receive a certificate of election to the office of Councilman from the 2nd Ward in said City and that for the same reason the votes cast by him and his wife and three other named persons, all for contestees, were illegal and should- not have been cast, counted or canvassed.\\nThe ruling of the trial court on appellants' first point was made in acting on certain proposed findings of fact, one of which, at least, partakes more of the nature of a conclusion of law than a finding of fact. The proposals first made a declaration that \\\"The Greater Tucumcari Party\\\" was not a political party receiving more than fifteen per cent, of the total number of votes cast for the candidates for Governor in the last preceding election. Then appeared a proposed finding in substance that the appellees were not nominated at or by a legally called and held political convention, and that the \\\"Greater Tucumcari Political Party\\\" had never filed in the office of the County Clerk of Quay County the rules governing the organization of said party, particularly with reference to the method of selecting nominees as candidates for public office.\\nCounsel for appellants first call to our attention 1941 Comp. Sec. 14-1303, L. 1884, c. 39, Sec. 55, the material portion of which reads:\\n\\\" And all elections for municipal officers shall in all respects be held and conducted in the manner prescribed by law in cases of county elections.\\\"\\nAttention is then directed to 1941 Comp. Sec. 56-720, L. 1927, c. 41, Sec. 720, the election code of 1927, which, while expressly excepting certain elections, including municipal, from the act, provides, nevertheless, that in all municipal elections, the duties specified in said act as devolving upon the county clerk shall devolve upon the clerk of the municipality unless otherwise specifically provided. Finally, under this point, the method of nominating candidates by convention system as set out in Article 9 of Chapter 56, New Mexico Statutes Annotated (1941) \\u2014 Sections 56-901 to 56-908 of 1941 Compilation \\u2014 is pointed out as the method which should have been pursued by the \\\"Greater Tucumcari Party\\\" in order to get the names of its candidates on the ballot, since it was not a political party whose candidates received as many as fifteen per centum of the total number of votes cast for the candidates for Governor in the last general election by all political parties, whose nomination is provided for by the primary election laws of this state. See 1941 Comp. Sec. 56-908. The several omissions to comply with the provisions of this article, such as failure to file with the county clerk the rules governing the organization of the party as required by 1941 Comp. Sec. 56-903,-and in other respects, are pointed out by appellants (contestants) and it is argued the names of appellees were wrongfully on the ballot and, hence, no ballots cast for them were entitled to be counted or canvassed.\\nThe appellees argue with a vigor equal-ling that of appellants that the statute invoked is obviously inapplicable to municipal elections, reminding us that the provisions of 1941 Comp. Sec. 14-1303 rendering applicable to municipal elections the general election laws of the state, speaks of the manner of \\\"holding and conducting elections,\\\" not the manner of nominating candidates. They mention arguendo, also, the fact that if counsel for appellants be correct in their contentions in this behalf \\u2014 nominations by political parties \\u2014 then throughout the years there have been few officers, other than de facto, in many municipalities in the state, since in most of them non-partisan rather than party tickets have been the rule and not an exception to the rule.\\nWe are disposed to hold with appellees that the provisions of 1941 Comp. Secs. 56-901 to 56-908, L.1935, c. 58, are without application to a non-partisan ticket offered to the electors in a municipal election. Obviously as its whole context connotes, the act was never intended to discourage or apply to the long existing and salutary practice of offering nonpartisan tickets in city, town and village elections. If in doubt about the matter, the heavy penally imposed for non-compliance with its provisions would incline us to resolve the doubt against an application of the act which would discourage, if not prohibit, local non-partisan tickets. Section 6 of the Act, 1941 Comp. Sec. 56-906, reads:\\n\\\"Any ballot containing the name or names of any candidate or candidates of any political party which has failed to comply with the provisions of this act shall not be cast, counted, canvassed or returned. (Laws 1935, ch. 58, \\u00a7 6, p. 107.) \\\"\\nThis is contrary to the effect almost universally applied in such circumstances, 18 Am.Jur. 263, Sec. 131, under \\\"Elections\\\" and case note in 7 Ann.Cas. 839.\\nThe legislature in enacting L.1935, c. 58, certainly gave the act no specific application to municipal elections. We do not feel disposed to do so by construction when the practical effect of, so doing would be to outlaw non-partisan tickets in such elections. The statute relied on being without application to a municipal election, the appellants' first point must fail.\\nThe second claim of error relied on relates to the residence of Clarence E. Gamble, one of the appellees, and that of four other persons, all of whom are claimed to have voted and had their votes counted for the said Gamble for Councilman and Henry R. Priddy for Mayor. The argument is that the land on which Gamble and the four other questioned voters resided lay outside the corporate limits of the City of Tucumcari, thus denying to Gamble the right to hold a municipal office therein and to him and four other persons named, any right to vote at a municipal election in said city.\\nThe method by which appellants sought to meet the burden, clearly theirs, of establishing residence outside the city of contestee Gamble, and the other four persons and, hence, the illegality of the votes of all of them, as well as Gamble's ineligibility to hold the office of Councilman, was to introduce a plat bearing date, January 14, 1902, of the original town of Tucumcari showing the dedication of certain described congressional subdivisions, followed by a record of certain proceedings before the Board of County Commissioners of the County of Quay, in the Territory of New Mexico, on July 10, 1906, incorporating the Town of Tucumcari, embracing the lands shown on the above mentioned plat along with other lands. There was then introduced evidence showing the residence of the five questioned voters to be on described lands other than those embraced in the incorporation proceedings aforesaid and evidence in the nature of an admission by-Gamble in the form of tax returns that the land on which he lived was not within the outboundaries of the area included in the incorporated lands. Testimony to same effect in relation to places of residence of the four other persons whose votes were questioned was also brought out.\\nThere followed the testimony of various persons, the tendency of which was to show that the owners of the three tracts of land on which the five persons named lived on election day, April 4, 1944, had never been dedicated by them and that without a dedication, such tracts could not have been incorporated into the City of Tucumcari after July 10, 1906. Consequently, the residents on such land were not legal voters on the day of election. So runs the argument.\\nTouching this phase of the case, the trial court found:\\n\\\"The Court further finds there is no evidence in the record to show the territorial extent of the City of Tucumcari.\\n\\\"The Court further finds there is no evidence to show the out-boundaries of the City of Tucumcari.\\\"\\nThe view entertained by the trial judge is reflected by the following comment at close of the trial, to-wit:\\n\\\"The motion to dismiss will be granted by the Court for the reason that I don't believe there is sufficient evidence to show that any of the contested votes were cast illegally because there is no evidence, as far as I can determine, to justify the Court in determining where the city limits of the City of Tucumcari extend to. The fact that there are certain annexation records introduced to indicate the limits of the City of Tucumcari in the year 1902 or 1906 is no help to the Court in determining where they are at the present time. There unquestionably have been many additions to the City of Tucumcari. And, further, it is very probable that the city limits extend considerably beyond the original dedication or plat of 1902.\\n\\\"I believe the burden is on the Contestants to establish by a reasonable amount of evidence where the limits of the city are, and not place the Court in position of having to guess whether or not the contested voters lived inside or outside of the city limits.\\\"\\nOther means of annexing territory to a municipality than through dedication by the owner are recognized and have statutory sanction. See 1941 Comp. Sec. 14-601, Sec. 14-602 and Sec. 14-606. The evidence fails to show that one or the other of these means was not followed. The most that can be said of appellants' evidence on this issue is that it affords strong proof the land on which the questioned voters resided had not been annexed to the city by voluntary dedication. It does not exclude other recognized means of annexing territory to a municipality.\\nThe questioned voters were all registered as voters within the city and had voted.in previous city elections. The appellee Gamble had served on the city council for eight years immediately preceding the election in April, 1944. These important considerations were not to be ignored and the electors disfranchised save by proof which clearly established illegality of their votes. We are unable to say the trial court erroneously ruled on this issue.\\nFinding no error, the judgment of the trial court will be affirmed.\\nIt is so ordered.\\nMABRY, C. J., and SADLER, BICK-LEY, and BRICE, JJ., concur.\\nHUDSPETH, J., did not participate.\"}"

nm/1577324.json

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+"{\"id\": \"1577324\", \"name\": \"STATE of New Mexico, Plaintiff-Appellee, v. Christopher ERVIN, Defendant-Appellant\", \"name_abbreviation\": \"State v. Ervin\", \"decision_date\": \"1981-06-09\", \"docket_number\": \"No. 5085\", \"first_page\": \"366\", \"last_page\": 367, \"citations\": \"96 N.M. 366\", \"volume\": \"96\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T21:56:09.295426+00:00\", \"provenance\": \"CAP\", \"judges\": \"LOPEZ and WALTERS, JJ., concur.\", \"parties\": \"STATE of New Mexico, Plaintiff-Appellee, v. Christopher ERVIN, Defendant-Appellant.\", \"head_matter\": \"630 P.2d 765\\nSTATE of New Mexico, Plaintiff-Appellee, v. Christopher ERVIN, Defendant-Appellant.\\nNo. 5085.\\nCourt of Appeals of New Mexico.\\nJune 9, 1981.\\nWrit of Certiorari Denied July 10,1981.\\nJohn B. Bigelow, Chief Public Defender, Lynne C. Corr, Asst. Appellate Defender, Santa Fe, for defendant-appellant.\\nJeff Bingaman, Atty. Gen., Reese Fullerton, Asst. Atty. Gen., Santa Fe, for appellee.\", \"word_count\": \"603\", \"char_count\": \"3670\", \"text\": \"OPINION\\nHENDLEY, Judge.\\nConvicted of burglary of a dwelling house, defendant appeals. He contends the trial court erred in refusing to grant his motion for a directed verdict because the unoccupied house in question was not a \\\"dwelling house\\\" for purposes of \\u00a7 30-16-3(A), N.M.S.A.1978.\\nSince this ease was assigned to the legal calendar, we accept the facts recited in the docketing statement as true. State v. Calanche, 91 N.M. 390, 574 P.2d 1018 (Ct.App. 1978). There was testimony that for more than one year the burglarized house had not been occupied. Gas, water and electricity were not being supplied to the house. Mattresses were stacked against the dining room walls and windows. The owner of the house stated that her aunt, the previous occupant, was advanced in years and extremely infirm. There was no testimony that the aunt did not expect to return.\\nWe agree with defendant that New Mexico has not expressly defined a \\\"dwelling house\\\". Our burglary statute merely differentiates between residential burglary and burglary of other structures. The common law definition of dwelling house holds that a building is not a dwelling before the first occupant has moved in; nor does it continue to be a dwelling after the last occupant has moved out with no intention of returning. Perkins on Criminal Law, p. 157 (1957); 3 Burdick, Law of Crime, \\u00a7 694 (1946); Clark and Marshall, A Treatise on the Law of Crimes, \\u00a7 13.02 (6th ed. 1958). See also, Annot., at 85 A.L.R. 428 (1933) and 78 A.L.R.2d 778 (1961).\\nDefendant contends that the facts of the prior occupant's age and infirmity indicated that \\\"she would not re-occupy the house in the foreseeable future.\\\" Assuming this to be a permissible inference, it is not the common law test to establish whether a building is a residence. There was no evidence that the occupant had abandoned the house or had no intention of returning. Compare, Hobby v. State, 480 S.W.2d 554 (Tenn.Cr.App.1972); Hargett v. State, 534 S.W.2d 909 (Tex.Cr.1976); State v. Matson, 3 Or.App. 518, 475 P.2d 436 (1970). Contrast, Moss v. State, 574 S.W.2d 542 (Tex. Cr.App.1978). Defendant was not entitled to an acquittal.\\nFinally, defendant contends that Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense. Reliance on Jackson v. Virginia is misplaced. The omission, if any in this case, was that of an amplification of the elements of the offense. Such an omission is not error. State v. Padilla, 90 N.M. 481, 565 P.2d 352 (Ct. App.1977). The jury was instructed, without objection, in the language of N.M.U.J.I. Crim. 16.21, N.M.S.A.1978: \\\"A 'dwelling house' is any structure, any part of which is customarily used as living quarters.\\\" Under the facts recited in the docketing statement, this instruction adequately instructed the jury on the essential elements to return a verdict of guilty of burglary of a dwelling house. The defendant did not make a tender nor was there evidence which would make this amplification a critical determination. In light of the foregoing, we find no basis for defendant's claim. Accordingly, we affirm.\\nIT IS SO ORDERED.\\nLOPEZ and WALTERS, JJ., concur.\"}"

nm/1580736.json

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+"{\"id\": \"1580736\", \"name\": \"HOGUE et al. v. SUPERIOR UTILITIES, Inc., et al.\", \"name_abbreviation\": \"Hogue v. Superior Utilities, Inc.\", \"decision_date\": \"1949-10-25\", \"docket_number\": \"No. 5176\", \"first_page\": \"452\", \"last_page\": 458, \"citations\": \"53 N.M. 452\", \"volume\": \"53\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T19:59:03.224808+00:00\", \"provenance\": \"CAP\", \"judges\": \"BRICE, C. J., and LUJAN, SADLER and COMPTON, JJ., concur.\", \"parties\": \"HOGUE et al. v. SUPERIOR UTILITIES, Inc., et al.\", \"head_matter\": \"210 P.2d 938\\nHOGUE et al. v. SUPERIOR UTILITIES, Inc., et al.\\nNo. 5176.\\nSupreme Court of New Mexico.\\nOct. 25, 1949.\\nGlen G. Hilford, Hot Springs, for appellants.\\nDouglass K. Fitzhugh, Hot Springs, for appellees Superior Utilities, Inc., and Jane Sickle Lewis.\", \"word_count\": \"2334\", \"char_count\": \"13895\", \"text\": \"McGHEE, Justice.\\nThe appellants owned all of the stock of the defendant corporation, which operates a gas distribution system in Hot Springs, New Mexico. They sold the stock to the defendant George W. Lewis pursuant to a contract entered into on March 27, 1946, artd received in payment therefor cash, property, the assumption by the corporation of a mortgage due an Albuquerque bank the payment of which had been guaranteed by them, and the note of the corporation to the plaintiffs for $18,973.87 payable $1,000 annually beginning April 1, 1947, secured by mortgages on the personal and real property of the corporation.\\nLater the corporation issued certificates for nine shares of its stock to George W. Lewis, eight shares to his wife, Jane Sickle Lewis, and one share to his brother, Carlton T. Lewis.\\nDefault was made in the interest payments due on October 1, 1947, and January 1, 1948, and the plaintiffs declared the entire indebtedness due under an acceleration clause in the mortgages and filed an action seeking their foreclosure, and also asked reimbursement for $600 paid on the mortgage to the Albuquerque bank.\\nThe defendant corporation and Jane Sicjde Lewis answered admitting the execution and delivery of the 'note and mortgages but claimed that it was ultra vires and void, and that the corporation received no consideration therefor. By cross complaint it sought the recovery of $2,443.50 in meter deposits left with it by customers but which the plaintiffs had in their possession until it was applied on the note. It also sought the recovery of $906 paid by it as-a commission for the benefit of the plaintiffs, and also the sum of $1,777.85 it had paid on the note before suit was filed.\\nThe defendant Lunsford filed a disclaimer' and the complaint was dismissed as to him. The plaintiffs also dismissed their complaint against the defendants Cunningham, El Paso National Bank and Harrison.\\nIt was stipulated that the note and mortg\\u00e1ges were executed and delivered by the defendant corporation without submission to or the permission of the Public Service Commission of the State of New Mexico, as required by Sec. 72-506, N.M.S.A.1941. The trial court concluded that they were therefore void under the provisions of Sec. 72-511, N.M.S.A.1941 and cancelled them. It also gave the corporation judgment against the plaintiffs for the sum of $2,443.51 representing the meter deposits in their hands at the time of the transfer of the stock which they had credited on the note, but denied recovery as to the other items set up in the cross complaint.\\nApparently the parties to the stock transaction were not aware .of the fact that the permission of the Public Utility Commission was required before a public utility could mortgage its property to secure an indebtedness due in more than eighteen months until about the time the defendant filed a motion for a summary judgment, and the plaintiffs then asked permission to amend and set up that the defendant George W. Lewis was the sole owner of the stock of the corporation at the time of the execution and delivery of the note. Ruling on the motion was deferred until the hearing when another motion was filed asking that they be allowed to make George W. Lewis a party and asking that they be given a vendor's lien on the stock. The motion was denied by the trial court.\\nSec. 72-301, N.M.S.A.1941, declares the public policy of this state as to the regulation of public utilities and reads as follows:\\n\\\"72-301. Declaration of policy. \\u2014 (A) Public utilities as hereinafter defined, are affected with the public interest in that, among other things,\\n\\\"(1) A substantial portion of their business and activities involves the rendition of essential public services to large numbers of the general public.\\n\\\"(2) Their financing involves the investment of large sums of money, including capital obtained from many members of the general public.\\n\\\"(3) The development and extension of their business directly affects the development, growth, and expansion of the general welfare, business and industry of this state.\\n\\\"(B) It is the declared policy of this state that the public interest, the interest of consumers, and the interest of investors require the regulation and supervision of such public utilities to the end that reasonable and proper services shall be available at fair, just, and reasonable rates, and to the end that capital and investment may be encouraged and attracted so as to provide for the construction, development and extension of proper plants and facilities for the rendition of service to the general public and to industry.\\\"\\nThe applicable section of our statutes relating to the issuance of stocks, securities and indebtedness are Sections 72-506, 72-508, and 72-511, N.M.S.A.1941, and read as follows:\\n\\\"72-506. Issuance, assumption, or'guarantee of securities. \\u2014 The power of a public utility to issue, assume or guarantee securities, and to create liens on its property situated within this state is a special privilege, hereby subjected to the supervision and control of the commission as hereinafter in this act (\\u00a7\\u00a7 72-[ XXX-XX-XXXX ]) set forth. A public utility, when authorized by order of the commission and not otherwise, may issue stocks and stock certificates and may issue, assume or guarantee other-securities payable at periods of more than eighteen (18) months after the date thereof, for the following purposes and no other: For the acquisition of property; for the construction, completion, extension or improvement of its facilities; for the improvement or maintenance of its service; for the' discharge or lawful refunding of its obligations; for the reimbursement of moneys actually expended for said purposes from income or from any other moneys in the treasury not secured by or obtained from the issue, assumption or guarantee of securities, within five (5) years next prior to the filing of an application with the commission for the required authorization; or for any of the aforesaid purposes.\\\"\\n\\\"72-508. Exempted securities. \\u2014 A public utility may issue securities, other than stock or stock certificates, payable at periods of not more than eighteen (18) months after the date of issuance of same, and secured or unsecured, without application to or order of the commission, but no such securities so issued shall in whole or in part be refunded by any issue of stocks, stock certificates or other securities having a maturity of more than eighteen (18) months, except on application to and approval of the commission.\\\"\\n\\\"72-511. Securities void unless approved. \\u2014 All securities issued, assumed or guaranteed without application to and approval of the commission, except the securities mentioned in section 20 (\\u00a7 72-508) of'-this act, shall be void.\\\"\\nAs we held in Delgado v. Delgado, 42 N.M. 582, 82 P.2d 909, 118 A.L.R. 1175, ordinarily where parties to illegal contracts are in pari delicto, a court will leave them where it finds them, whether the contract is executory or executed, refusing relief to both. There is, however, an exception to this rule where the public interest is involved, and in such a case affirmative relief will not be denied, although one of the guilty parties may benefit. 13 C.J. Contracts, \\u00a7 441, 17 C.J.S., Contracts, \\u00a7 278a. As above stated, the trial court granted affirmative relief in cancelling the note and mortgages, and also in allowing recovery of the meter deposits. The question for determination is whether the general rule or the exception controls.\\nIt will be noted Section 72-301 declares it to be the public policy of the state to require the strict regulation of the financial affairs of public utilities, to the end that they, may be adequately financed and, among other things, render service at reasonable rates. Section 72-506 declares that the power to issue, assume or guarantee securities, and to create liens on its property situated within this state is a special privilege subject to the supervision and control of the commission. Section 72-508 exempts securities, secured or unsecured, which are payable in not more than eighteen months. Section 72-511 declares that all securities, other than those exempted, issued without application to and approval by the commission shall be void.\\nThe plaintiffs say that the Superior Utilities, Inc., was a one man corporation owned by George W. Lewis after his purchase of the stock and that it should not be allowed to urge the invalidity of the note and mortgages. We agree that debts should be paid, but we are confronted by the positive provisions of our Public Utility Act above set out. The plaintiffs contend'that securities issued in violation of the act are voidable only, and that under the facts of this case we should so construe it. We proceed to a consideration of these contentions.\\nThe plaintiffs cite our holding in State v. Southern Pacific Company, 34 N.M. 306, 281 P. 29, that statutes will be construed to prevent injustice, and say we should avoid a strict construction of the statute requiring the approval of the Public Service Commission before long term securities may be issued, to the end that a one man or family corporation may be held liable where its stockholders obtained the benefits of the transaction. This argument appeals to us but we are confronted by the legislative declaration of public policy.\\nIn discussing the question of whether an act was void or voidable Judge Cooley stated in Beecher v. Marq. & Pac. R. M. Co., 45 Mich. 103, 108, 7 N.W. 695, 697: \\\"If it is apparent that an act is prohibited and declared void on grounds of general policy, we must suppose the legislative intent to be that it shall be void to all intents; while if the manifest intent is to give protection to determinate individuals who are sui juris the purpose is sufficiently accomplished if they are given the liberty of avoiding it.\\\"\\nThe statement was quoted with approval by Mr. Justice Zinn in Kyle v. Chaves, 42 N.M. 21, 29, 74 P.2d 1030, in passing upon the question of whether the act of a treasurer in assigning a tax sale certificate was void or voidable.\\nExperience has taught that public utility companies cannot be allowed to contract indebtedness at will and run their affairs as it may please them, and when the legislature passed the 1941 Act for their control it gave the Public Service Commission broad powers over them. The statute is mandatory in form and declares the public policy of the state. As the intent and language is plain we must give it effect. Indebtedness created or stocks issued without permission of the regulatory bodies in states having similar statutes have been held void in Davis v. Watertown National Bank, Tex.Civ.App., 178 S.W. 593, P.U.R. 1915E, 531; Jones v. Abernathy, Tex.Civ.App., 174 S.W. 682; New York C. R. Co. v. Stevenson, 277 Ill. 474, 115 N.E. 633; Attorney General v. Massachusetts Pipe Line Gas Co., 179 Mass. 15, 60 N.E. 389; Augusta Trust Co. v. Federal Trust Co., 1 Cir., 153 F. 157; and in Re New York & R. Gas Co. (N.Y.) P.U.R.1918F, 439.\\nWithout passing upon the liability of the purchaser Lewis if suit be brought against him, we must hold that the note and mortgages are void so far as the defendant corporation is concerned, and the ruling of the trial court on this point was correct.\\nThe plaintiffs next urge that the trial court erred in granting the defendant utility company judgment for the meter deposits.\\nThis money had been deposited by customers to guarantee payment of their accounts, and as they might cease the purchase of gas they were entitled to a refund from the corporation of the amount deposited, less anything due on account. The plaintiffs had deposited this money in their individual accounts and instead of paying it over to the utility company they applied it on the note and mortgage. The corporation was liable to its customers for the amount due each from this trust fund.\\nThe plaintiffs say that the utility company is a one man or family corporation, and ask us to disregard the corporate entity, and cite State Trust & Savings Bank et al. v. Hermosa Land & Cattle Co., 30 N.M. 566, 240 P. 469, and United States Gypsum Co. v. Mackey Wall Plaster Co., 60 Mont. 132, 199 P. 249. If the public utility feature and our statutes relating to indebtedness created by public utilities Were not present, such argument would be very persuasive, but the fact remains that, the note on which this money was credited was void under our statutes. To deny affirmative relief on this item would be to dear the road for evasions of the mandatory features of the Public Utility Act. We hold that the action for the recovery of these deposits comes within the exception to the general rule.\\nThe next error claimed is on account of the refusal of the trial court to allow the piaintiffs to amend the complaint to make G.eorge W. Lewis .a party defendant and assert a vendor's lien on the stock acquired by the Lewis family.\\nThis application came late in the case and we cannot say that the court abused its discretion in denying it.\\nThe last claim of error is the refusal of the trial court to allow the plaintiffs judgment for $600 paid on a first mortgage to the Albuquerque bank. This money was paid by the plaintiffs, as they claim, to protect their second mortgage which we have held to be void. It is stated by the plaintiffs in their brief that the mortgage to the bank was also given without the per mission of the Public Service Commission. The ruling of the court on this item was also correct.\\nThe judgment will be affirmed, and it is so ordered.\\nBRICE, C. J., and LUJAN, SADLER and COMPTON, JJ., concur.\"}"

nm/1582480.json

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+"{\"id\": \"1582480\", \"name\": \"STATE of New Mexico, Plaintiff-Appellee, v. Alfredo ORONA, Defendant-Appellant\", \"name_abbreviation\": \"State v. Orona\", \"decision_date\": \"1982-09-23\", \"docket_number\": \"No. 5730\", \"first_page\": \"668\", \"last_page\": 670, \"citations\": \"98 N.M. 668\", \"volume\": \"98\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T19:52:53.508956+00:00\", \"provenance\": \"CAP\", \"judges\": \"WALTERS, C. J., and LOPEZ, J., concur.\", \"parties\": \"STATE of New Mexico, Plaintiff-Appellee, v. Alfredo ORONA, Defendant-Appellant.\", \"head_matter\": \"651 P.2d 1312\\nSTATE of New Mexico, Plaintiff-Appellee, v. Alfredo ORONA, Defendant-Appellant.\\nNo. 5730.\\nCourt of Appeals of New Mexico.\\nSept. 23, 1982.\\nJohn B. Bigelow, Chief Public Defender, William P. Slattery, Asst. Appellate Defender, Santa Fe, for defendant-appellant.\\nJeff Bingaman, Atty. Gen., Anthony Tupler, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.\", \"word_count\": \"676\", \"char_count\": \"4202\", \"text\": \"OPINION\\nHENDLEY, Judge.\\nDefendant appeals a denial of presentence confinement credit under \\u00a7 31-20-12, N.M.S.A.1978 (1981 Repl. Pamph.). We affirm.\\nDefendant was confined in the penitentiary at Santa Fe on a burglary charge unrelated to the perjury charge at issue here. He was transported to the Chaves County jail to answer the perjury charge. On his motion, because he was losing good time and missing school and work, he was transported back to Santa Fe after his waiver of arraignment. He was returned to Chaves County for the purpose of pleading guilty to the perjury charge and sentencing. His sentence for the perjury was one year consecutive to the burglary sentence. No provision was made for presentence confinement credit. His pro se motion sought credit for all the time he was under the perjury charges. His appeal narrows the time to only that time spent in Chaves County.\\nIn State v. Brewton, 83 N.M. 50, 487 P.2d 1355 (Ct.App.1971), defendant was serving a penitentiary sentence when he committed a misdemeanor. He pled guilty to the misdemeanor and wanted presentence confinement credit for the twenty-eight days between the time he was served with an arrest warrant for the misdemeanor and the time judgment on it was entered. This Court held \\u00a7 31-20-12, supra, inapplicable because defendant's \\\"confinement during this period was pursuant to his prior sentence.\\\"\\nState v. Barefield, 92 N.M. 768, 595 P.2d 406 (Ct.App.1979), recognized the possibility of obtaining credit for \\\"presentenee confinement even though he [defendant] was also confined, at the same time, in [another case]\\\". However, because the record in Barefield, supra, was ambiguous, this Court could not resolve the matter.\\nState v. Ramzy, 649 P.2d 504 (Ct.App.1982), however, dealt with specific facts. There, defendant was out on appeal bond in Case One when he committed the offenses for which he was charged in Case Two. Because of the Case Two charges, his appeal bond in Case One was revoked. At about the same time bond, which defendant did not make, was set in Case Two. Defendant's incarceration was, therefore, attributable to both the Case One and Case Two charges. Ramzy, supra, states that the decisive factor is \\\"whether the confinement was actually related to the charges of that particular case [for which credit is sought].\\\" Because 1) defendant was not originally confined in either case, 2) Case Two triggered the bond revocation in Case One, and 3) bond was set in Case Two, defendant's incarceration was \\\"undoubtedly partly, if not totally, caused by Case Two charges. There is sufficient connection between Case Two and the confinement . to warrant credit for such incarceration and confinement, even though he [defendant] was at the same time in custody . in Case One.\\\" Ramzy, supra.\\nOne question Ramzy, supra, directs us to ask is, is the confinement in Chaves County actually related to the perjury charge? State v. Martin, 94 N.M. 251, 609 P.2d 333 (Ct.App.1980), holds that defendant's confinement during the entire time at issue here is a penitentiary confinement. Ramzy, supra, noted three factors that caused defendant's confinement there to be related to Case Two. None of those factors are present here. First, defendant here did not start out unconfined. Second, the perjury charges did not cause his confinement in any way \\u2014 he was already confined. Third, there was nothing, such as bond being set in the perjury case, to even indicate that he was being held on the perjury charge. All we have here is a transfer of the place of confinement. The actual confinement being unrelated to the perjury charge, the trial court was correct under Brewton, Barefield, and Ramzy, supra, in denying defendant's motion for presentence confinement credit.\\nAffirmed.\\nIT IS SO ORDERED.\\nWALTERS, C. J., and LOPEZ, J., concur.\"}"

nm/1582603.json

@@ -0,0 +1 @@
+"{\"id\": \"1582603\", \"name\": \"Genevieve ARAGON, Plaintiff-Appellant, and Vickie Vigil, guardian of Rudy A. Aragon, Jr., Plaintiff-Appellee, v. ANACONDA MINING COMPANY, Employer and Insurer, Defendant-Appellee\", \"name_abbreviation\": \"Aragon v. Anaconda Mining Co.\", \"decision_date\": \"1982-04-20\", \"docket_number\": \"No. 5376\", \"first_page\": \"65\", \"last_page\": 69, \"citations\": \"98 N.M. 65\", \"volume\": \"98\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T19:52:53.508956+00:00\", \"provenance\": \"CAP\", \"judges\": \"WALTERS, C. J., and SUTIN, J., concur.\", \"parties\": \"Genevieve ARAGON, Plaintiff-Appellant, and Vickie Vigil, guardian of Rudy A. Aragon, Jr., Plaintiff-Appellee, v. ANACONDA MINING COMPANY, Employer and Insurer, Defendant-Appellee.\", \"head_matter\": \"644 P.2d 1054\\nGenevieve ARAGON, Plaintiff-Appellant, and Vickie Vigil, guardian of Rudy A. Aragon, Jr., Plaintiff-Appellee, v. ANACONDA MINING COMPANY, Employer and Insurer, Defendant-Appellee.\\nNo. 5376.\\nCourt of Appeals of New Mexico.\\nApril 20, 1982.\\nMichael G. Rosenberg, Michael G. Rosenberg & Associates, Albuquerque, for plaintiff-appellant.\\nJames G. Chakeres, Horton & Associates, Albuquerque, for plaintiff-appellee.\\nDeborah S. Davis, Shaffer, Butt, Thornton & Baehr, P. C., Albuquerque, for defendant-appellee.\", \"word_count\": \"2780\", \"char_count\": \"16772\", \"text\": \"OPINION\\nLOPEZ, Judge.\\nThis case is an appeal from a judgment in a Workmen's Compensation case awarding all available death benefits of the deceased workman, Rudy A. Aragon, to his son, Rudy A. Aragon, Jr. We affirm.\\nThe appeal presents the following three issues: 1. Reduction of death benefits; 2. Apportionment of death benefits; and 3. Attorney's fees.\\nRudy Aragon was accidently killed while in the course and scope of his employment with Anaconda Mining Company. His mother claimed death benefits on the basis that she was at least partially dependent on her son. Then Aragon's acknowledged illegitimate son, Rudy Aragon, Jr., made a claim for benefits.\\nThe trial court found that the mother was partially dependent on the deceased, but it awarded no benefits to her. It awarded all available benefits to the deceased's infant son. The mother thus appeals the failure of the trial court to award her any death benefits. The son appeals the reduction of the maximum available benefits by 10% pursuant to \\u00a7 52-1-10, N.M.S.A. 1978.\\nReduction of Death Benefits\\nThe trial court made the following findings of fact regarding reduction of death benefits:\\n8. When killed, Rudy A. Aragon was working in an unsafe area of the mine despite warning signs and training by the company. He failed to use safety devices provided to him and on which he was trained by defendant, The Anaconda Company.\\nThe son challenges this finding and argues in his brief that \\\"it stretches the imagination as to how a statute designed to protect the workman can be used against his dependents to reduce their death benefits\\\". We disagree.\\nThe pertinent statute is \\u00a7 52-l-10(A):\\nA.In case an injury to or death of a workman results from his failure to observe statutory regulations appertaining to the safe conduct of his employment, or from his failure to use a safety device provided by his employer, then the compensation otherwise payable under the Workmen's Compensation Act [52-1-1 to 52-1-69 NMSA 1978] shall be reduced 10%.\\nThere was evidence at trial to show that the deceased was aware that the area in which he was killed was unsafe and that he was not allowed there. There was substantial evidence to support the court's finding that Aragon was in an unsafe area, despite warnings and safety training, when a slab fell on him and killed him. Therefore, we conclude that the court's reduction of the available benefits was proper under \\u00a7 52-1-10(A).\\nApportionment of Death Benefits\\nThe mother challenges the judgment of the trial court, which awarded the maximum workmen's compensation death benefits minus 10% to the son of the deceased, and denied any benefits to her. Section 52-1-46, N.M.S.A.1978, governs workmen's compensation death benefits. The statute sets out a clear set of priorities in allocating these benefits:\\n52-1^46. Compensation benefits for death.\\nSubject to the limitation of compensation payable under Subsection G of this section, if an accidental injury sustained by a workman proximately results in his death within the period of two years following his accidental injury, compensation shall be paid in the amount and to the persons entitled thereto, as follows:\\nA. if there be no eligible dependents, except as provided in Subsection C of Section 52 \\u2014 1\\u201410 NMSA 1978 of the Workmen's Compensation Act, the compensation shall be limited to the funeral expenses, not to exceed one thousand five hundred dollars ($1,500), and the expenses provided for medical and hospital services for the deceased, together with all other sums which the deceased should have been paid for compensation benefits up to the time of his death;\\nB. if there be eligible dependents at the time of the workman's death, payment shall consist of a sum not to exceed one thousand five hundred dollars ($1,500) for funeral expenses, and expenses provided for medical and hospital services for the deceased, together with such other sums as the deceased should have been paid for compensation benefits up to the time of his death, and compensation benefits to the eligible dependents as hereinafter specified, subject to the limitation of the maximum period of recovery of compensation of six hundred weeks;\\nC. if there are eligible dependents entitled thereto, compensation shall be paid to the dependents or to the person appointed by the court to receive the same for the benefit of the dependents in such portions and amounts, to be computed and distributed as follows:\\n(1) to the child or children, if there be no widow or widower entitled to compensation, sixty-six and two-thirds percent of the average weekly wage of the deceased;\\n(2) to the widow or widower, if there be no children, sixty-six and two-thirds percent of the average weekly wage of the deceased, until remarriage; or\\n(3) to the widow or widower, if there be a child or children living with the widow or widower, forty-five percent of the average weekly wage of the deceased, or forty percent, if such child is not or all such children are not living with a widow or widower, and in addition thereto, compensation benefits for the child or children which shall make the total benefits for the widow or widower and child or children sixty-six and two-thirds percent of the average weekly wage of the deceased. When there are two or more children, the compensation benefits payable on account of such children shall be divided among such children, share and share alike; and\\n(4) two years' compensation benefits in one lump sum shall be payable to a widow or widower upon remarriage; however, the total benefits shall not exceed the maximum compensation benefit as provided in Subsection B of this section:\\nD. if there be neither widow, widower nor children, compensation may be paid to the father and mother or the survivor of them, if dependent to any extent upon the workman for support at the time of the workman's death, twenty-five percent of the average weekly wage of the deceased, and in no event shall the maximum compensation to such dependents exceed the amounts contributed by the deceased workman for their care; provided, that if the father and mother, or the survivor of them, shall have been totally dependent upon such workman for support at the time of the workman's death, he, she or they shall be entitled to fifty percent of the average weekly wage of the deceased;\\nE. if there be neither widow, widower nor children, nor dependent parent, then to the brothers and sisters, and grandchildren, if actually dependent to any extent upon the deceased workman for support at the time of the workman's death, thirty-five percent of the average weekly wage of the deceased workman with fifteen percent additional for brothers and sisters and grandchildren in excess of two, with a maximum of sixty-six and two-thirds percent of the average weekly wage of the deceased, and in no event shall the maximum compensation to partial dependents exceed the respective amounts contributed by the deceased workman for their care;\\nF. in the event of the death or remarriage of the widow or widower entitled to compensation benefits as provided in this section, the surviving children shall then be entitled to compensation benefits computed and paid as provided in Paragraph (1) of Subsection C of this section for the remainder of the compensable period. In the event compensation benefits payable to children as provided in this section are terminated as provided in Subsection E of Section 52-1 \\u2014 17 NMSA 1978, a surviving widow or widower shall then be entitled to compensation benefits computed and paid as provided in Paragraphs (2) and (4) of Subsection C of this section for the remainder of the compensable period; and\\nG. no compensation benefits payable by reason of a workman's death shall exceed the maximum weekly compensation benefits as provided in Section 52-1\\u2014 41 NMSA 1978 and no dependent nor any class thereof, other than a widow, widower or children, shall in any event be paid total benefits in excess of seven thousand five hundred dollars ($7,500) exclusive of funeral expenses and the expenses provided for medical and hospital services for the deceased paid for by the employer.\\nThe statute creates three classes of dependents eligible for death benefits: Class 1, surviving spouses and children of the deceased; Class 2, dependent parents of the deceased; and Class 3, dependent siblings and grandchildren of the deceased.\\nThe plain meaning of the statutory language quoted above gives children and surviving spouses priority over parents of the deceased, and both of those classes priority over the siblings and grandchildren of the deceased.\\nThe applicable subsection is (C)(1) which states that \\\"compensation shall be paid (1) to the child if there be no widow . . . sixty-six and two-thirds percent of the average weekly wage of the deceased[.]\\nThis language is very clear and unambiguous. The law in New Mexico is that when the language is clear and the intent of the legislature is understood, the provisions of the statutes are mandatory and we have a duty to follow it. See Security Trust v. Smith, 93 N.M. 35, 596 P.2d 248 (1979).\\nSubsection D, which allows benefits of a parent or a deceased workman, is not applicable in the case at bar because the workman left a surviving son. Subsection D applies only \\\"if there be neither widow, widower, nor children.\\\"\\nWe nevertheless, will discuss two New Mexico death cases involving allocation of death benefits.\\nIn Employer's Mutual Liability Ins. Co. of Wis. v. Jarde, 73 N.M. 371, 388 P.2d 382 (1963), the New Mexico Supreme Court interpreted a predecessor to \\u00a7 52-1-46, which contained similar language, with one exception, as to allocation of benefits. That exception appears in subsection C of 59-10-18.7, N.M.S.A. 1953 (Repl. Vol. 8, pt. 1, 1960), which was in effect at the time the workman in Jarde died. It reads as follows:\\nC. If there are eligible dependents entitled thereto, compensation shall be paid to the dependents or to the person appointed by the court to receive the same for the benefit of the dependents in such portions and amounts, subject to the maximum limitation of thirty-eight dollars ($38.00 a week, as the court, bearing in mind the necessities of the case and the best interests of the dependents and of the public may determine, to be computed and distributed as follows:\\nThe pertinent quotation is \\\"bearing in mind the necessities of the case and the best interests of the dependents and of the public may determine^] \\\"\\nThe Supreme Court in Jarde held that the classes of beneficiaries set out in the statute were not mutually exclusive, and that the benefits could be divided between members of the different classes. It added the proviso that the amount awarded to all beneficiaries could not exceed the maximum amount of available benefits. In Jarde, as in the current case, the parties claiming benefits were the mother of the deceased and the child of the deceased. The trial court awarded benefits to the child and the mother, and the Supreme Court approved this award. In the Jarde case, the insurance company filed an interpleader action requesting that the mother and the son be decreed to interplead and settle among themselves their claims to benefits. Once the trial court determined that both claimants were entitled to a percentage of benefits, the insurance company appealed that part of the judgment which awarded benefits to the mother. The Supreme Court affirmed the trial judge's awards to both the mother and the child of the deceased, holding that \\\"the payment of compensation to the dependent daughter did not preclude the rights of the dependent mother.\\\" In that case, the mother and the child had agreed to the division of the benefits. In the case at bar, the mother is contesting the award of all available benefits to the son. We conclude that Jarde is not controlling because of the additional language in subsection C, as we have discussed, and because of the posture of the proceedings both at trial and on appeal and the position of the parties. However, we want to make it clear that we are not overruling Jarde. Delgado v. Alexander, 84 N.M. 717, 507 P.2d 778 (1973).\\nIn Cunnan v. Blakley and Sons, Inc., 93 N.M. 217, 598 P.2d 1177 (Ct.App.1979), this court held that the trial court's allocation of death benefits between a widow, a stepson and a son, which was presumably equitable, was not an abuse of discretion:\\nAccordingly, we cannot say as a matter of law that the trial court abused its discretion in making the allocation award. In so holding, we do not say that given a change of circumstance the trial court would be precluded from changing the percentage of distribution. Such would be within the equitable powers of the trial court, (citation omitted).\\nWe conclude that Cunnan is distinguishable from the case at bar. The parties were different. In Cunnan, the workman left a widow, a stepson and a son. In the case at bar there is no widow but only a son.\\nWe hold that the trial court followed subsection C(l) properly, and it did not err in its awards of all available benefits to the workman's son. The son had a statutory priority. There was substantial evidence to support the findings of the trial court and the findings supported the trial court's conclusions.\\nAttorney's Fees.\\nThe issue of attorney's fees is whether Anaconda should pay the appellate attorney's fees for the mother and/or the son of the deceased. Anaconda argues that no appellate attorney's fees should be awarded either party. Anaconda claims that it did not refuse to pay benefits; that it was only looking out for the child's best interests by requiring that the court decide the proper beneficiary before it would pay benefits. This court, in Lauderdale v. Hydro-Conduit Corporation, 89 N.M. 579, 555 P.2d 700 (Ct.App.1976), held contrary to Anaconda's position. The court stated as follows:\\nThe employer did refuse to pay compensation. Its answer to the claim of Pat, on behalf of the children, and its answers to the claims of Francies and Nellie were identical. The employer was willing to pay compensation to the dependents entitled thereto but did not know who they were and \\\"therefore withheld payments of compensation pending a determination by appropriate authority.\\\" This was a refusal to pay. (citation omitted)\\nAfter the employer's refusal to pay compensation, Pat, on behalf of the children, collected compensation in court proceedings. These two facts being established, the appellate court had authority to award attorney fees on appeal. Section 59-10-23(D), supra, does not limit this authority to situations where the employer appeals. The statutory authority exists even though the employer is satisfied with the trial court judgment and an unsuccessful claimant appeals in an effort to obtain a part of the compensation awarded to a successful claimant.\\nThe facts of this case show that our holding is equitable. On appeal, the employer has taken the position that it will pay compensation to the claimants held by this Court to be entitled to compensation. The employer has not attempted to defend the compensation award in favor of the children. It was left to Pat to defend the children's compensation against the efforts of Nellie and Francies to diminish the award to the children. Pat, on behalf of the children, is in the position of collecting compensation on the appeal by defending the trial court's award. Under \\u00a7 59-10-23(D), supra, the employer should pay a reasonable attorney fee for the successful defense on appeal. [\\u00a7 59-10-23(D) is equivalent to the current \\u00a7 52-l-54(D), N.M.S.A.1978.]\\nThe record shows that Anaconda did not defend the award of benefits to the son on appeal. Anaconda merely defended the decision to reduce benefits by 10%, and it argued that it should not have to pay the son's attorney's fees. Under the holding of Lauderdale, Anaconda is properly required to pay the son's appellate attorney's fees, and we award such fees in the amount of $1,800.00. We do not award any appellate attorney's fees to the mother.\\nThe judgment of the trial court is affirmed. The son is awarded appellate attorney's fees in the sum of $1,800.00.\\nIT IS SO ORDERED.\\nWALTERS, C. J., and SUTIN, J., concur.\"}"

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+"{\"id\": \"1584794\", \"name\": \"HUGHES et al. v. LIPPINCOTT\", \"name_abbreviation\": \"Hughes v. Lippincott\", \"decision_date\": \"1952-06-11\", \"docket_number\": \"No. 5437\", \"first_page\": \"473\", \"last_page\": 483, \"citations\": \"56 N.M. 473\", \"volume\": \"56\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T17:35:50.995536+00:00\", \"provenance\": \"CAP\", \"judges\": \"LUJAN, C. J., and SADLER, COMPTON, and COORS, JJ., concur.\", \"parties\": \"HUGHES et al. v. LIPPINCOTT.\", \"head_matter\": \"245 P.2d 390\\nHUGHES et al. v. LIPPINCOTT.\\nNo. 5437.\\nSupreme Court of New Mexico.\\nJune 11, 1952.\\nRehearing Denied July 2, 1952.\\nHenry J. Hughes, Santa Fe, for appellants.\\nSeth & Montgomery, Wm. R. Federici, Santa Fe, for appellee.\", \"word_count\": \"4536\", \"char_count\": \"25794\", \"text\": \"McGHEE, Justice.\\nThe controlling issue presented by this appeal is whether the defendant, Camilla Hare Lippincott, is to be' sustained in her contention the conveyance from which she derives title describes her property as bounded by a way, thus vesting in her an easement of passage over a private way. The plaintiffs and the defendant derive their respective titles to adjoining property from common grantors, Kenneth M. Chapman and wife. The deed in question was given October 1, 1941, to defendant's predecessor in title, Joseph T. Curtiss, and conveyed a tract of land fronting on a public street in the city of Santa Fe, New Mexico, the grantors retaining ownership of the portion directly behind the tract sold, not on a public street, together with a narrow strip approximately 20 feet wide, know as Plaza Balentin, to be used as a way to the public street, which private way extended past both properties. The property conveyed by the October 1,-1941, deed was described therein as follows:\\n\\\"Beginning at an iron pipe set for the Southeast corner, at the Northwest corner of the junction of Plaza Balentin with Acequia Madre Street, whence an iron pipe marking the Southwest corner of property of J. D. Slye at the Northeast corner of said junction bears S. 88\\u00b0 20' E. 23.0 feet distant;' thence N. 88\\u00b0 20' W. 113.95 feet along the North side of Acequia Madre Street to an iron pipe marking the Southwest corner of this property and the Southeast corner of property of Jack Davis; whence an iron pipe marking an angle point in the South \\u2022 line of said Davis property bears S. 89\\u00b0 49' W. 54.7 feet distant; thence N. 09\\u00b0 03' E. 131.2 feet to an iron pipe marking the Northwest corner; thence S. 76\\u00b0 28' E. 69.55 feet to an iron' pipe; thence N. 14\\u00b0 01' E. 11.75 feet to an iron pipe; thence S. 76\\u00b0 28' E. 30.95 feet to an iron pipe marking the Northeast corner; thence S. 32\\u00b0 02' E. 16.7 feet to an iron pipe on the West side of Plaza Balentin; thence S. 08\\u00b0 38' W. along the West side of Plaza Balentin 107.75 feet to the Southeast corner, the place and point of beginning. Bounded North by property of Mrs. K. M. Chapman; East by Plaza Balentin; South by Acequia Madre and West by Jack Davis and J. A. Lowe. Being a portion of Lots 49 and 50, Block 83, King's Official Map of the City of Santa Fe, New Mexico.\\\" (Emphasis supplied.)\\nThe plaintiffs, subsequent grantees from the Chapmans, sought to quiet title to the private way, Plaza Balentin, against the defendant's claim of easement therein. The trial court found substantially for the defendant and its pertinent findings of fact and conclusions of law were as follows:\\n\\\"2. Defendant, Camilla Hare Lippincott, is the owner of the following described real estate in the City of Santa Fe, County of Santa Fe, State of New Mexico (Being that property described in deed from Kenneth M. Chapman and wife to Joseph T. Curtiss.)\\n\\\"3. That Joseph T. Curtiss purchased the property now owned by Defendant Lippincott from Kenneth M. Chapman and Kate M. Chapman by warranty deed dated October 1st, 1941, recorded in Book 24 at Page 4 of the Records of Deeds in the office of the County Qerk of ' Santa Fe County, New Mexico, and that the description of the property in said deed is the same as set out in the warranty deed to Defendant Lippincott from Joseph T. Curtiss.\\n\\\"4. Kenneth M.. Chapman and Kate M. Chapman, his wife, were the common grantors of the land now owned by Plaintiffs and Defendant Lippincott.\\n\\\"5. Kenneth M. Chapman and Kate M. Chapman, his wife, were the owners of the fee in the way or street known as Plaza Balentin at the time they conveyed to Joseph T. Curtiss the property described in warranty deed dated October 1st, 1941, filed for record in Book 24 at Page 4 of the Records of Deeds of Santa Fe County.\\n\\\"6. That deed from Kenneth M. Chapman and Kate M. Chapman to Joseph T. Curtiss called for the way or street known as Plaza Balentin as a boundary.\\n\\\"7. The deed from Joseph T. Curtiss to Defendant Lippincott called for the way or street known as Plaza Balentin as a boundary.\\n\\\"8. Plaza Balentin is a continuous way from Acequia Madre Street to Delgado Street within the City of Santa Fe, State of New Mexico, and adjoins the property now owned by. the Plaintiffs and the Defendant Lippincott.\\n\\\"9. When Kenneth M. Chapman and Kate M. Chapman, his wife, common grantors, owned Plaza Balentin and adjoining property, the said way was used for all the premises adjoining said Plaza Balentin.\\n\\\"10. Joseph T. Curtiss has not abandoned any rights which he may have or may have had in and to Plaza Balentin.\\n\\\"11. Defendant, Camilla Hare Lip\\u2022pincott, has not abandoned any rights which she may have in and to Plaza Balentin.\\n\\\"12. Defendant, Joseph T. Curtiss, 'did not authorize any agent to abandon any rights, title or interest which he had in Plaza Balentin.\\n\\\"13. The most northeasterly corner of Defendant Lippincott's property, being an area of approximately 12 feet by 32 feet, was originally sold by Kenneth M. Chapman and Kate M. Chapman, his wife, to Joseph T. Curtiss as a site for a private garage.\\n\\\"14. If the most northeasterly portion of the property owned by Defendant Lippincott and formerly owned by Defendant Curtiss were to be used as a private garage, access to it could only be gained by and through Plaza Balentin, and thence over Plaintiffs' property.\\n\\\"15. The most northeasterly portion of Defendant Lippincott's property, being approximately 12 feet by 32 feet in area, abuts the way known as Plaza Balentin, and access to said area can not be had without first crossing any of plaintiffs'property.\\n\\u2756\\n\\\"17. Defendant Lippincott had no notice that Plaintiffs denied that her grantors had an easement in and to the Plaza Balentin.\\n\\\"18. On March 20th, 1948, Defendant Lippincott entered into an Agreement to sell her property to Aimee Seyfort Ruegg, and pursuant to said Agreement, Defendant Lippincott executed a warranty deed and placed same in escrow with the First National Bank of Santa Fe, New Mexico, and Mrs. Ruegg deposited with said Bank the balance of $17,000.00 due on the purchase price; that the said contract provided that the Bank should deliver the warranty deed to Mrs. Ruegg and the $17,000.00 to Defendant Lippincott upon receipt of approval of title by Mrs. Ruegg's attorneys; that no approval of title has been submitted to the Bank by Mrs. Ruegg's attorneys and no further delivery of either the deed or the money has been made by said Bank.\\\"\\nThe court then concluded as matters of law:\\n\\\"2. That the Defendant Lippincott is entitled to a decree quieting her title in and to the property set out in .Finding of Fact No. 2, as against the Plaintiffs herein.\\n\\\"3. Plaintiffs' fee simple title to the land and real estate described in the Complaint filed in the above cause is subject to an implied easement appurtenant to the property owned by Defendant Lippincott for the purpose of ingress and egress from and to said property for residential uses over the way known as Plaza Balentin to the full extent and, width thereof as it presently exists, insofar as it is upon Plaintiffs' property.\\n\\\"4. Where a conveyance of land calls for a way or street as a boundary, and the grantor owns the fee in the land represented as the way or street, the grantor and his heirs and those claiming under him are estopped to deny that there is a street or way to the extent so bounded on the way, and the grantee and those claiming through him acquire by the deed a perpetual easement and right of passage on and over it.\\n\\\"5. That since the deed of conveyance by Kenneth M. Chapman and Kate M. Chapman to Defendant Curtiss and the deed of conveyance by Defendant Curtiss to Defendant Lippincott called for the way or street, Plaza Balentin, as a boundary, Defendant Lippincott has an implied ease ment by law on and over Plaza Balentin appurtenant to her property.\\n\\\"6. There has been no abandonment of any rights which Defendant Lippincott may have in and to the way known as Plaza Balentin.\\n\\\"7. Under the Agreement dated March 20th, 1948, bewteen Defendant Lippincott and Mrs. Ruegg, Defendant Lippincott retained legal title to the property, and has a sufficient interest in said property, and is a proper party to defend the action brought by Plaintiffs and to prosecute her counterclaim against said Plaintiffs.\\\"\\nThe plaintiffs now contend (1) there can be easement by implication in New Mexico unless the same is \\\"by necessity\\\"; (2) that any right in the private way was excluded under the terms of the conveyance; that the sentence of the description in the deed to defendant's predecessor in title reading: \\\"Bounded North by property of Mrs. K. M. Chapman; East by Plaza Balentin; South by Acequia Madre and West by Jack Davis and J. A. Lowe.\\\" is inoperative to vest any right in the way because the first portion of the description by courses and distances excludes the way; that the reference to the way is descriptive merely and for purposes of location; and (3) that the original grantee, Curtiss, abandoned his claim to an easement and the defendant Lippincott cannot revive and assert the same.\\nAs to the first contention, plaintiffs are mistaken in their assertion there can be no easement by implication in New Mexico unless the same is \\\"by necessity.\\\"' They rely principally on the case of Michelet v. Cole, 20 N.M. 357, 149 P. 310, 311. That case involved an easement claimed to pass as an appurtenant to the property conveyed under a clause in the deed following the description, reading: \\\"together with all and singular the hereditaments and appurtenances thereto belonging.\\\" . Our court declared the grantee held no easement, in the. way contended for, on that basis, stating:\\n\\\"The general rule is, to which we know of no exception, that no right in a way, which has been used during the unity of possession, will pass upon the severance of the tenements, unless proper terms are employed in the conveyance to show an intention to create the right de novo. (Citing cases.)\\\"\\nWe did not have there before us the contention here made that an easement arises by implication from a deed describing the property conveyed as bounded by a way. As stated in 17 Am.Jur., Easements, Sec. 34, p. 948, and approved by this court in Venegas v. Luby, 49 N.M. 381, 164 P.2d 584, various elements are essential to create an easement by implication upon the severance of the unity of ownership in an estate. And it is true that among these elements is the requirement that the easement be reasonably necessary to the enjoyment of 'the dominant portion of the property. ' However, easements may be raised by ways other than by passing as an appurtenant upon the severance of unity of ownership. -As stated in a recent Ohio case, Trattar v. Rausch, 154 Ohio St. 286, 95 N.E.2d 685, 689:\\n\\\"Easements may be implied in several ways \\u2014 from an existing use at the time of the severance of ownership in land, from a conveyance describing the premises as bounded upon a way, from a conveyance with reference to a plat or map or from necessity alone, as in the case of ways of necessity. (Citing authority.)\\\"\\nDifferent considerations are involved in the determination of easements arising in these differing ways. With the nature of the easement here contended for, necessity or the lack of it has no bearing. 28 C.J.S., Easements, \\u00a7 40, Page 704 et seq.; Anno: 122 Am.St.Rep. 216; New England Structural Co. v. Everett Distilling Co., 189 Mass. 145, 75 N.E. 85; Hill v. Taylor, 296 Mass. 107, 4 N.E.2d 1008; McPherson v. Monegan, 120 Mont. 454, 187 P.2d 542; Casella v. Sneirson, 325 Mass. 85, 89 N.E. 2d 8.\\nPlaintiffs quote from Burling v. Leiter, 272 Mich. 448, 262 N.W. 388, 100 A.L.R. 1312, to. support their claim easements are to be implied only in cases of necessity to prevent the fettering of estates; however, this case likewise involved an easement claimed to arise from an existing use at the time of severance, and the statements therein contained, as well as those in Michelet v. Cole, supra, have no application to the present determination.\\nWe now come to those matters raised under the second general contention of plaintiffs that any easement in the private way known as Plaza Balentin was excluded from the terms of the conveyance.\\nIt is the general rule and the rule followed in this state that where the-description of property conveyed calls for a road or way as a boundary and the grantor owns the fee in said way, an easement in' the way passes to the grantee and his heirs and assigns by implication of law. In Nickson v. Garry, 51 N.M. 100, 179 P.2d 524, 526, the authorities are collected and analyzed after this general assertion by our court:\\n\\\"If land is purchased under an agreement and representation that it would abut upon a street or alley, existing or to exist by the terms of the deed, and the grantor owns the land to be so used; the grantor and his heirs are estopped to deny the existence of the alley; and the purchaser acquires a right of way over the land in question.\\\"\\nIn the Nickson case a controversy arose over the ownership of a narrow strip of land being the south 15 feet of a lot in Roswell, New Mexico. The grantor conveyed away the north 35 feet of the lot in a deed containing the\\u2022 following language: \\\" and it is hereby understood and agreed that the remaining 15 feet of said lot shall be perpetually reserved for an alley.\\\" The heirs of the grantor contended for ownership of the strip in question, and we held, among other things, that the heirs of the grantor were estopped from claiming that the alley, though not in fact in existence prior to the execution of the deed, was created by the deed itself. We also quoted therein the following language from Hennessey v. Old Colony & N. R. Co., 101 Mass. 540, 100 Am.Dec. 127:\\n\\\" 'The whole extent of the doctrine is, that a grantor of land, describing the same by a boundary on a street or way, if he be the owner of such adjacent land, is estopped from setting up any claim, or doing any acts, inconsistent with the grantee's use of the street or way.' In one sense the deed operates as a conveyance of a right of way over the street; that is to say, the grantors and all claiming under them are estopped to deny the existence of the street, or do any act inconsistent with the plaintiff's use of it as such.\\\"\\nSee also, 17 Am.Jur., Easements, Sec. 46, p. 957; 14 Am.Jur., Covenants, Sec. 17, p. 494 ; 28 C.J.S., Easements, \\u00a7 40, page 704; 122 Am.St.Rep. 216 and Vol. 2 Thompson, Real, Property, Sec. 470 et seq.\\nPlaintiffs assert the deed in question does not \\\"bound the property by a way,\\\" but merely mentions .the way for purposes of description or location without any intention of making it the actual boundary of the land. It is generally stated in the .authorities cited last above that no easement is acquired by the grantee in such cases. We are referred by the plaintiffs to three cases in support of his contention: Lankin v. Terwilliger, 22 Or. 97, 102, 29 P. 268; Brizzalaro v. Senour, 82 Ky. 353; and Talbert v. Mason, 136 Iowa 373, 113 N.W. 918, 14 L.R.A.,N.S., 878.\\nIn the case of Brizzalaro v. Senour, the original owner executed a conveyance to a lot of ground defined by metes and bounds and designating one of the lines in the following manner: \\\"Thence northwardly with the east line of said bridge company sixty-five feet to a ten-foot alley (which extends from the east line of the said bridge property to Greenup street, running parallel with said Second street), thence eastwardly, The weight of the testimony was no such alley had been laid out in fact or on any map or survey by the grantor. The court recognized the grantor and his privies would be bound by estoppel but ruled a subsequent purchaser from the grantor would not be estopped on the basis that a mere recital in' the deed, although capable of work Ing an estoppel against the grantor, can neither vest or divest title.\\nIn Talbert v. Mason, supra, the exception to the general rule is recognized but the facts of that case did not place the conveyance within the exception.\\nOnly in the case of Lankin v. Terwilliger, supra [22 Or. 102, 29 P. 269] is the exception actually applied.. The description there involved read, in part, as follows:\\n\\\" commencing at a point on the west side of the county road at the south-east corner of a piece of land known as the 'Old Cemetery/ S chains south of the claim line between Terwilliger and Carruthers; thence with the meander of said road as follows: (describing by courses and distances.)\\\"\\nThe gist of the court's decision is contained in the following statement:\\n\\\"The starting point of the description is at a point on the west side of the county road at the south-east corner of a piece of land known as the 'Old Cemetery/ five chains south of the claim line. This corner of the cemetery lot is the controlling monument in the description, and is definite and certain without reference to the county road. In fact, if this corner is on the east side of the road instead of the west side, it would still be a controlling monument. The only reference to the road in the deed is for the purpose of description, as any other mark or monument might have been referred to, and with no intention of making it the actual boundary of the land, unless it should be coincident with the description as given in the deed. Such a description of the granted premises does not convey an easement in an adjoining highway. Merely referring to a highway for the purpose of description, as any other mark or monument, is very different from bounding the granted premises by a highway over the other lands of the grantor, and thereby exposing himself to the equities of an estoppel.\\\"\\nIn our opinion the present description does not fall within the rule stated in Lankin v. Terwilliger, supra. And furthermore, that portion of the description defining the property conveyed by courses and distances is, alone, sufficient on which to base the implication of an easement in the grantee in the private way known as Plaza Balentin. For convenience we again set out the pertinent part of that portion of the description:\\n\\\" thence S. 32\\u00b0 02' E. 16.7 feet to an iron pipe on the West side of Plaza Balentin; thence S. 08\\u00b0 38' W. along the West side of Plaza Bal entin 107.75 feet to the Southeast corner, (Emphasis supplied.)\\nIn American Steel Foundries v. Sibley Soap Co:, 3 Cir., 270 F. 70, 71, the common grantor first conveyed to the soap company a lot of ground:\\n\\\"Beginning at a point south 85 degrees 10 minutes and 50 seconds east, 25 feet from the northeast corner of land bargained to be sold by Daniel Grimm to the Franklin Steel Casting Company, the said point being the east side of a 40-foot street as agreed upon by said company with said Grimm; thence south 86 degrees 15 minutes 10 seconds west 73.9- feet, to the east line of said 40-foot street; and thence by the east line of said 40-foot street,\\nThis deed was duly recorded and thereafter the grantor conveyed to the predecessor in title of the steel foundry all his interest and title to a 20-foot strip which abutted the western line of the soap company's lot. In an action by the soap company to restrain the steel foundry from erecting buildings on this 20-foot strip, the soap company prevailed, the court stating:\\n\\\"The question involved is one of title and easements vested under certain deeds from a common grantor to both parties, and the determination of that question turns on the application to -those deeds of the decisions of the Supreme Court of Pennsylvania. Stated in general terms, the law of Pennsylvania is that, where an owner of lands grants a part of it, and designates as a boundary of the part sold a street on the part of the land which he retains; a right of way or easement to such street or way passes to the grantee by operation of law and the grantor cannot thereafter be heard to say no such street exists.\\n!|! *\\n\\\"This description located the western line of the lot sold as abutting on the east line of the 40-foot street. This deed the purchaser recorded on December 22, 1897. Under the then adjudged law of Pennsylvania, the grantees of said lot acquired thereby an easement or right of way of which the grantor could not, and did not, deprive them, when by his deed of November, 1900, he conveyed to the predecessor in title of the American Steel Foundaries all his interest and title to a 20-foot strip of land which abutted the western line of the soap company's lot,\\nThe similarity between the description involved in the American Steel Foundries case and the present one is apparent.\\nThe most recent case discovered in point is that of Casella v. Sneirson, 325 Mass. 85, 89 N.E.2d 8, 9, decided December, 1949. There an easement over a way between properties abutting on the way was in dispute. At one time the entire property was held by a common grantor. In 1922 the plaintiff's lot was conveyed to one, Durkiwicz, by a deed referring to the property as \\\"land in Waltham situated on the easterly side of Wall Street, a private way.\\\" The pertinent part of the description in that deed is quoted in the opinion as:\\n\\\"Beginning at the southwesterly corner of the granted premises at a point in the easterly line of said Wall Street at land of Hughes; thence running northerly on the easterly line of said Wall Street one hundred eight (108) feet more or less to a point\\nSubsequently Durkiwicz conveyed to the plaintiff employing the same description. Many years later the common grantor conveyed the remaining property held by him to the defendant's predecessors and the defendants later proposed to erect a garage on the property. It appeared that Wall Street had never been opened between the two properties, and the proposed garage would have interfered with plaintiff's right of way over what would have been a continuation of Wall Street. The ruling of the trial court that no easement was created in this portion of the property was reversed. The court stated, significantly, as follows:\\n\\\"Although there is some authority to the contrary, see McKenzie v. Gleason, 184 Mass. 452, 458-459, 69 N.E. 1076, 100 Am.St.Rep. 566; Wood v. Culhane, 265 Mass. 555, 558-559, 164 N.E. 622, we think it must be regarded as settled in this Commonwealth that a description which bounds property by the side line of a way is no less effective to give the grantee an easement in the way than a description which bounds the property by or on a way. Gaw v. Hughes, 111 Mass. 296; Cole v. Hadley, 162 Mass. 579, 39 N.E. 279; Driscoll v. Smith, 184 Mass. 221, 68 N.E. 210; Hill v. Taylor, 296 Mass. 107, 116, 4 N.E.2d 1008. we think that the judge erred in holding that the deed under which the plaintiff claims gave her no easement over Wall Street as continued beyond the point where it joins her lot and that of the defendants. To be sure, Wall Street along the plaintiff's westerly boundary had not been laid out at the time of the conveyance to Burkiwicz; nor was it shown on any plan referred to in his deed. But it was sufficiently designated by the reference in the deed so that the grantor and those claiming under him would be estopped to deny its existence,\\nSee also Malone v. Jones, 211 Ala, 461, 100 So. 831; and McPherson v. Monegan, 120 Mont. 454, 187 P.2d 542.\\nIn our opinion the deed in the present case clearly described the defendant's prop erty as bounded on the east by the private way, Plaza Balentin, in employing these terms: \\\" thence ' S. 32\\u00b0 02' E. 16.7 feet to an iron pipe on the West side of Plaza Balentin; thence S. 08\\u00b0 38' W. along the West side of Plaza Balentin 107.75 feet to the'. Southeast corner, \\u00bb'\\nBecause the precise description by courses and distances expresses the intention of the grantors to bound the premises hy the way, there is no 'conflict between it and the general description by metes and bounds appearing immediately after the description by courses and distances, in these words: \\\"Bounded North by property of Mrs. K. M. Chapman; East by Plaza Balentin; South by Acequia Madre and West by Jack Davis and J. A. Lowe.\\\" (Emphasis supplied.) It is, therefore, our view, and we so hold, when the two nonconflicting modes of description are read together the deed comes without question under the general rule as stated above and an easement of passage over the way vested in the defendant; and none other than an innocent purchaser for value without notice of the existing easement could divest the defendant's rights in the way. In the record before us plaintiffs have not brought themselves within that category. The trial court found the deed from the common grantors, Kenneth M. Chapman and Kate M. Chapman, was dated October 1st, 1941, and duly recorded in the office of the County Clerk of Santa Fe County. The deed bears the certification of the County Clerk that it was recorded October 24, 1941. The deed from the Chapmans to the plaintiffs was not executed until December 11, 1945. Nor are any other circumstances presented to defeat the easement of the defendant in the private way.\\nPlaintiffs contend lastly that the defendant or her predecessor has abandoned any right existing in the way, but it is our view the weight of the testimony supports the finding of the trial court otherwise. All other contentions by plaintiffs have either been abandoned or are deemed without merit.\\nThe judgment will be affirmed.\\nIt is so ordered.\\nLUJAN, C. J., and SADLER, COMPTON, and COORS, JJ., concur.\"}"

nm/1586422.json

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+"{\"id\": \"1586422\", \"name\": \"The FIRST NATIONAL BANK OF SANTA FE, Plaintiff-Appellant and Cross-Appellee, v. SOUTHWEST YACHT & MARINE SUPPLY CORP., et al., Defendants-Appellees and Cross-Appellants\", \"name_abbreviation\": \"First National Bank v. Southwest Yacht & Marine Supply Corp.\", \"decision_date\": \"1984-07-23\", \"docket_number\": \"Nos. 14961, 14974\", \"first_page\": \"431\", \"last_page\": 438, \"citations\": \"101 N.M. 431\", \"volume\": \"101\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T02:27:15.815755+00:00\", \"provenance\": \"CAP\", \"judges\": \"SOSA, Senior Justice, and RIORDAN and WALTERS, JJ., concur.\", \"parties\": \"The FIRST NATIONAL BANK OF SANTA FE, Plaintiff-Appellant and Cross-Appellee, v. SOUTHWEST YACHT & MARINE SUPPLY CORP., et al., Defendants-Appellees and Cross-Appellants.\", \"head_matter\": \"684 P.2d 517\\nThe FIRST NATIONAL BANK OF SANTA FE, Plaintiff-Appellant and Cross-Appellee, v. SOUTHWEST YACHT & MARINE SUPPLY CORP., et al., Defendants-Appellees and Cross-Appellants.\\nNos. 14961, 14974.\\nSupreme Court of New Mexico.\\nJuly 23, 1984.\\nShaffer, Butt, Thornton & Baehr, Norman L. Gagne, Rodney L. Schlagel, Albuquerque, White, Koch, Kelly & McCarthy, Benjamin Phillips, Santa Fe, for plaintiff-appellant and cross-appellee.\\nFairfield, Farrow, Hunt, Reecer & Strotz, P.C., John Farrow, Albuquerque, for defendants-appellees and cross-appellants.\", \"word_count\": \"3426\", \"char_count\": \"20756\", \"text\": \"OPINION\\nFEDERICI, Chief Justice.\\nThe opinion of this Court heretofore filed on February 20, 1984 is withdrawn and the following opinion is substituted therefor.\\nThe First National Bank of Santa Fe (Bank) brought this action in the District Court of Santa Fe County to collect amounts due pursuant to a promissory note and to replevy goods pledged as security for the payment of the promissory note. Southwest Yacht & Marine Supply Corporation (Southwest) filed a motion to dissolve the writ of replevin and an answer and counterclaim for damages for a wrongful replevin. The trial court found that the facts stated in the affidavit in replevin did not comply with the requirements of the New Mexico statutes and dissolved the writ of replevin.\\nThe Bank filed an amended affidavit in replevin to correct the defects in the original affidavit. The Bank then filed a motion for partial summary judgment on two grounds: first, that the filing of the amended affidavit cured the defects in the original affidavit in replevin; and second, that the Bank was not liable to Southwest in damages for wrongful replevin because Southwest's exclusive remedy for wrongful replevin was through NMSA 1978, Section 42-8-11. The trial court held that the amended affidavit in replevin did not relate back to cure the defects in the affidavit in replevin and denied that portion of the motion for partial summary judgment. The trial court granted the remaining portion of the motion for partial summary judgment. We reverse.\\nWe initially consider the constitutionality of New Mexico's replevin statute, NMSA 1978, Sections 42-8-1 to 22. New Mexico's present replevin statute reflects amendments adopted by the New Mexico State Legislature in 1975. 1975 N.M.Laws, ch. 249, \\u00a7 1 to 10. This Court had previously held that the law as it existed prior to these amendments, NMSA 1953, Sections 36-13-1 to 6 (Supp.1971), was unconstitutional. Montoya v. Blackhurst, 84 N.M. 91, 500 P.2d 176 (1972); Accord Sena v. Montoya, 346 F.Supp. 5 (D.N.M.1972). Our decision in Montoya v. Blackhurst was based on the United States Supreme Court's decision in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). In that case, replevin statutes which were substantially similar to New Mexico's were held to be unconstitutional insofar as they did not provide an opportunity for the party in possession of the chattels to be heard prior to the repossession. The Court stated that its holding was a narrow one, and it recognized the power of a state to seize goods before final judgment in certain circumstances. Id. at 96, 92 S.Ct. at 2002. Subse quent to its opinion in Fuentes, the United States Supreme Court in Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), established the minimum due process requirements that a replevin statute must meet in order to be constitutional. These requirements were set out by the Supreme Court of Florida as follows:\\n(1) the law requires plaintiffs to show facts indicating a right to the property sought to be replevied, and the allegations must be verified;\\n(2) an application for replevin without notice must be presented to a judge, as opposed to a ministerial court official;\\n(3) the facts alleged must show the necessity for replevin, which is sufficiently shown if the debtor is in possession of the property and the applicant establishes that there is a possibility of waste, concealment or transfer of the property, or that the debtor is in default on his payments;\\n(4) the plaintiff must post a bond to protect the debtor from mistaken repossession; and\\n(5) the debtor must be entitled to an immediate hearing on the issue of possession.\\nGazil, Inc. v. Super Food Services, Inc., 356 So.2d 312 (Fla.1978).\\nThe 1975 amendments to the New Mexico replevin statute incorporated into the statute the requirements articulated by the United States Supreme Court in Mitchell. New Mexico's replevin statute now complies with the Mitchell standards, and is therefore constitutional.\\nAny replevin action initiated pursuant to New Mexico's statute must comply strictly with the statutory requirements in order not to violate a defendant's due process rights. Cf. Lowery v. Garfield County, 122 Mont. 571, 208 P.2d 478 (1949). Before a writ of replevin is issued, an affidavit must be filed in district court stating, among other things, that the plaintiff has reason to believe that during the pendency of the action the defendant may conceal, dispose of, or waste the property or the revenues therefrom or remove the property from the jurisdiction. NMSA 1978, \\u00a7 42-8-5(C). The affidavit must also state specific facts from which it clearly appears that the allegations are justified. NMSA 1978, \\u00a7 42-8-5(E).\\nIn this case, the original affidavit did not comply with the above requirements, and therefore the trial court correctly quashed the writ of replevin it had previously entered. The trial court did, however, grant the Bank leave to amend its affidavit. Such amendments are allowed by statute: \\\"[W]here an original writ of replevin has been quashed for defect in the affidavit the court shall allow an amendment thereof to cure the defect, under such circumstances as amendments of ordinary pleadings are allowed by law and with like effect \\\" NMSA 1978, \\u00a7 42-9-14. The issue presented is whether the amendment of an affidavit in replevin relates back to the date of the original affidavit. We hold that it does.\\nOur rules provide that \\\"[wjhenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.\\\" NMSA 1978, Civ.P.R. 15 (Repl.Pamp.1980). Amendments to pleadings are favored, and should be liberally permitted in the furtherance of justice. Martinez v. Research Park, Inc., 75 N.M. 672, 410 P.2d 200 (1965). This liberality extends to replevin actions. Vigil v. Johnson, 60 N.M. 273, 291 P.2d 312 (1955). Applying the cited statutes and case law to the facts in the present case, we find that the amended affidavit did relate back to the time of the filing of the original affidavit in replevin. We therefore reverse the trial court on this issue.\\nOn cross appeal, Southwest contends that the trial court erred in limiting damages recoverable for wrongful replevin to those set forth in NMSA 1978, Section 42-8-11. We agree. Southwest's counterclaim raised claims of conversion, fraud, wrongful acceleration of a promissory note, breach of contract, negligence and negligent misrepresentation in addition to the wrongful replevin claim. All of these theories rely on the operative facts of the wrongful seizure of Southwest's property pursuant to the wrongfully issued writ of replevin. Southwest's remedies for wrongful replevin are limited by the replevin statute. The replevin statute does not, however, preclude other causes of action Southwest may have which arose independent of any wrongful replevin.\\nTwo sections of New Mexico's replevin statute provide remedies for situations in which a wrongful replevin has occurred. Should the plaintiff in a replevin action fail to prosecute his suit with effect and without delay, the defendant may recover either the property taken, or its assessed value, and double damages for the use of the property from the time of its taking. NMSA 1978, \\u00a7 42-8-11. This section found its origin in the Code of Civil Procedure passed in 1847, appeared in the 1897 compilation of the laws of New Mexico, NMCL 1897, Section 2749, and has not since been amended.\\nA second remedy was added by the Legislature when it amended the replevin statute in order to meet constitutional due process requirements. 1975 NM Laws, ch. 249, \\u00a7 7. The added section provides, in part:\\nUpon the defendant's motion before trial, the district court shall determine the truth of the facts stated in the plaintiff's affidavit at a hearing, to be held without delay. If the plaintiff fails to prove the truth of the facts stated, the writ shall be dissolved, the plaintiff shall be ordered to return the property to the defendant and an order shall be entered for the defendant against the plaintiff and his sureties for the attorney's fees incurred in the dissolution of the writ and for double damages for the use of the property from the time of its delivery to the plaintiff.\\nNMSA 1978, \\u00a7 42-8-19(A).\\nThe Bank contends that these two sections are mutually exclusive; that once Southwest chose not to accept the Bank's offer to return the wrongfully replevied property it limited its remedies to those available under Section 42-8-11. We disagree. Southwest is not limited to remedies found in only one section of the replevin statute. The two sections address two separate wrongs.\\nSection 42-8-19 addresses the specific failure of the plaintiff to prove the truth of the facts stated in his affidavit. The statute was enacted to avoid due process problems that arise when property is taken in an ex parte action based on an insufficient or unsubstantiated affidavit. The statute requires the district court to order the plaintiff to return the property to the defendant. The defendant is not obligated to accept the tender, and failure to so accept does not prevent the defendant from recovering attorney fees incurred in the dissolution of the writ. NMSA 1978, \\u00a7 42-8-19. By failing to accept the tender, however, the defendant limits the damages recoverable to those suffered during the period from the wrongful taking to the date of the tender.\\nSection 42-8-11, on the other hand, was the original remedy provided by the Legislature. It allows the defendant to recover judgment in case the plaintiff fails to prosecute his suit with success and without unreasonable or unnecessary delay. Riggs v. Gardikas, 78 N.M. 5, 427 P.2d 890 (1967). The statute is merely directory, and the defendant must show injury in order to recover under this statute. Vigil v. Johnson, 60 N.M. 273, 291 P.2d 312 (1955).\\nIn construing a statute, the overriding concern of the Court is to ascertain and give effect to the intention of the Legislature. Arnold v. State, 94 N.M. 381, 610 P.2d 1210 (1980). In determining legislative intent, the Court will look primarily to the language used, yet may also consider the history and background of the statute in question. Methola v. County of Eddy, 95 N.M. 329, 622 P.2d 234 (1980). Under the language of the statutes, it is clear that the remedies provided are not mutually exclusive. Additionally, the history of Section 42-8-19 indicates that it was enacted to prevent a defendant from being forced to pay his own attorney fees to quash a writ issued based on a defective affidavit. Such payment of fees would subvert the due process requirements established in Mitchell v. W.T. Grant Co. Finally, statutes which relate to the same subject matter should, if possible, be construed to give effect to every provision of each. State ex rel. State Park and Recreation Commission v. New Mexico State Authority, 76 N.M. 1, 411 P.2d 984 (1966).\\nPursuant to Section 42-8-19, Southwest may only recover reasonable attorney fees which it may have incurred in the dissolution of the wrongfully issued writ of replevin. No attorney fees are recoverable for otherwise defending the replevin action. Riggs v. Gardikas, 78 N.M. 5, 427 P.2d 890 (1967).\\nThe final issue we address is what damages Southwest may recover under the statutory remedy of double damages for use of the property from the time of delivery to the plaintiff. In Giannini v. Wilson, 43 N.M. 460, 95 P.2d 209 (1939), the plaintiff brought a premature suit in replevin for the defendant's automobile and judgment was entered for the defendant on his cross-complaint for wrongful replevin. We recognized that the defendant's remedies were limited by the replevin statute:\\nWhether the replevin was simply a mistake of fact upon the part of the appellant or was in bad faith as found by the lower court is immaterial. The statute settles the matter for us. The measure of damages in this case as fixed by the statute is the amount of injury inflicted upon the appellee by the wrongful replevin appellant sued out against the appellee.\\nId. at 468, 95 P.2d at 213. We went on to say that the statute allows for a flexible determination of defendant's damages:\\nWhen the appellant failed in his replevin suit, he was a tortious invader of the property rights of the appellee, with double damages imposed upon him by statute. The measure of damage is the amount which will compensate for all of the detriment proximately caused by the wrongful replevy, and then doubled as provided by statute.\\nId. at 469, 95 P.2d at 214. However, after stating this rather broad definition of damages recoverable under the statute, the Court limited the amount which the defendant could recover to the reasonable rental value of the automobile.\\nIn this case the measure of damages recoverable by Southwest for the Bank's wrongful replevin is double damages for the use (or reasonable rental value) of the property wrongfully replevied, for the period of time from its wrongful taking to its tendered return.\\nAdditionally, if Southwest has any claims sounding in tort or contract which are based on action taken by the Bank independent of and apart from the replevying of Southwest's inventory, these claims are not barred by the replevin statute, and therefore summary judgment on this issue was improper.\\nThe cause is remanded to the trial court for further proceedings in accordance with this opinion.\\nIT IS SO ORDERED.\\nSOSA, Senior Justice, and RIORDAN and WALTERS, JJ., concur.\\nSTOWERS, J., dissents.\"}"

nm/1586469.json

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+"{\"id\": \"1586469\", \"name\": \"STATE of New Mexico, Plaintiff-Appellee, v. Ada Sheldon GRISCOM, Defendant-Appellant\", \"name_abbreviation\": \"State v. Griscom\", \"decision_date\": \"1984-06-05\", \"docket_number\": \"No. 7539\", \"first_page\": \"377\", \"last_page\": 380, \"citations\": \"101 N.M. 377\", \"volume\": \"101\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T02:27:15.815755+00:00\", \"provenance\": \"CAP\", \"judges\": \"WOOD and HENDLEY, JJ\\u201e concur.\", \"parties\": \"STATE of New Mexico, Plaintiff-Appellee, v. Ada Sheldon GRISCOM, Defendant-Appellant.\", \"head_matter\": \"683 P.2d 59\\nSTATE of New Mexico, Plaintiff-Appellee, v. Ada Sheldon GRISCOM, Defendant-Appellant.\\nNo. 7539.\\nCourt of Appeals of New Mexico.\\nJune 5, 1984.\\nCertiorari Denied June 20, 1984.\\nJanet Clow, Chief Public Defender, Katherine Pettit, Asst. Appellate Defender, Santa Fe, for defendant-appellant.\\nPaul G. Bardacke, Atty. Gen., Elizabeth Major, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.\", \"word_count\": \"1405\", \"char_count\": \"8624\", \"text\": \"OPINION\\nBIVINS, Judge.\\nConvicted of eight counts of fraud in violation of NMSA 1978, \\u00a7 30-16-6 (Cum. Supp.1983), defendant appeals raising two issues: (1) whether the trial court erred in refusing her requested instruction on mistake of fact; and (2) whether the trial court erred in admitting hearsay evidence under the business records exception. We affirm.\\nThe transactions which gave rise to these charges occurred over a three-month period, starting in November, 1982. Defendant arrived in Albuquerque at that time after \\\"hocking\\\" her jewelry. She had previously called her sister-in-law in Albuquerque from Texas asking for money so that she could come to New Mexico and enter a hospital.\\nAfter the sister-in-law returned from a trip during the Thanksgiving holidays, she learned that defendant had leased an expensive home with an option to purchase. She had also purchased a Cadillac and leased office space from the same people who sold her the house.\\nDefendant told her sister-in-law, the people who leased the house and office and sold her their car, and other creditors that she was the trust officer for the Saudi Arabia Bank of Belgium (SABB), which was owned by the royal family of Saudi Arabia, and that she had been directed to establish an office in the United States to place loans. Defendant claimed to work directly under Joseph Ayoub, a Lebanese, who during the course of the transactions in question was allegedly hiding, engaged in peace talks or under house arrest.\\nA flurry of activity followed defendant's representations. She purchased furniture, waterbeds, video equipment, a water filter system and other items for the house, and installed furniture, office equipment, a phone system and a telex with direct lines to Belgium and Saudi Arabia for the office. She also engaged an interior decorator to assist her.\\nFor the goods and services acquired, defendant gave drafts on SABB or promises of payment in the future. The drafts were written on sight drafts or blank checks she purchased from an office supply store. A construction worker who at the time was selling meat door-to-door was engaged by defendant as SABB's on-site inspector for developments that would be financed by SABB. He was never paid.\\nIn making her representations, defendant spoke of having a country estate in England, a flat in Paris, and numerous cars, including a Maserati. She described the SABB offices in Belgium in detail.\\nThe State's theory was that all of these trappings were part of the web defendant was spinning to lure prospective borrowers to pay an advance fee for non-existent loans. It all came to an end when the drafts were returned unpaid and the creditors became suspicious. In February, with creditors in the outer office, defendant met with and obtained from some California businessmen a check for $150,000 representing an advance fee for a loan. She displayed the check to the creditors. The people who leased defendant their house and office space attempted to negotiate that check. It never cleared. Criminal charges followed.\\n1. Mistake of fact instruction\\nDefendant tendered the following instruction:\\nEvidence has been presented that Ada Griscom believed that SABB existed and she could draw upon funds in SABB. If Ada Griscom acted (or omitted to act) under an honest and reasonable believe [sic] in the existence of those facts, you must find her not guilty____\\nNMSA 1978, UJI Crim. 41.15 (Repl.Pamp. 1982).\\nDefendant contends the refusal to give this instruction constituted reversible error because intent is an essential element of fraud and because evidence supports her theory that she acted on the honest belief that the SABB existed and that she was authorized to draw funds from an account at that bank.\\nIn support of the instruction defendant relies on two lines of evidence. First, she refers to the fact that she consistently represented herself as a trust officer of SABB, and appeared concerned, as testified to by others, when the drafts failed to clear. She also cites the testimony of the interior decorator that defendant appeared excited when it seemed that a loan had been made to a California company and that she would be receiving funds to pay her bills. Defendant implies that these and other facts prove her story was consistent.\\nSecond, defendant points to testimony by a Colorado lawyer that defendant helped set up a meeting between the lawyer and Joseph Ayoub in Brussels. This lawyer said he met Joseph Ayoub and saw papers which mentioned the name \\\"SABB\\\".\\nIntent is an essential element of fraud which may be established by inference from the evidence and surrounding circumstances. State v. Martinez, 95 N.M. 795, 626 P.2d 1292 (Ct.App.1979). In each of the elements instructions, covering the eight separate counts of fraud, the trial court instructed the jury that the State had to prove, inter alia, that \\\"defendant, by any words or conduct, made a promise she had no intention of keeping .\\\" (emphasis added). In six of those instructions we find the additional language \\\"intending to deceive or cheat\\\".\\nThus, all the tendered instruction does is restate in a slightly different manner what has already been covered by other instructions. \\\"Ordinarily, a defendant is not entitled to a specific instruction where the jury has already been adequately instructed upon the matter by other instructions.\\\" State v. Venegas, 96 N.M. 61, 628 P.2d 306 (1981) (citation omitted). Our reading of Venegas leads us to conclude that whenever an intent instruction involving the defendant's mental state is given, the mistake of fact concept is automatically included and does not merit a separate instruction. Without deciding whether the evidence defendant presented supports her asserted defense, we hold that the instructions given adequately covered any mistake of fact claim.\\nThe trial court did not err in refusing to give defendant's tendered instruction on mistake of fact.\\n2. Business records\\nDefendant contends that the trial court erred in admitting into evidence State's Exhibits 40 and 41: telex communications between a Denver bank and a Brussels bank regarding collection on a draft drawn on the Saudi Arabia Bank of Belgium signed by defendant and made payable to a third party. The Belgian bank informed the Denver bank that \\\"Bank of Belgium totally unknown in Belgium we have checked private address appearing on check maker unknow [sic]. We also confirm drawer entertains no account in our bank.\\\" Ms. Stevens, a representative of the Denver bank through whom these exhibits were offered, testified on tender, that these communications were not actually made in the ordinary course of business at the time the check in question was returned but that they should have been, since the reason for the return was not clear. She made the inquiry sometime later at the request of the prosecutor in the present case, but said she made the follow-up inquiry in the course of the Denver bank's business in order to protect that bank.\\nDefendant complains that these records should not have been admitted under the NMSA 1978, Evid.R. 803(6) (Repl.Pamp. 1983) exception to the hearsay rule because the messages were not sent out at or near the time of the bank's attempt to collect on the draft nor were they a part of the bank's regularly conducted business activity-\\n15] Assuming, without deciding, that the messages did not fall within the business records exception, any error in admitting them was harmless. State v. Martinez, 99 N.M. 48, 653 P.2d 879 (Ct.App.1982). There was other testimony, without the message, to establish that SABB did not exist at the address shown on the checks and was unknown in Belgium. The Belgian police officer testified as to his own investigation. Defendant did not cross-examine. Ms. Stevens could find no such bank in the reference book she examined. Moreover, defendant never really challenged this evidence. She argued that SABB existed on paper but that Joseph Ayoub never got it off the ground. Thus, we hold that in light of this cumulative and unchallenged evidence, defendant was not harmed by the admission of the two exhibits.\\nWe affirm the judgment and sentence.\\nIT IS SO ORDERED.\\nWOOD and HENDLEY, JJ\\\" concur.\"}"

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+"{\"id\": \"1586546\", \"name\": \"CONTINENTAL OIL CO. v. CITY OF SANTA FE (two cases)\", \"name_abbreviation\": \"Continental Oil Co. v. City of Santa Fe\", \"decision_date\": \"1932-10-14\", \"docket_number\": \"Nos. 3796, 3800\", \"first_page\": \"343\", \"last_page\": 350, \"citations\": \"36 N.M. 343\", \"volume\": \"36\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T19:40:57.607902+00:00\", \"provenance\": \"CAP\", \"judges\": \"BICKLEY, C. J., and SADLER and HUDS-PETH, JJ., concur. \\u25a0\", \"parties\": \"CONTINENTAL OIL CO. v. CITY OF SANTA FE (two cases).\", \"head_matter\": \"15 P.(2d) 667\\nCONTINENTAL OIL CO. v. CITY OF SANTA FE (two cases).\\nNos. 3796, 3800.\\nSupreme Court of New Mexico.\\nOct. 14, 1932.\\nE. R. Wright and Donovan N. Hoover, both of Santa Fe, for Continental Oil Co.\\nM. W. Hamilton and Charles Fahy, both of Santa Fe, for City of Santa Fe.\", \"word_count\": \"3097\", \"char_count\": \"18207\", \"text\": \"WATSON, J.\\nChapter 159, Laws 1931, attempts to authorize a municipal excise on sales of gasoline, not to exceed one cent per gallon. Its text will be essential to an understanding of the controverted questions, and of our conclusion as to its meaning. Inserting it here, we omit section 2, which merely defines terms.\\n\\\"An Act Relating to the Assessments and Collection of License Tax Upon Gasoline and Oils Sold Within Municipalities.\\n\\\"Section 1. That the governing bodies of certain towns and villages, whether incorporated under general or special act, shall have the power to fix and have collected a license tax upon gasoline and motor fuel sold within the limits of such municipalities and shall have the power to fix the amount of the license tax to be paid thereon; Provided, that no such license tax shall exceed the sum of one cent per gallon upon such gasoline and motor fuel sold within such municipality.\\n\\\"Sec. 3. That where gasoline or motor fuel is sold by a distributor of gasoline to a retail dealer in gasoline and subsequently sold by the retail dealer in gasoline to the consumer, the sale by the distributor of gasoline shall be construed as the taxable sale for purposes of this act. Provided, how.ever, that where the sale from the distributor of gasoline to the retail dealer in gasoline takes place outside the limits of any incorporated city, town or village and the sale from the retail dealer in gasoline to the consumer takes place within the limits of any municipality, the sale by the retail dealer within the limits of such municipality shall be construed as the taxable sale for the purposes of this act and such sale by the distributor of gasoline shall not be taxed by the county in which the sale is made.\\n\\\"Provided, further, that where the sale from the distributor of gasoline to the retail dealer in gasoline takes place within .the limits of any municipality and the sale from the retail dealer in gasoline to the consumer takes place outside the limits of such municipality, the sale by the retail dealer outside the limits of such municipality shall be construed as the taxable sale for the purposes of this act and such sale by the distributor of gasoline shall not be taxed by the municipality within which the same is made.\\n\\\"Sec. 4. That the adoption and publication of an ordinance in the manner provided by law providing for such license tax shall be sufficient to put the same into effect in any municipality.\\n\\\"Sec. 5. That the legislative and governing bodies of municipalities shall have the power to provide for the payment of such license tax within their respective jurisdictions, monthly, quarterly and semi-annually, as they deem proper and shall have the power to require the filing of monthly, quarterly and semi-annual or annual reports, by distributors of gasoline and retail dealers in gasoline, showing the quantity of gasoline and motor fuel sold within such jurisdiction during such specified period. Provided, further, that upon request, the State Comptroller, or such other officer or agency as shall be authorized by law to collect the state excise tax upon the sale, of gasoline, shall furnish to any such city, town or village a statement of gasoline and motor fuel sold within the jurisdiction of such city, town or village as disclosed by the records of such officer or agency authorized by law to collect the state excise tax upon the sale of gasoline.\\n\\\"Sec. 6. That all such license taxes so collected within the limits of any -municipality shall be paid into the municipal treasury to be used for general municipal purposes or for any special purpose in the discretion of the governing authorities of the municipality.\\n\\\"Sec. 7. That where any municipality elects to assess the license tax herein provided for, the same shall be in lieu of any other license or occupation tax which said municipality may be authorized to assess and collect against such dealers in gasoline aiffi oils.\\n\\\"Sec. 8. Municipalities shall have the power to provide by ordinance for penalties for the failure to make reports and remittances as provided in this act, or who shall knowingly sell or distribute any gasoline or motor fuel without the tax thereon having been paid, as specified by the ordinance of said city. Any distributor or retail dealer who shall fail to make reports and remittances required under any resolution of the board of county commissioners, under the provisions of this act, or who shall knowingly sell or distribute any gasoline without paying the tax thereon due to such municipality shall, upon conviction, be fined not less that fifty dollars nor more than one thousand dollars for each offense.\\\"\\nUndertaking to exercise this power, the city of Santa Ee passed Ordinance 800, exacting such excise on sales made on and after June 20, 1931. Under protest, plaintiff paid the amount accrued for the remainder of June, and, upon its suit to recover the payment, had judgment. The city's appeal is here docketed as No. 3796.\\nOrdinance 800 was repealed by Ordinance 875, effective January 7, 1932. Under protest, plaintiff paid the sum accruing under this ordinance up to February 1. In its -action to recover this payment, it failed. Its appeal is here docketed as No. 3800.\\nThe two causes have been submitted together. No. 3796 presents one question not common to both. It will be reserved until the last. Continental Oil Company, being plaintiff in both cases, will be so referred to.\\nIts first point is that the enabling statute, chapter 159, supra, does not extend the power to cities, and consequently not to the city of Santa Fe. The contention is based on the language of section 1: \\\"That the governing bodies of certain towns and villages shall have the power. \\\"\\nIf section 1 stood alone, it would be impossible to conclude that cities were affected by it. But it cannot st-and alone. Even towns -and villages could not rely upon it. The power is granted, not to all, but to \\\"certain,\\\" towns and villages. What towns and villages are affected must be determined from the further provisions of the act. Examining them we find, strangely, nothing to define \\\"certain.\\\" Having implied at the outset that some towns and villages only are included, the act proceeds exactly as if all were embraced.\\nHence the statute is ambiguous on its face. It calls for construction. If \\\"certain\\\" remains, it is destructive of the whole act. No municipality can be identified as a repository of the power. Unless the act is to be entirely ineffectual, there are but two alternatives: \\\"Certain\\\" must be discarded as superfluous and meaningless, or it must be determined from the other provisions what special meaning it bears, or what different word was intended.\\nIt is very significant that if the word \\\"cities\\\" be substituted for \\\"certain,\\\" complete harmony will result. The propriety and necessity of this substitution is strongly suggested by the fact that the word \\\"cities\\\" obtrudes into the statute in manner inexplicable unless it was intended to confer this power upon cities. And, more particularly, \\\"cities, towns and villages\\\" occurs more than once as synonymous with \\\"municipalities\\\"; the latter term being used throughout the title and body of the act in describing the recipients of the power.\\nIt may also be noted that the act bears on its face conclusive evidence of haste and carel\\u00e9ssness in framing. The title and section 7 would indicate that oil as well as gasoline was to be taxed. Such purpose, no doubt once entertained, was not carried out. Sections 3 and 8 indicate that it was once proposed to confer the power on counties. Section 8 actually prescribes the penalty for failure to make reports and remittances required by resolution of a board of county commissioners.\\nThe tax may be imposed upon both distributors and retail dealers. Section 5. But as to any particular gasoline, it is evidently not the intent that more than one sale shall be taxable. Section 3. So as counties were to have the same power as \\\"municipalities,\\\" and as the retail sale might take place in a county, and the distributor's sale in a municipality, or vice versa, section 3 specifies which of the sales is to be taxed under given circumstances, and which, county or municipality, is to have the revenue. In this section we find \\\"incorporated city, town or village\\\" used as. synonymous with \\\"municipality.\\\" Here it is entirely plain that taxation by cities was contemplated.\\nSection 5, as well as section 1, directly confers the power. Here the term \\\"municipalities\\\" is used, as in the title and elsewhere. In aid of the power, this section requires the state comptroller to furnish required information to \\\"any such city, town or village,\\\" as to gasoline sold \\\"within the jurisdiction of such city, town or village.\\\" Why was this right of information given to the city of Santa Pe if it is not to be employed in collecting its revenue?\\nSection 4 makes the adoption of an ordinance sufficient to put the tax into effect \\\"in any municipality.\\\" Section 6 implies that the tax may be collected in \\\"any municipality.\\\" Section. 7 implies that \\\"any municipality\\\" may elect to assess it.\\nThese considerations lead us to the conclusion that the troublesome word \\\"certain\\\" appears in section 1 by inadvertence, and in place of the word \\\"cities.\\\" Having thus determined the legislative intent from the face of the statute alone, the question is whether we should effectuate it, or whether, being merely a court and without legislative power, we must see the statute fail.\\nInterpretation of legislative language is the constant business of the courts. It has but one legitimate purpose; to arrive at and effectuate the true intent. This is to be determined, not from any one word or phrase, but from the whole enactment. The courts may not substitute their own wisdom and policy for the Legislature's. But they should not attribute to that co-ordinate branch an utterly unreasonable, inexplicable, and inef fectual intent. This statute is before us as the will of that governmental branch responsible for public policy as to municipal revenues. We should not nullify it for anything less than a real inability to comprehend its meaning.\\nIt being plain that the Legislature did not intend to use the word \\\"certain,\\\" precedent bids us substitute the word it did intend, if it can be unerringly determined.\\nWe have substituted the word \\\"collectible\\\" for the word \\\"uncollectible,\\\" thus imputing and enforcing an intent exactly the opposite of the absurd intent expressed. Baca v. Bernalillo County, 10 N. M. 438, 62 P. 979. We have substituted \\\"they\\\" for \\\"he,\\\" thus giving the provision an entirely different and a reasonable, rather than an unreasonable, meaning. State v. Davidson, 33 N. M. 664, 275 P. 373. For the phrase \\\"for the years 1920 and 1921,\\\" we have substituted \\\"for the fiscal year 1920 and 1921,\\\" and have rejected entirely a provision that certificates of indebtedness were to be issued only \\\"after tax levies are duly made therefor.\\\" State v. Southern Pacific Co., 34 N. M. 306, 281 P. 29, 31. \\\"Additional compensation\\\" has been interpreted as \\\"additional allowance.\\\" Nye v. Board of County Commissioners, 36 N. M. 169, 9 P.(2d) 1023, 1024.\\nThese are examples of exceptional construction which we readily call to mind. The principles of those cases seem applicable and controlling here.\\nPlaintiff urges that this being a tax statute, and also the sole source of a municipal power, the construction must be strict, and that only unequivocal language will confer-the power and support the tax. The canons invoked are familiar and of unquestionable force in proper cases.\\nBut there is present here plenty of unequivocal language signifying the intent. The difficulty arises from the.one word, not so-much equivocal or ambiguous, as plainly out of place and unintended. If that word were really equivocal, leaving it doubtful whether the statute was intended for cities, towns, and villages, or for towns and villages only, the rules invoked might apply. But the word must be rejected in any event. To stop there leaves us with a senseless act. The word is-not merely superfluous. Another word was-intended, and the context unerringly discloses it.\\nCriminal statutes are to be strictly construed. But, as said by Mr. Justice Roberts, \\\" they are not to be subjected to any strained or unnatural construction in order to work exemptions from their penalties. Such statutes must be interpreted by the aid of the ordinary rules for the construction of statutes, and with the cardinal object of ascertaining the intention of the Legislature.\\\" Ex parte De Vore, 18 N. M. 246, 136 P. 47, 49. See, also, State v. Southern Pacific Co., supra, where we construed a statute authorizing a special tax levy by a county.\\nBoth ordinances, 800 and 875, prescribe as penalties for violations, a fine of from $10-to $200, or imprisonment from 5 to 60 days, or both. Plaintiff contends that such penal ty provision is | void, and that this results in the invalidity of the whole ordinance. The basis of the contention is that chapter 159, \\u2022supra, authorizing penalties, fails to limit them, and that, consequently, the city's power in the matter of penalties is controlled by 1929 Oomp. St. \\u00a7 90-901, generally limiting penalties for ordinance violations. The statute authorizes fine or imprisonment; the ordinance, both.\\nPlaintiff \\u2022 cites numerous decisions to its proposition that the penal provisions of an ordinance are void unless strictly in accord with those authorized by charter, and that the whole statute falls with its penal provisions. Many of these cases are collected in Brannon v. Wilmington, 31 Ohio App. 307, 165 N. E. 311.\\nSince no penalties are sought against plaintiff, the invalidity of those of the ordinance would he here immaterial unless it should result fatally to the ordinance as a whole, a result which the city denies and which we-doubt, but leave undecided. We shall consider the claimed invalidity of the penalty sections.\\nBrannon v. Wilmington, supra, notices a contrary view stated in 19 R. O. L., \\\"Municipal Corporations,\\\" \\u00a7 116, thus; \\\"When the penalty prescribed in the ordinance is in excess of that authorized by the charter, the ordinance is not void, and the penalty may be enforced to the extent that it does not exceed the lawful limit.\\\"\\nPlaintiff urges that City of Roswell v. Jacoby, 21 N. M. 702, 158 P. 419, commits us to its contention. There was no occasion in that case for holding the ordinance void, and we do not understand the court to have done so.\\nWe think, rather, that consistency of principle commits us to the other view, at least in a case of this kind. In Cica's Case, 18 N. M. 452, 137 P. 598, 51 L. R. A. (N. S.) 373, a judgment including both fine and imprisonment was held not void in toto, though beyond the power of the court to pronounce. We deemed it severable and void only as to the excess. Compare Jordan v. Swope, 36 N. M. 84, 8 P.(2d) 788. If the sentence may be thus saved, surely the penalty provision may be.\\nPlaintiff challenges the constitutionality of chapter 159, supra. It is contended that the municipal excise, added to the state excise, results in double taxation. Admitting that the same sale is twice taxed under state authority, we find no constitutional prohibition of it, nor do we find in State v. Ingalls, 18 N. M. 211, 135 P. 1177, relied on by plaintiff, a condemnation of it; nor in Opinion of Justices, 250 Mass. 591, 148 N. E. 889, cited by appellant, anything to argue that what has been here done is obnoxious to the due process and equal protection, or any other provision, of our Constitution.\\nThis disposes of the questions presented in No. 3800. In No. 3796, plaintiff pleaded that it had paid all license and occupation taxes demanded of it by the city for the privilege of carrying on its business as a distributor or a retail' dealer, for 1931. This the city admitted. On this fact judgment was rendered on the pleadings, on the theory, set up in plaintiff's motion therefor, that Ordinance 800 was void and unenforceable, constituting a double taxation prohibited by section 7 of the statute.\\nWe cannot agree that the pleaded and admitted fact rendered the ordinance void or unenforceable, or that it supports the judgment.\\nThe passage of Ordinance 800 was an election by the city to \\\"assess\\\" the license tax. Under section 7 of the act, existing license and occupation taxes were by such election suspended as to gasoline dealers. Plainly, the city could not exact and retain both the old and the new taxes. It does not follow that it must postpone the new tax until the next year, or that a dealer who chanced to have paid the old taxes for a period beyond the taking effect of the ordinance could escape the new taxes. All dealers must be affected alike. Liability could not depend upon payment or nonpayment of former taxes, nor upon the time of engaging in business, whether before or after the passage of the ordinance.\\nThe ordinance makes no provision for refunding or crediting sums paid. That cannot render it void. The right to refund or credit flows from the statute. No principle of law recognized in this jurisdiction would have prevented the new tax from being added to the old. That result follows from the legislative declaration that the new shall be \\\"in lieu of\\\" the old. That requirement is naturally and reasonably satisfied by recognizing former payments in reduction of the new tax accruing. Plaintiff was not satisfied with this, but we think it was entitled to no more.\\nThe judgment in No. 3796 will be reversed. That cause will be remanded, with a direction to overrule the motion for judgment on the pleadings, and to proceed further conformably to the principles herein stated.\\nThe judgment in No. 3800 is affirmed, and that cause will be remanded. It is so ordered.\\nBICKLEY, C. J., and SADLER and HUDS-PETH, JJ., concur.\"}"

nm/1587678.json

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+"{\"id\": \"1587678\", \"name\": \"PRIMUS v. CLARK et al.\", \"name_abbreviation\": \"Primus v. Clark\", \"decision_date\": \"1954-08-12\", \"docket_number\": \"No. 5718\", \"first_page\": \"588\", \"last_page\": 597, \"citations\": \"58 N.M. 588\", \"volume\": \"58\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T19:34:37.523240+00:00\", \"provenance\": \"CAP\", \"judges\": \"McGHEE, C.J., and COMPTON and LUJAKf, JJ., concur.\", \"parties\": \"PRIMUS v. CLARK et al.\", \"head_matter\": \"273 P.2d 963\\nPRIMUS v. CLARK et al.\\nNo. 5718.\\nSupreme Court of New Mexico.\\nAug. 12, 1954.\\nRehearing Denied Sept. 25, 1954.\\nHenry J. Hughes and Fletcher A. Catron, Santa Fe, for appellant.\\nWatson, McIntosh & Watson, Santa Fe, for appellees.\", \"word_count\": \"3730\", \"char_count\": \"21930\", \"text\": \"SADLER, Justice.\\nThe present appeal represents the third appearance in this Court, on one phase or another of the litigation involving the tangled property rights of appellant (plaintiff) and her former husband, Allan B. Clark, whose death has occurred pendente lite, resulting in the substitution as defendant herein of Joy Cassidy Clark, both individually and as Executrix of the Last Will and Testament of Allan B. Clark, deceased. The defendant last named was married to Allan B. Clark, following a divorce decree severing the bonds of matrimony between appellant and Allan B. Clark. The latter and appellant, the day before their divorce, had entered into a written settlement agreement under date of June 22, 1936, the cancellation of which was sought by appellant in the suit resulting in the appeal brought before us in Primus v. Clark, 48 N.M. 240, 149 P.2d 535.\\nThe review just mentioned resulted in a reversal of the judgment appealed from and a remand to the trial court with directions, as follows:\\n\\\"This case is unusual, and the results so unjust that we will exercise our inherent power to determine whether in fact the cause of action is barred by laches or limitations, by a reversal for a finding upon two questions of fact, to-wit:\\n\\\"1. Whether the defendant at the time of the execution of the deed and contract in question had the fraudulent present intent not to perform the contract on his part, and if so\\n\\\"2. The date upon which such fraud was discovered by plaintiff.\\n\\\"Also to det\\u00e9rmine from such facts as it may find, whether plaintiff's cause of action is barred by the statute of limitation or if she is estopped to prosecute her suit by her laches.\\n\\\"The cause is reversed and remanded with instructions to the district court to set aside the decree, to hear evidence to determine the questions of fact mentioned, and with findings made therefrom, state his conclusion of law as to whether plaintiff's cause of action is barred by the statute of limitation or whether she is estopped- to prosecute her action because of her laches; and to enter a decree consistent herewith. It is so ordered. \\\"\\nFollowing remand the mandate was filed below on July 6, 1944, and no further action having been taken in the case, three separate motions to dismiss were filed by the then current defendant, the first on January 4, 1947, the second on December 30, 1949, and .the .third on February 10, 1950. Each motion was denied, in turn. Whereupon the defendant, Allan B. Clark, on February 10, 1950, applied.to this.Court for a writ of mandamus to compel a dismissal by the district court under the provisions of 1941 Comp. \\u00a7 19-101 (41) (e), authorizing same where more than two (2) years have elapsed without action by a plaintiff'to bring his case to a final determination. We ' held the statute or rule was inapplicable where the action had been previously brought to final determination, appeal had been prosecuted and a new trial had been ordered.\\nWhile the mandamus proceeding was pending before us, Allan B. Clark, the petitioner therein, died following an automobile accident and his wife', one of the present defendants, was substituted as petitioner 'therein, both individually and as executrix aforesaid. The mandamus proceeding resulted' in a holding that the alternative writ had been improvidently issued and it was discharged for the reason above stated.\\nThereafter, and on February 9, 1951, the plaintiff below, appellant here, asked leave to file a supplemental complaint and leave was granted by the trial court and supplemental complaint was filed February 23, \\u00cd.951. 'It should be stated, also, that by reason of a conveyance by the said Allan B'. 'Clark and Joy Cassidy Clark, his wife, to John T. Watson 'and Jane Wa.tson, his wife, by deed'dated January 11, \\u00cd949, of the 'ranch property involved (the grantees having rec\\u00f3nvey\\u00e9d' the' property one day later to their grantors, Allan B. Clark and Joy Cassidy Clark as joint tenants), the Watsons named were made parties defendant herein. John T. Watson entered a voluntary appearance in the case and on April 19, 1951, filed an answer to plaintiff's supplemental complaint, which had been filed pursuant to leave of the court. Likewise, and on March 29, 1952, the defendant (appellee) both individually and -as executrix aforesaid, filed in the cause her amended an.swer to the supplemental complaint filed by plaintiff.\\nThereafter and on August 18, 1952, 'a pre-trial conference in the case, participated in by the trial judge and all attorneys in the case was held, in the chambers, of the judge in Santa Fe at which the issues of law in the case were settled. On June 23, 1953, a certificate of noii-appearance as to the defendant Jane Watson-was filed to be followed a few days later,, to-wit, on June 29, 1953, by entry of an order of dismissal of plaintiff's cause of action, from which the present appeal is. prosecuted. In due course and under date of June 29, 1953, the trial, court entered, its judgment dismissing the cause. The judgment in question reads:\\n'Judgment Dismissing Cause\\n\\\"This cause coming regularly on'for hearing on the 18th day of August, 1952, on the issues of law arising upon the supplemental complaint and' the amended separate answer of Joy Cassidy Clark, individually and as Executrix of the Last Will and Testament of Allan B. Clark, Deceased, and the 'amended separate answer of Defendant John T. Watson;\\nAnd the Plaintiff appearing by Messrs. Henry J. Hughes and F. A. Catron, her Attorneys, and the Defendants appearing by Watson, McIntosh & Watson, their Attorneys;\\nAnd the Court having read the said pleadings, and having heard the arguments of Counsel, and having taken the .\\u2022said cause under advisement on the \\u2022said issues of law, and being now .fully advised -in the .premises;\\n' Now, upon said issues of law, the' Court holds, rules arid concludes:\\n\\\"1. The filing of the Supplemental complaint at Plaintiff's request, and without objection on the part'of the De- \\\" fendant, and the failure to incorporate in and bring forward into said Supplemental complaint any \\u00f3f tri\\u00e9 allegations \\u2022of the original complaint, constitute an abandonment of said, original com.plaint; and the cause is now before the Court on the allegations of the supplemental complaint only;\\n\\\"2. The mandate of the Supreme Court in cause No. 4768, being the appeal of this cause, directed this Court \\u00b1o hear evidence and make findings touching issues then in the cause, but which have been abandoned by the filing of the supplemental Complaint. Findings by this Court as directed in said mandate would be immaterial to any issue now in this cause; and any judgment for the Plaintiff based on such findings, would be without any pleading or allegations of fact to support it.\\n\\\"3. It appears on the face of said supplemental complaint that Allan B. Clark the original defendant herein, died on or about the 17th day of April, \\u00cd950, and that long prior to the filing of the supplemental complaint his last will and testament was offered for probate, admitted to probate, and that since long prior to the filing of said supplemental complaint his estate has -been \\u2022under administration in the Probate Court of- Santa Fe County.\\n\\\"4-. - This Court is without jurisdiction of any of the several causes .of 'action set forth in the supplemental complaint, it not being made- to appear that any claim on or touching the said several causes of action, or any of them, has been presented to the Probate Court of Santa Fe County as a claim against . the said estate of Allan- B. Clark, and disallowed;\\n\\\"And upon the foregoing holdings, rulings and conclusions,\\n\\\"It is ordered, adjudged and decreed, and the Court doth hereby order, ad judge and decree, that the said supplemental complaint, and each and every cause of action set forth therein, and this cause, be, and they are hereby dismissed; and that the Defendants recover and have judgment for their costs herein to be taxed.\\\"\\nWhile several points with questions ancillary thereto are argued at length in the briefs filed by counsel for appellant, there appears to be one important question confronting us at the outset which, determined as contended by the appellee (defendant), would prove decisive. It is a procedural question, to be sure. Nevertheless, it is one which must be answered and resolved as appellee contends, supports the judgment. Tersely put, the question is to be stated thus: If following remand, the appellant (plaintiff) secures leave to file and does file a supplemental complaint which omits to raise by appropriate allegation the sole issue the cause was sent back to determine may the appellant, having thus ignored the allegations of her original complaint, set up new and different causes of action foreign to the question submitted by the mandate and compel a trial thereon? The judge ruled it could not be done, and we are compelled to affirm the correctness of that ruling.\\nNow, to apply the question to the present facts.- -As disclosed by a reading of the opinion of the court in Primus v. Clark, supra,, the appellant sued to set aside a certain deed and contract, as well as verbal commitments incident thereto. This court, after reviewing the record, reversed the cause and remanded it with a specific direction to the trial court to determine an issue held to be within the pleadings, but on which no finding was made or requested, namely, whether at the time of executing the deed and contract sought to be can-celled Clark, the original defendant, entertained a present intention not to perform the promises made as contained in his deed and contracts.\\nIf he did then entertain this fraudulent intent, it next becomes important to ascertain when the appellee, his wife at the time, first learned of his fraud in the respect mentioned. Only then could the trial court pass considered judgment on the additional question submitted for determination on remand, namely, whether the appellee's cause of action was barred by limitations or laches. In other words, was she barred or estopped to prosecute the cause of action set up?\\nIt is thus to be seen that the second question mentioned does not arise unless the trial court supplies by a finding an affirmative answer to the first question. It must first affirm from the evidence existent in the mind of appellee's husband at the time he promised a preconceived intention not to d.o as promised, Anderson v. Reed, 20 N.M. 202, 148 P. 502, L.R.A.1916B, 862, before it becomes important to ascertain when she, the then wife, first discovered the husband's perfidy. A negative answer to the first question submitted by our mandate excuses, of course, an answer to the second question touching limitation, or laches.\\nWith this much of background furnished from the first appeal in Primus v. Clark, supra, to the opinion on which we would refer for a fuller statement of the facts in the earlier case, we proceed now to a discussion of the controlling considerations which, as we view the matter, are determinative of this appeal. First, we look to the mandate on the former appeal. It submitted two questions, said fairly to arise on the record as it came to us on that appeal, for determination on the remand of the case. There is no need to recite them again.\\nWe start out in our consideration of the question presented mindful of this language from our opinion in State ex rel. Del Curto v. District Court of Fourth Judicial District, 51 N.M. 297, 183 P.2d 607, 614, to wit:\\n\\\"The district court lost complete jurisdiction of the Del Curto case when it was appealed to this court. Upon remand it regained only such jurisdiction as the opinion and mandate of this court conferred.\\\"\\nSee, also, Albuquerque Broadcasting Company v. Bureau of Revenue, 54 N.M. 133, 215 P.2d 819.\\nNow what jurisdiction was conferred upon the remand of this case? To do exactly one thing, certainly \\u2014 two provisionally. That much and no more. The one thing it was certainly called upon to do was to ascertain whether the husband entertained a fraudulent intent, coincident with his promise, not to perform it. If the answer to that was negative, the inquiry was at an end. If affirmative, then the further inquiry arose as to when the wife learned of this perfidy on the part of her husband, to the end that the court could say whether limitations or laches barred her suit.\\nWhether from fear she could not prove the decisive primary issue thus submitted on remand or for some other seemingly good reason; or perhaps an ill-considered one which the record does not suggest and we are unable to surmise, the appellant chose not to attempt proof of this 'decisive issue tendered in her original complaint. Instead, she asked and secured leave of the court to file a supplemental complaint setting up six (6) separate causes of action, in not one of which is to be found tendered as an issue the fundamental inquiry which under the mandate and opinion on the former appeal the cause was remanded to ascertain.\\nIn our Rules of Civil Procedure, 15(e), we find a direction that in every complaint a party shall set forth in one entire pleading all matters necessary to the proper determination of the action or defense. It reads:\\n\\\"(e) All Matters Set Forth In One Pleading. In every complaint, answer, or reply, amendatory or supplemental, the party shall set forth in one entire pleading all matters which, by the rules of pleading, may be set forth in such pleading, and which may be necessary to the proper determination of the action or defense.\\\" N.M.S.A. 1947, \\u00a719-101 (15) (e).\\nWhat is the effect of appellee's failure to tender as an issue in her supplemental complaint the only matter it was given jurisdiction to ascertain on remand? We find the,answer to this pertinent inquiry in our own decisions. Albright v. Albright, 21 N.M. 606, 157 P. 662; Pople v. Orekar, 22 N.M. 307, 161 P. 1110; Klasner v. Klasner, 23 N.M. 627, 170 P. 745; State ex rel. Peteet v. Frenger, 34 N.M. 151, 278 P. 208; Weeks v. Bailey, 35 N.M. 417, 300 P. 358; Home Owners' Loan Corporation v. Reavis, 46 N.M. 197, 125 P.2d 709.\\n\\\" the plaintiff must be held to have abandoned all the allegations in his original complaint, not carried forward into his amended or supplemental complaint.\\\" Albright v. Albright, supra [21 N.M. 606, 157 P. 665].\\n\\\"A failure to comply with the statute would operate as an abandonment of the original pleading\\\". Pople v. Orekar, supra [22 N.M. 307, 161 P. 1112].\\n\\\"So long as the amended pleading stands, it alone is, no doubt, to be looked to as determining the cause of action or defense and the issues and to support the judgment.\\\" State ex rel. Peteet v. Frenger, supra [34 N.M. 151, 278 P. 209].\\nWith this much determined adversely to appellant there seems little purpose in pursuing a discussion of the other points argued at some length hy her counsel. Likewise, there is as little purpose in taking up and ruling upon the further contention of counsel for appellee that even if our decisions under Rule 15(e) do not debar appellee's suit, she is out under another -defense, namely, for failure to present her claims for allowance in the probate court within the time provided by statute, as to which appellee's counsel say that court would lack jurisdiction in the premises as to some of said claims, and as to which we answer neither yea nor nay.\\nIn view of the-numerous quotations from the opinion of Chief Justice Brice in Primus v. Clark, supra, with the writer noted as concurring, it is pertinent to ob serve before closing that what is there said does not have the concurrence of a majority of the justices, even though the three remaining justices did concur in the result. This fact is noted in the subsequent cases of Newton v. Wilson, 53 N.M. 480, 211 P.2d 776, and Curtis v. Curtis, 56 N.M. 695, 248 P.2d 683. Hence, it is scarcely accurate to choose given passages from that opinion- and characterize them as reflecting the views of the court. Maybe they do, but. one can not say so with assurance. What we do know is that in Primus v. Clark, supra, there was unanimous concurrence in remanding the cause for the .trial court to determine a vital issue for such effect as it might- be adjudged, to have.on plaintiff's rights. She rejected the opportunity thus afforded her to have that issue determined. Why, we do not know. We are convinced, however, that the trial court correctly ruled the state of the pleadings forbade a recovery by her. Its judgment must stand affirmed.\\nIt will be so ordered. .\\nMcGHEE, C.J., and COMPTON and LUJAKf, JJ., concur.\\nSEYMOUR, J., concurring specially.\"}"

nm/1588584.json

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+"{\"id\": \"1588584\", \"name\": \"STATE of New Mexico, Petitioner, v. James M. TRAMMEL, Respondent\", \"name_abbreviation\": \"State v. Trammel\", \"decision_date\": \"1983-11-23\", \"docket_number\": \"No. 15081\", \"first_page\": \"479\", \"last_page\": 481, \"citations\": \"100 N.M. 479\", \"volume\": \"100\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T00:58:19.561407+00:00\", \"provenance\": \"CAP\", \"judges\": \"PAYNE, C.J., DAN SOSA, Jr., Senior Justice, and FEDERICI and STOWERS, JJ., concur.\", \"parties\": \"STATE of New Mexico, Petitioner, v. James M. TRAMMEL, Respondent.\", \"head_matter\": \"672 P.2d 652\\nSTATE of New Mexico, Petitioner, v. James M. TRAMMEL, Respondent.\\nNo. 15081.\\nSupreme Court of New Mexico.\\nNov. 23, 1983.\\nPaul Bardacke, Atty. Gen., Heidi Topp Brooks, Asst. Atty. Gen., Santa Fe, for petitioner.\\nRichard S. Lees, Santa Fe, for respondent.\\nHinkle, Cox, Eaton, Coffield & Hensley, Thomas M. Hnasko, Santa Fe, for amicus curiae Southwestern Public Service Co.\\nKeleher & McLeod, Robert H. Clark, Albuquerque, for amicus curiae Public Service Company of New Mexico.\", \"word_count\": \"826\", \"char_count\": \"5130\", \"text\": \"OPINION\\nRIORDAN, Justice.\\nDefendant James M. Trammel (Trammel) was convicted of aggravated assault with a firearm contrary to NMSA 1978, Section 30-3-2 and NMSA 1978, Section 31-18-16 (Repl.Pamp.1981). At trial, Trammel requested a jury instruction on defense of property based on NMSA 1978, UJI Crim. 41.50 (Repl.Pamp.1982). The trial court denied Trammel's request. On appeal, the Court of Appeals reversed, holding that Trammel's requested instruction should have been given. We granted certiorari and reverse the Court of Appeals.\\nThe issue addressed is whether a person who uses force to resist the lawful termination of electric service is entitled to an instruction on defense of property.\\nThe facts are adequately presented in the Court of Appeals' opinion. The Court of Appeals determined that the trial court's reasoning in denying the requested instruction was that the only evidence of property involved was electricity and that such property did not belong to Trammel. The Court of Appeals determined that the electricity was, for purposes of the instruction, Trammel's. They held that John Raymond Johnson (Johnson), the New Mexico Electric Service Company (Electric Company) employee who was assaulted by Trammel, invaded Trammel's property. In reversing Trammel's conviction, the Court of Appeals concluded that there was sufficient evidence for submission of the instruction. We disagree.\\nThe record shows that a \\\"Connect Order\\\" was issued to the Trammel residence. The \\\"Connect Order\\\" is an agreement contract between the customer and the Electric Company in which the Electric Company agrees to serve the customer and the customer agrees to give the Electric Company access to the customer's property in order to install, service, read, or remove equipment. Since Johnson had gone to the Trammel residence to disconnect service, his presence on Trammel's property was lawful.\\nThis Court has recognized that \\\"[a] man may use force to defend his real or personal property in his actual possession against one who endeavors to disposses him without right State v. McCracken, 22 N.M. 588, 593, 166 P. 1174, 1176 (1917) (emphasis added) (quoting Carpenter v. State, 62 Ark. 286, 310, 36 S.W. 900, 907 (1896)). From McCracken, we derive the principle that an individual may not use force to defend real or personal property where the attempt to dispossess is lawful. See also Model Penal Code \\u00a7 3.06, 10 U.L.A. 481 (1974); W. La Fave & A. Scott, Handbook on Criminal Law \\u00a7 55, at 399 (1972). Since we have determined that Johnson was lawfully on the property, we also determine that Trammel was not justified in using force (pointing a gun) to remove Johnson from Trammel's property. Therefore, Trammel was not entitled to a defense of property instruction.\\nFurthermore, we have determined that when there is evidence to support a finding of every element of a defense, an instruction on that defense is required. Poore v. State, 94 N.M. 172, 608 P.2d 148 (1980). When evidence at trial supports the giving of an instruction on a defendant's theory of the case, failure to so instruct is reversible error. Id.; State v. Benavidez, 94 N.M. 706, 616 P.2d 419 (1980). UJI Crim. 41.50 sets forth the elements necessary for finding that a defendant acted in defense of property in non-homicidal cases, such as the present case. The first element of UJI Crim. 41.50 is that the property involved must be the defendant's. The Court of Appeals' reversal was predicated upon the assumption that the electricity that Trammel was receiving belonged to him. However, the \\\"Connect Order\\\" states that if the customer fails to make payment, the customer will not be entitled to electric service. The record shows that past-due notices and a disconnect notice were sent to Trammel's address and that the Electric Company received no response. Consequently, the Electric Company had the right to disconnect Trammel's electric service for non-payment. See Miller v. Roswell Gas & Electric Co., 22 N.M. 594, 166 P. 1177 (1917). Since the electric service to Trammel's residence had not been paid for, and since the Electric Company had the right to disconnect the service, the electricity was no longer Trammel's property nor in his lawful possession. The first element of UJI Crim. 41.50 was therefore not present.\\nThe decision of the Court of Appeals is reversed. The judgment of the trial court is reinstated.\\nIT IS SO ORDERED.\\nPAYNE, C.J., DAN SOSA, Jr., Senior Justice, and FEDERICI and STOWERS, JJ., concur.\\n. We do not discuss the question of whether the amount of force used was reasonable since it was not raised in the Court of Appeals.\"}"

nm/1588628.json

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+"{\"id\": \"1588628\", \"name\": \"Evelyn Mastrantoni LeBLANC, Personal Representative of the Estate of Lawrence LeBlanc, Deceased, Plaintiff-Appellant, v. NORTHERN COLFAX COUNTY HOSPITAL and Milton Floersheim, M.D., Defendants-Appellees\", \"name_abbreviation\": \"LeBlanc v. Northern Colfax County Hospital\", \"decision_date\": \"1983-11-01\", \"docket_number\": \"No. 7123\", \"first_page\": \"494\", \"last_page\": 497, \"citations\": \"100 N.M. 494\", \"volume\": \"100\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T00:58:19.561407+00:00\", \"provenance\": \"CAP\", \"judges\": \"WOOD and DONNELLY, JJ., concur.\", \"parties\": \"Evelyn Mastrantoni LeBLANC, Personal Representative of the Estate of Lawrence LeBlanc, Deceased, Plaintiff-Appellant, v. NORTHERN COLFAX COUNTY HOSPITAL and Milton Floersheim, M.D., Defendants-Appellees.\", \"head_matter\": \"672 P.2d 667\\nEvelyn Mastrantoni LeBLANC, Personal Representative of the Estate of Lawrence LeBlanc, Deceased, Plaintiff-Appellant, v. NORTHERN COLFAX COUNTY HOSPITAL and Milton Floersheim, M.D., Defendants-Appellees.\\nNo. 7123.\\nCourt of Appeals of New Mexico.\\nNov. 1, 1983.\\nRichard V. Earl, McCulloch, Grisham & Lawless, P.A., Albuquerque, for plaintiff-appellant.\\nNorman F. Weiss, Farlow, Simone & Roberts, P.A., Albuquerque, for defendant-appellee Northern Colfax County Hosp.\\nJoe L. McClaugherty, Debra Romero Thai, Rodey, Dickason, Sloan, Akin & Robb, P.A., Santa Fe, for defendant-appellee Milton Floersheim, M.D.\", \"word_count\": \"2081\", \"char_count\": \"12463\", \"text\": \"OPINION\\nBIVINS, Judge.\\nThis is a medical malpractice action. Claiming negligence on the part of defendants, Northern Colfax County Hospital and Dr. Milton Floersheim, plaintiff seeks damages for the wrongful death of Lawrence LeBlanc. From a summary judgment in favor of defendants, she appeals.\\nWe discuss whether fact questions exist as to the negligence of either or both defendants, and as to proximate cause.\\nLeBlanc was injured in a fight during the late evening of February 15 or the early morning of February 16, 1978. He had been kicked or hit in the stomach. After taking some Maalox and a pain pill, LeBlanc went to the emergency room of the hospital at approximately 4:00 a.m. on the morning of February 16. A triage nurse obtained LeBlanc's history and examined him before calling Dr. Floersheim at his home and relating the findings with her recommendations. The nurse felt that this was not an emergency case and could wait until regular office hours, approximately four hours later. The doctor agreed and prescribed Talwin, a pain killer, for LeBlanc, with instructions that LeBlanc see a doctor in the morning if he continued to experience pain.\\nOn February 18, LeBlanc went or was taken to the office of another doctor who was too busy to see him and referred LeBlanc back to the hospital. Because no doctor was on duty at the hospital,- the emergency room personnel suggested LeBlanc go to Dr. Floersheim's office. LeBlanc then went or was taken to Dr. Floersheim's office, but when he saw the parking lot appeared full, he decided to go home.\\nOn February 22,1978, LeBlanc was taken to Dr. Floersheim's office, and the doctor had him immediately admitted to the hospital. He died the following day. The cause of death was bile peritonitis due to traumatic laceration of the liver together with gastrointestinal hemorrhage from the patient's ulcer. According to Dr. Schwartz, \\\"[W]hereas a hemorrhage might have been a terminal event, had he [LeBlanc] not had a serious injury to his liver I do not believe that this man would have died.\\\"\\nFrom the time he left the hospital on February 16, until his admission on February 22, LeBlanc took two. unprescribed Darvon pills every four hours and drank small amounts of liquids. He ate no food.\\nAt the conclusion of the summary judgment hearing, the trial court held that while fact issues had been demonstrated as to the negligence of the defendants, \\\"that negligence was not a contributing factor of the death of Lawrence LeBlanc.\\\" The court felt that if LeBlanc h\\u00e1d died reasonably close to the time when he was instructed to return, a fact question might be presented as to proximate cause. The court noted the lack of medical or other evidence that would suggest that \\\"that negligence can be stretched so far as to show that [the negligence] was a cause of the death on the 23rd of February, some seven or eight days after that original [visit to the hospital].\\\"\\nIn analyzing this ease we look to the record, mindful that all reasonable inferences will be construed in favor of a trial on the facts. C & H Const. & Paving Co. v. Citizens Bank, 93 N.M. 150, 597 P.2d 1190 (Ct.App.1979). Dr. Floersheim testified that LeBlanc's vital signs were normal and that there was no emergency situation requiring a physician at the time LeBlanc presented himself at the emergency room. He also said that the instruction to see a doctor in the morning if the pain continued was adequate. It was the policy of the hospital to provide more detailed information to the patient only in cases involving head injuries or the need for a cast. Dr. Floersheim said that if LeBlanc had returned as late as February 19, he most likely would have survived. Even with hindsight, Dr. Floersheim said that his actions and those of the nurse would have been no different. He asserted that LeBlanc's condition at the time of the emergency room evaluation had not reached the point where a diagnosis could have, been made.\\nThe deposition of Dr. George Schwartz, a professor at the University of New Mexico School of Medicine who teaches emergency medicine, was relied on by all parties at the summary judgment hearing. Plaintiff engaged Dr. Schwartz to evaluate this case. Given the patient's history of being in a fight in which he was kicked or stomped in the abdomen and his vital signs showing elevated pulse rate, low blood pressure, and increased respiration coupled with abdominal tenderness and pain, Dr. Schwartz stated that there were sufficient \\\"red flags\\\" to require further investigation and work-up. He said the nurse's failure to recognize the potential dangers fell below the standard of care expected even in a community hospital. See Ramsey v. Physicians Memorial Hospital, Inc., 36 Md.App. 42, 373 A.2d 26 (1977) (nurse failed to relate information to physician involving removal of ticks from patient who had Rocky Mountain Spotted Fever). Notwithstanding the nurse's inadequate assessment, Dr. Schwartz said that \\\"there was enough indication of abnormality for Dr. Florsheim [sic] to be warned to wish to evaluate this patient further.\\\"\\nOn the basis of this testimony we hold that a fact question has been presented as to the negligence of the defendants.\\nThis brings us then to the issue of proximate cause. For the purpose of summary judgment, plaintiff concedes that LeBlanc's own negligence in failing to obtain medical attention after his condition worsened was a proximate cause of his death and that a jury would probably apportion most of the fault to LeBlanc. She argues, however, that the defendants' negligence constituted a concurrent cause and that, therefore, to some percentage extent they are also liable.\\nWhere reasonable minds may differ on the question of proximate cause, the matter is to be determined by the fact finder. Galvan v. City of Albuquerque, 85 N.M. 42, 508 P.2d 1339 (Ct.App.1973). It is only where the facts are not in dispute and the reasonable inferences from those facts are plain and consistent, that the issue of proximate cause becomes one of law. Galvan.\\nIn examining the facts, we focus on the quality of the instruction given LeBlanc to see a doctor in the morning if his pain continued. The nurse did not warn LeBlanc as to any potential dangers or the consequences of failing to obtain medical attention. As she stated in her deposition, \\\"[i]f I thought they had an internal injury, I wouldn't send them home.\\\" Since she failed to detect evidence of internal injury or the need to investigate further, she saw no need to advise LeBlanc as to why he should see a doctor if the pain continued. Neither did Dr. Floersheim. When medical providers fail to recognize a problem, or even danger signs indicating a need for further investigation, the law will not impose a higher duty on the patient. See Duran v. New Jersey Zinc Company, 83 N.M. 38, 487 P.2d 1343 (1971). In McNeill v. United States, 519 F.Supp. 283 (D.S.C. 1981), evidence established not only that physicians were negligent in failing to adequately examine a ten-month-old child brought to the emergency room for treatment with a swollen hand and rash, but also that one physician told the parents they were \\\"abusing the emergency room\\\" when they brought the child back a second time. The court held that the physician's negligence was the proximate cause of the meningitis the child later developed.\\nWhen asked if it was proper to have the patient return in the morning when the lab facilities would be open, Dr. Schwartz said:\\nI think that the best course of action would have been, at that point, to not release the patient from the hospital. That would have been the course of action which I believe would have been prudent.\\nAs to likely outcome, if LeBlanc had returned within 24 hours and his condition had been identified and treated, Dr. Schwartz said that the deficient examination in the emergency room and Dr. Floersheim's \\\"faulty judgment\\\" would not have mattered; the patient would have survived. Of course, the inference can be drawn that if LeBlanc had been admitted and hospital personnel had investigated further, he also would have survived. Both physicians seem to agree that LeBlanc could have lived had he received treatment as late as February 19. See Ferrara v. Leventhal, 56 A.D.2d 490, 392 N.Y.S.2d 920 (1977).\\nTo suggest that LeBlanc's failure to return was the sole proximate cause of his death not only begs the question, it oversimplifies it. Based on the nurse's assessment of a non-emergency benign situation, the fact finder may well determine that LeBlanc was lulled into thinking the pain would go away. He did not seek help until a day and a half later. At some point between February 16 and February 22, LeBlanc may have known or should have known that, notwithstanding the earlier failure to determine his injury, his worsened condition required action on his own part. Proximate cause need not be the last act or the nearest act to the injury; it need only be one which actually aided in producing the result as a direct and existing cause. Ortega v. Texas-New Mexico Railway Company, 70 N.M. 58, 370 P.2d 201 (1962). Further, the act need not be the sole cause but merely a concurring cause. Rix v. Town of Alamogordo, 42 N.M. 325, 77 P.2d 765 (1938); Galvan.\\nWe are unable to say, based on the facts before us, that the failure of the nurse and the doctor to detect a potentially life-threatening injury and to give instructions which would apprise the patient of the seriousness of his condition could not be found to have concurred in producing the death of LeBlanc. In Thomas v. Corso, 265 Md. 84, 288 A.2d 379 (1972), the court held:\\n[T]he jury could have reasonably concluded that under the circumstances of this case that if Dr. Thomas had performed his duty to attend Corso personally shortly after he was telephoned at 11:30 p.m., Dr. Thomas might well have been able to have saved his life and that this negligent conduct was one of the direct and proximate causes of Corso's death, concurrent with the negligence of the nurses.\\nWas LeBlanc's negligence an independent intervening cause which interrupted the natural sequence of events and produced a result which defendants could not have reasonably foreseen? In Harless v. Ewing, 80 N.M. 149, 452 P.2d 483 (Ct.App.1969), we said:\\nThe independent intervening cause that will prevent a recovery of the act or omission of a wrongdoer must be a cause which interrupts the natural sequence of events, turns aside their cause, prevents the natural and probable results of the original act or omission, and produces a different result, that could not have been reasonably foreseen.\\nForeseeability does not mean that the precise hazard or the exact consequences which were encountered should have been foreseen.\\n(Citations omitted.) Given the fact that LeBlanc received instructions consistent with the deficient assessment at the emergency room, a fact finder could find that a patient might delay seeking medical attention, at least until his physical condition demanded otherwise. We note also that Dr. Floersheim had treated LeBlanc previously and knew he was an alcoholic and a drug user. A jury could find that it would not be unreasonable to foresee that this patient might resort to drugs to relieve his pain and that this could affect his ability to act responsibly.\\nHad the doctor or nurse given instructions which would have alerted a reasonable person to the dangers of not obtaining medical attention, the result here might have been different. While this is admittedly a close case, we are unable to say as a matter of law that a fact question has not been presented.\\nThe summary judgment is therefore reversed, and the ease remanded for trial on the merits. Costs on appeal are to be paid equally by defendants.\\nIT IS SO ORDERED.\\nWOOD and DONNELLY, JJ., concur.\"}"

nm/1588663.json

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+"{\"id\": \"1588663\", \"name\": \"In the Matter of RANCHERS-TUFCO LIMESTONE PROJECT JOINT VENTURE (Severance Tax) Assessment No. 270283; Ranchers-Tufco Limestone Project Joint Venture (Compensating Tax) Assessment No. 151228; Todilto Exploration and Development Corporation (Severance Tax) Assessment No. 270284. RANCHERS-TUFCO LIMESTONE PROJECT JOINT VENTURE, and Todilto Exploration and Development Corporation, Taxpayers-Appellants, v. REVENUE DIVISION, NEW MEXICO TAXATION AND REVENUE DEPARTMENT, Appellee; In the Matter of RANCHERS HNG JOINT PROJECT, Assessment Nos. 151450, 260352 and 270293. RANCHERS HNG JOINT PROJECT, Taxpayer-Appellant, v. REVENUE DIVISION, NEW MEXICO TAXATION AND REVENUE DEPARTMENT, Appellee\", \"name_abbreviation\": \"Ranchers-Tufco Limestone Project Joint Venture v. Revenue Division, New Mexico Taxation & Revenue Department\", \"decision_date\": \"1983-10-20\", \"docket_number\": \"Nos. 7225, 7093\", \"first_page\": \"632\", \"last_page\": 643, \"citations\": \"100 N.M. 632\", \"volume\": \"100\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T00:58:19.561407+00:00\", \"provenance\": \"CAP\", \"judges\": \"HENDLEY and DONNELLY, JJ., concur.\", \"parties\": \"In the Matter of RANCHERS-TUFCO LIMESTONE PROJECT JOINT VENTURE (Severance Tax) Assessment No. 270283; Ranchers-Tufco Limestone Project Joint Venture (Compensating Tax) Assessment No. 151228; Todilto Exploration and Development Corporation (Severance Tax) Assessment No. 270284. RANCHERS-TUFCO LIMESTONE PROJECT JOINT VENTURE, and Todilto Exploration and Development Corporation, Taxpayers-Appellants, v. REVENUE DIVISION, NEW MEXICO TAXATION AND REVENUE DEPARTMENT, Appellee. In the Matter of RANCHERS HNG JOINT PROJECT, Assessment Nos. 151450, 260352 and 270293. RANCHERS HNG JOINT PROJECT, Taxpayer-Appellant, v. REVENUE DIVISION, NEW MEXICO TAXATION AND REVENUE DEPARTMENT, Appellee.\", \"head_matter\": \"674 P.2d 522\\nIn the Matter of RANCHERS-TUFCO LIMESTONE PROJECT JOINT VENTURE (Severance Tax) Assessment No. 270283; Ranchers-Tufco Limestone Project Joint Venture (Compensating Tax) Assessment No. 151228; Todilto Exploration and Development Corporation (Severance Tax) Assessment No. 270284. RANCHERS-TUFCO LIMESTONE PROJECT JOINT VENTURE, and Todilto Exploration and Development Corporation, Taxpayers-Appellants, v. REVENUE DIVISION, NEW MEXICO TAXATION AND REVENUE DEPARTMENT, Appellee. In the Matter of RANCHERS HNG JOINT PROJECT, Assessment Nos. 151450, 260352 and 270293. RANCHERS HNG JOINT PROJECT, Taxpayer-Appellant, v. REVENUE DIVISION, NEW MEXICO TAXATION AND REVENUE DEPARTMENT, Appellee.\\nNos. 7225, 7093.\\nCourt of Appeals of New Mexico.\\nOct. 20, 1983.\\nCertiorari Denied Nov. 30, 1983.\\nRobert H. Clark, Margaret E. Davidson, Keleher & McLeod, P.A., Pauli Mines Poole, Tinnin & Martin, P.C. Albuquerque, for taxpayer-appellant, Ranchers-Tufco Limestone Project Joint Venture.\\nRex Throckmorton, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, for taxpayer-appellant, Todilto Exploration and Development Corporation.\\nPaul Bardacke, Atty. Gen., Paula ForneyThompson, Asst. Atty. Gen., Taxation and Revenue Dept. Santa Fe, for appellee.\", \"word_count\": \"6342\", \"char_count\": \"38836\", \"text\": \"OPINION\\nWOOD, Judge.\\nThis opinion decides the issues raised in the separate appeals in Nos. 7225 and 7093.\\nThe tax collector (Revenue Division of the Taxation and Revenue Department) denied the protests of the taxpayers to certain tax assessments. The taxpayers appeal. We group the issues into four headings: (1) delay in deciding the protests; (2) severance tax; (3) resources tax; and (4) compensating tax. The severance and resources tax assessments involve uranium ore. The compensating tax assessments involve property brought into New Mexico and used at the taxpayers' mine operations where uranium ore was recovered.\\nThere are three taxpayers:\\n(a) Tufco (Ranchers-Tufco Limestone Joint Venture) is \\\"a joint venture between Ranchers Exploration and Development Corporation and Chaco Energy Company which is the successor in interest to Tufco, a subsidiary of Texas Utilities Fuel Company.\\\"\\n(b) Todilto (Todilto Exploration and Development Corporation, a New Mexico corporation).\\n(c) HNG (Ranchers HNG Joint Project) is a \\\"joint venture comprised of Ranchers Exploration and Development Corporation and HNG Oil Company\\\".\\nThe tax assessments against Tufco and Todilto are for reporting periods April 1976 through June 1979. The tax assessments against HNG are for reporting periods March 1977 through June 1979. No issue is raised as to the reporting periods involved.\\nNo issue is raised as to the arithmetic of the dollar amount of the assessments.\\nNo issue is raised as to the applicable tax statutes. A reference to a statute is to the statute appearing in NMSA 1978. Because the issues primarily involve the meaning of the applicable statutes, amendments to those statutes, not involved in resolution of the issues, are not identified.\\nDelay in Deciding the Protests\\nThe protests of Tufco and Todilto, which were timely, were filed in January 1980. An informal conference between the tax collector and these taxpayers was held on April 23, 1980. The formal hearing on these protests was not held until December 16, 1982.\\nThe protests of HNG, which were timely, were filed in February and March 1980. The formal hearing on these protests was not held until November 18, 1982.\\nPrior to or at the formal hearing each taxpayer sought abatement of the assessments against it. The hearing examiner, on behalf of the Director of the Revenue Division, denied the protests.\\nThe taxpayers claim that the assessments should have been abated because they were not given a prompt hearing on the protests. They rely on Section 7-l-24(D) which states: \\\"Upon timely receipt of a protest . the commissioner or his delegate shall promptly set a date for hearing and on that date hear the protest . . \\\" We recognize that this statute is ambiguous; it requires that a date for hearing be set promptly; only by interpretation can we hold that the statute requires a prompt hearing. That, however, is not an issue in these cases.\\nThe tax collector views the taxpayers' argument as a claim that because of delay it should be equitably estopped from collecting the assessments. The tax collector points out that estoppel does not apply, as a general rule, against the State. See United States v. Bureau of Revenue, 87 N.M. 164, 531 P.2d 212 (Ct.App.1975). The taxpayers respond that they have never relied on an estoppel concept and do not claim, in these appeals, that the tax collector is estopped. The equitable estoppel argument of the tax collector is a false issue and is not considered.\\nThe taxpayers rely on Section 7-l-24(D); they claim that they have a statutory right to a prompt hearing, and the tax collector has deprived them of this statutory right. The parties dispute whether the tax collector violated the statute, arguing over the meaning of \\\"promptly\\\", whether the delay was reasonable, and whether a taxpayer has an affirmative duty to speed up the process. We need not discuss these items.\\nAssuming, but not deciding, that the tax collector violated Section 7-l-24(D), how does a taxpayer benefit from the violation? The statute says nothing as to the consequence of a violation. The general rule is that tardiness of public officers in the performance of statutory duties is not a defense to an action by the state to enforce a public right or to protect public interests. State, ex rel. Dept. of Human Services v. Davis, 99 N.M. 138, 654 P.2d 1038 (1982). The general rule is applicable in these cases unless Section 7-l-24(D) makes it inapplicable. Section 7-l-24(D) does not make the general rule inapplicable.\\nEven if the general rule did not apply, the taxpayers have not demonstrated that they have been harmed by the delay in deciding their protests. The taxpayers assert that the delay, in itself, was prejudicial because \\\"we're uncertain as to what it's going to cost us in the future to produce uranium in the State of New Mexico, and how we can make a sales contract that will permit us to be competitive with other states and with other countries *'' They also assert: \\\"The recall of potential witnesses has been clouded by the passage of time.\\\" These items were insufficient to show prejudice. Compare State v. Duran, 91 N.M. 756, 581 P.2d 19 (1978); State v. Jojola, 89 N.M. 489, 553 P.2d 1296 (Ct.App.1976).\\nSeverance Tax\\nThe severance tax issues as to Tufco and Todilto involve the proper method of determining taxable value. The severance tax issue as to HNG involves a reimbursement for an increase in the severance tax.\\nA. Determining Taxable Value\\nThe assessments of severance tax and interest against Tufco and Todilto are based on the tax collector's method of determining taxable value of uranium ore. Tufco and Todilto assert the tax collector's method is incorrect. This issue involves the interrelationship of two statutes.\\n7-26-4. Determination of taxable value of natural resources.\\nsfc * sfc % \\u2021 jfc\\nF. The taxable value to be reported for severed and saved uranium-bearing material is the sales price per pound of the content of U3O8 contained in the severed and saved or processed uranium, regardless of the form in which the product is actually disposed of. It is presumed, in the absence of preponderant evidence of another value, that the taxable value means the total amount of money and the reasonable value of other consideration received, or either of them, for the severed and saved uranium ore or processed uranium \\\"yellowcake\\\" concentrate. However, if the severed and saved uranium ore or \\\"yellowcake\\\" concentrate is not sold as ore or concentrate, the gross value shall be the value of U308 in ore or \\\"yellowcake\\\" concentrate represented in the final product. Taxable value shall be gross value without deduction of any kind.\\n7-26-7. Severance tax on uranium.\\nA. The severance tax on uranium is measured by the quantity of U3O8 contained in and recoverable from severed and saved uranium-bearing material whether that material is ore or solution, measured in a standard manner established by regulation of the commissioner of revenue. The taxable event is the sale, transportation out of New Mexico or consumption of the uranium-bearing material, whichever first occurs.\\nSection 7-26-7 provides the severance tax applies to \\\"each pound of severed and saved U3O8 contained in severed uranium-bearing material\\\". The tax is measured by taxable value per pound of U3O8; the tax rate increases as the taxable value per pound increases.\\nUnchallenged findings of the hearing examiner state the factual background of the dispute as to the correct method of determining taxable value.\\n(a) Tufco and Todilto are separately engaged in the business of mining and selling uranium ore from underground mines in New Mexico. The severed uranium ore brought to the surface of the mine is \\\"saved\\\" as a uranium-bearing product which has value.\\n(b) The chemical formula for uranium in its natural state is U308. Raw uranium ore is milled in New Mexico to increase the concentration of U308. The product of the milling process is concentrated U303, called yellowcake. Neither Tufco nor Todilto owned a milling facility; they sold their raw ore to a third party. The third party did the milling which resulted in yellow-cake.\\n(c) \\\"During the milling process, some U308 is lost and becomes waste. The amount of recovered uranium from the milling process varies because ores from different sources react differently to chemical processes. For example, in milling the Todilto ore into yellowcake, the purchaser\\u2014 Homestake \\u2014 was able to recover only 81.7 percent of the U308 contained in the ore.\\\"\\n(d) Tufco and Todilto sold raw ore. The price paid by the third party for the raw ore was based on the U308 contained in the raw ore. \\\"The agreements provided for an assay of the raw ore so that the U308 content of the raw ore could be determined before sale to the purchaser.\\\"\\nThe taxable event, see Section 7-26-7, was the sale of raw ore to a third party. The price paid was based on U308 content in the raw ore and this was determined by assay prior to sale. Tufco and Todilto contend that taxable value is to be determined by the U808 content at the time of the sale. Under this approach, the U308 lost during the milling process is not involved in determining taxable value of what was sold in the raw state. The tax collector does not dispute that Tufco and Todilto sold raw ore, unmilled. Nevertheless, the tax collector contends that taxable value is to be determined by U308 recovered after milling. Under this approach, the U303 lost during milling is involved in determining taxable value.\\nThe difference in the contentions is significant. Under Section 7-26-4(F), the taxable value is based on sales price per pound. This is determined by dividing the poundage into the price paid. Tufco and Todilto would use the poundage sold as the divisor; the tax collector would use the poundage recovered as the divisor. The tax collector's \\\"approach results in a higher tax because the divisor into the total amount received for the uranium ore sold is smaller than the Taxpayers' divisor. The result is that a higher price per pound is achieved with a resulting higher tax rate \\\"\\nThe tax collector seeks to justify its position by reading certain words as interchangeable in the two statutes. Section 7-26-7 refers to U308 \\\"contained in and recoverable from severed and saved uranium-bearing material\\\". Section 7-26-4(F) refers to U308 \\\"contained in the severed and saved or processed uranium\\\". The parties do not dispute that the words \\\"contained in\\\" and \\\"recoverable\\\" are used interchangeably in Section 7-26-7. The tax collector asserts that \\\"contained in\\\" and \\\"processed (recoverable)\\\" are used interchangeably in Section 7-26-4(F). \\\"The statute [7-26 \\u2014 4(F) ] uses the disjunctive 'or' to indicate that the taxable value is to be determined by reference to either the 'recoverable' or 'contained in' amounts Thus, the terms 'contained in' and 'recoverable' have been equated by the legislature.\\\"\\nThe tax collector misreads the statutes. The wording of the two statutes differs. Section 7-26-7 deals with how the tax is measured. Section 7-26-4(F) deals with taxable value. The measure of the tax is applied to taxable value; the measure applies only after taxable value is determined. Statutory wording as to the measure is not a basis for disregarding the wording as to taxable value.\\nSection 7-26-4(F) reads: \\\"The taxable value to be reported for severed and saved uranium-bearing material is the sales price per pound of the content of U308 contained in the severed and saved or processed uranium \\\" United Nuclear Corp. v. Revenue Div., Etc., 98 N.M. 296, 648 P.2d 335 (Ct.App.1982), held that this language was unambiguous, and lack of ambiguity is the view of the tax collector at this point in these appeals. Section 7-26-4(F) states that taxable value is the sales price of U308 contained in severed and saved uranium or the sales price of U308 contained in processed uranium. There was no sales price for processed uranium; Tufco and Todilto did not sell processed uranium. The only sales price on which taxable value was to be reported was the price of the severed and saved raw unprocessed ore. The taxable event was that sale.\\nThe hearing examiner determined taxable value on a taxable event that never occurred. The hearing examiner disregarded the uncontradicted fact that sales price was based on raw ore; it determined taxable value on the basis of recovered ore. If there had been a sale of processed uranium, then the taxable value would be based on the sale price for the processed uranium. That is not the situation in this case.\\nThe tax collector seeks to avoid this result. The arguments and our answers follow.\\n(a) The assessments were presumptively correct. The presumption was overcome by the tax collector's misapplication of Section 7-26-4(F). See \\u00a7 7-l-25(D)(3).\\n(b) Statutes are to be interpreted to be internally consistent; to interpret Section 7-26-4(F) to refer to U308 contained in the raw ore while interpreting Section 7-26-7 to refer to the U308 recoverable from the ore \\\"would yield an internally inconsistent result since both sections refer to both contained in and recoverable amounts.\\\" This argument is based on the tax collector's misreading of the statute. Taxable value can be based on either the U308 contained in the raw ore or in the processed ore; it depends on the taxable event, in these cases, what was sold. Measuring the tax on the basis of recovered U308 is not inconsistent with determining taxable value on the basis of what was sold.\\n(c) Our holding is that taxable value, under the facts of this case, should have been determined on the basis of the U308 content of the severed and saved raw ore. The tax collector asserts this holding results in inconsistent treatment between those who sell raw ore and those who sell ore after it is milled into yellowcake. The tax collector also asserts that this holding is contrary to Section 7-26-4(F)\\nwhich states that the taxable value is to be based on the sales price for U308 content \\\"regardless of the form in which the product is actually disposed of\\\". This language indicates that the legislature intended that the taxable value reflect the U308 actually recovered whether the U308 was sold in ore or sold as U308.\\nThese contentions are also based on the tax collector's misreading of the statute.\\nThe form in which the product is sold may vary. It may be ore or solution. See \\u00a7 7-26-7. The ore may be sold raw or after being milled into yellowcake. Section 7-26-4(F) provides that the form does not matter. Whatever the form, taxable value depends on sales price per pound of the U308 content contained in the uranium sold. The taxable event in this case was the sale. The taxable event could also be transportation out of New Mexico or the consumption of uranium-bearing material. Section 7-26-7. These taxable events can occur without any milling and thus without any processed ore. Should a taxable event occur without a sale, Section 7-26-4(F) provides that taxable value shall be gross value, and gross value may be the value of U808 in either raw ore or yellowcake. The provisions for determining taxable value are not tied to processed or \\\"actually recovered\\\" ore. Taxable value is tied to a taxable event and being so tied provides consistent treatment to all because taxable value depends on value at the time of the event triggering the tax.\\nThe arguments of the tax collector in the foregoing paragraphs (b) and (c) represent a shift in position \\u2014 from lack of ambiguity in Section 7-26-4(F) to the need for interpretation. If the tax collector is correct, and the statute requires interpretation, this approach works against the tax collector.\\nThe issue is the proper method of determining taxable value. This issue does not involve a deduction or exemption from tax which is construed in favor of the taxing authority. Reed v. Jones, 81 N.M. 481, 468 P.2d 882 (Ct.App.1970). This issue involves the appropriate means of valuing property for tax purposes. Any ambiguity in the statute as to this situation is strictly construed against the State and resolved in favor of the taxpayer. Molycorp, Inc. v. State Corporation Commission, 95 N.M. 613, 624 P.2d 1010 (1981); Kerr-McGee Nuclear Corp. v. Property Tax Division, 95 N.M. 685, 625 P.2d 1202 (Ct.App.1980); Westland Corporation v. Commissioner of Revenue, 83 N.M. 29, 487 P.2d 1099 (Ct.App.1971); Field Enterprises Educational Corp. v. Commissioner of Revenue, 82 N.M. 24, 474 P.2d 510 (Ct.App.1970).\\nIf the provisions of Section 7-26-4(F) concerning taxable value are ambiguous and require interpretation, the ambiguity is to be construed against the tax collector. Under this approach, our holding is the same; taxable value should have been determined on the basis of the U3O8 content of the severed and saved raw ore. The hearing examiner's decision as to taxable value is erroneous.\\nB. Reimbursement for Increase in Severance Tax\\nThe assessment of severance tax and interest against HNG is based on amounts that HNG was reimbursed due to an increase in the severance tax.\\nHNG sold yellowcake to an out-of-state third party pursuant to a contract entered in 1976. The contract did not provide for a fixed dollar amount per pound of yellow-cake; rather, price was determined by a pricing formula involving several factors. The contract did provide that if certain taxes, including the severance tax, were increased subsequent to July 1, 1976, the increased taxes would be separately billed and the third party would reimburse HNG for the amount of the increased tax.\\nNew Mexico increased the severance tax in 1977. The tax stated in Section 7-26-7(A) reflects the increased tax rate. We have not quoted this tax rate because it is not material to the issues presented.\\nThe unchallenged findings of the hearing examiner outline HNG's procedures.\\n(a) At the time yellowcake was received by the third party outside of New Mexico, the third party received an invoice (invoice I) for the pounds shipped, on the basis of the pricing formula in the contract.\\n(b) After invoice I was paid,. HNG paid severance tax on the basis of 'the amount received under invoice I.\\n(c) HNG then separately sent the third party another invoice. This invoice II was for \\\"an amount equal to the incremental increase in severance taxes occuring [sic] after July 1, 1976.\\\" The third party then paid HNG on the basis of invoice II.\\n(d) HNG \\\"did not report, and it did not pay severance tax . on the amounts received pursuant to invoice II's \\\"\\n(e) \\\"Taxpayer [HNG] did not issue invoice II's to GSU [the third party] for severance taxes until after the uranium concentrate had been shipped out-of-state, title and risk of loss had passed, the initial invoice (invoice I's) for the uranium concentrate had been issued and paid, and Taxpayer [HNG] had paid severance tax on its receipts from invoice I's.\\\"\\nUnder the above findings, HNG has obtained reimbursement from its purchaser for the amount of the tax increase, but has not paid severance tax on the amount reimbursed. The correctness of the assessment depends upon whether the severance tax applies to the amount reimbursed. This issue involves only the first level of reimbursement; additional tax for subsequent reimbursements is not involved. See United Nuclear Corp. v. Revenue Div., Etc.\\nHNG asserts that the amount reimbursed is not part of the taxable value of the yellowcake sold; the assessment includes the reimbursement in taxable value. See \\u00a7 7-26-4(F). United Nuclear Corp. v. Revenue Div., Etc. held that the definition of taxable value (the first sentence in Section 7-26-4(F)) was not ambiguous, \\\"[i]t means that the taxpayer must include in the taxable value all monies, including the amount of severance tax that it has billed the customers.\\\" The hearing examiner relied on United Nuclear Corp. in denying the protest. HNG contends that United Nuclear Corp. is distinguishable on the facts, and the factual distinction results in that decision being inapplicable.\\nHNG's arguments, and our answers, follow.\\n(a)The reimbursement received by HNG was not consideration for the yellowcake.\\nHNG asserts that the taxable value of the yellowcake was established by the price in the 1976 contract, which was prior to the increase in the tax. It points out that the effective date of the sales contracts is not stated in United Nuclear Corp. It argues that the reimbursement it received due to the tax increase added nothing to the value. It also argues that the reimbursement provision in the 1976 contract could not have been designed to secure HNG any additional income; it was designed to ensure that HNG \\\"might net the same proceeds it would have realized if no tax increase had ever been passed.\\\" These arguments need not be answered on the basis of consideration under contract law because Section 7-26-4(F) presumes taxable value means the total amount of money received. Part of the money received pursuant to the 1976 contract was reimbursement for the increased tax. As United Nuclear Corp. points out, the amount added because of the tax is paid to get the goods (the yellow-cake). Assuming, but not deciding, that the taxable value was established by the price in the 1976 contract, that price is not limited to the pricing formula but includes the provision to reimburse HNG for the increased tax.\\n(b) Reimbursement of the tax increase is different from reimbursement of the total severance tax.\\nUnited Nuclear Corp. indicates that the contracts there involved provided for reimbursement of the entire severance tax. HNG's reimbursement was for the tax increase. HNG states that the customer's payment of 100% of the tax from the inception of the contract is appropriately characterized as consideration because, if not held to be consideration, the 100% pass-through shifts the incidence of the tax from the severer to the buyer. HNG asserts reimbursement limited to the tax increase does not increase the value of the yellowcake sold and provides no economic benefit to HNG. The implication in this argument is that if there is no change in value, there is no shift in the incidence of the tax. The legal incidence of the tax increase falls on HNG. United Nuclear Corp. It was HNG that received the reimbursement. The reimbursement was money received pursuant to the contract. The money received is presumed to be taxable value. A partial, rather than total, reimbursement does not change this presumption and provides no basis for HNG to be treated differently from the taxpayers in United Nuclear Corp.\\n(c) The statute deals specifically with reimbursements of increases in the severance tax.\\nThis argument is based on Section 7-26-7(B), quoted in full in United Nuclear Corp. Section 7-26-7(B) provides that notwithstanding the tax increase provisions in Section 7-26-7(A):\\n[A] taxpayer may elect, prior to August 1, 1977, to register with the bureau [division] of revenue any bona fide arms length contract for the sale of uranium-bearing material entered into prior to January 1,1977, which does not allow the taxpayer to obtain reimbursement for all of the additional taxes imposed by Subsection A of this section.\\nSales pursuant to a registered contract have a lower tax rate through 1984. HNG does not claim that Section 7-26-7(B) applies to its sale contract. It cites this section because the above-quoted provision uses the word \\\"reimbursement\\\". It asserts that Section 7-26-7(B) recognizes that reimbursement in the statute means something other than consideration for the yellowcake sold.\\nHNG's argument overlooks the statutory wording. Taxable value in Section 7-26-4(F) is presumed to mean \\\"the total amount of money and the reasonable value of other consideration received\\\". Section 7-26-7(B) is consistent. It provides:\\nThe taxpayer's right to have his liability determined under this subsection shall terminate if the registered contract is or has been amended in any manner after January 1, 1977 and the effect of the amendment is to increase the total amount of money and the reasonable value of other consideration, or either of them, received\\nSection 7-26-7(B) does not exclude reimbursement for the tax increase from the total amount of money received; rather, it includes reimbursement for the tax increase within the total amount of money received.\\n(d) If the reimbursement for the increased tax is held to be part of the consideration, then HNG has established another value.\\nThis argument involves the provision in Section 7-26-4(F) which reads:\\nIt is presumed, in the absence of preponderant evidence of another value, that the taxable value means the total amount of money and the reasonable value of other consideration received, or either of them, for the severed and saved uranium ore or processed uranium \\\"yellowcake\\\" concentrate.\\nHNG asserts that it established, by preponderant evidence, that taxable value was other than the total amount of money received. It relies on the pricing formula in the 1976 contract, reimbursement for the amount of the tax increase, the billing of the increase by separate invoice and its practice of treating the reimbursement as proceeds \\\"separate and distinct from what it received for the uranium concentrate.\\\" The hearing examiner found this contention to be without merit; it could properly do so. The 1976 contract is substantial evidence supporting the hearing examiner's finding. Under the contract, the reimbursement is part of the money received for the sale of yellowcake.\\n(e) Including the reimbursement money in the taxable value is inconsistent with Section 7-26-7(A).\\nThis argument is based on the schedule as to the amount of the tax which is set forth in Section 7-26-7(A). We do not quote the schedule; it is quoted in United Nuclear Corp. HNG's argument is that by imposing severance tax on the amount of the reimbursement, the tax exceeds that stated in the schedule. The argument is fallacious because HNG inserts the reimbursement money in the wrong place. HNG figures the tax on the reimbursement pursuant to the tax schedule; it should have included the reimbursement within taxable value per pound. The tax schedule is applied to taxable value per pound. When the reimbursement is included in taxable value per pound, there is no inconsistency.\\nThe hearing examiner correctly denied HNG's protest of the severance, tax assessment.\\nResources Tax\\nHNG was reimbursed for the amount of the severance tax increase. It did not include the reimbursed amount in \\\"taxable value\\\" in figuring the resources tax. The assessment for resources tax and interest is based on this reimbursement. HNG claims this assessment was erroneous. Its arguments, and our answers, follow.\\n(a) Taxable value is the same under both the resources tax and the severance tax.\\nWe agree. The definition of \\\"taxable value\\\" for both taxes is essentially the same. Compare \\u00a7 7-25-3(1) with \\u00a7 7-26-4(F). On the basis that the definitions are essentially the same, HNG contends that its arguments for excluding the reimbursed severance tax from taxable value for severance tax purposes also apply in excluding the reimbursed severance tax from taxable value for resources tax purposes. We have answered these arguments in holding that the reimbursement was not excluded for severance tax purposes; the answers need not be repeated in holding that the reimbursement is not excluded for resources tax purposes.\\n(b) Tax calculations required if the tax collector's position is upheld results in inordinate administrative difficulties.\\nThe claim of inordinate administrative difficulties is based on the interrelationship of three taxes on natural resources. The three taxes are the severance tax, the resources tax and the oil and gas conservation tax. See \\u00a7 7-30-5(C). HNG points out that a reimbursement for the increased severance tax increases taxable value for both the severance tax and the resources tax. HNG describes this as \\\"a never-ending cycle of one tax increasing the other (which in turn increases the first) *'' HNG then points out that in case of uranium, taxable value under the oil and gas conservation tax is based on the taxable value for resources tax purposes. HNG states: \\\"There is absolutely no way a taxpayer of average intelligence could calculate his extractive tax liabilities with this three-tax relationship.\\\"\\nNo issue of inordinate administrative difficulties was raised at the formal hearing. Section 7-l-25(A). The absence of any issue as to the interrelationship of the three taxes is illustrated by the unchallenged finding: \\\"[T]he Taxpayer contends that the Department's position makes it impossible to make normal tax calculations. However, it was agreed by all parties that if the Department's positions on the tax assessments are correct, the taxes have been correctly calculated.\\\"\\nHere, HNG seeks to raise an administrative burden issue for the first time in the appeal, but has conceded that the assessment involved in the appeal has been correetly calculated. The question of administrative burden is not an issue in this appeal.\\n(c) Time of attachment of the taxes.\\nHNG asserts that if the taxable event for the severance and resources taxes is the same event, so that the two taxes attached simultaneously, the taxes do not apply to each other. On this basis, HNG contends that the reimbursement for the severance tax is not includable in taxable value for purposes of the resources tax. This argument overlooks the fact that the legal incidence of both taxes is upon HNG. See United Nuclear Corp. and \\u00a7 7-25-4. In a similar situation, Gurley v. Rhoden, 421 U.S. 200, 95 S.Ct. 1605, 44 L.Ed.2d 110 (1975), stated: \\\"[E]ven if the liability for the excise taxes did arise simultaneously with the sales tax, we cannot see any legal distinction, constitutional or otherwise, arising from that circumstance.\\\"\\nAlternatively, HNG argues that the two taxes did not arise simultaneously, that each tax is based on a different taxable event. Assuming, but not deciding, that there were different taxable events, HNG fails to recognize that each tax is imposed on taxable value at the time of the taxable event. Taxable value for each of the taxes is based on the total amount of money received. The money received, under each tax, includes the reimbursement for the increased severance tax.\\nThe hearing examiner correctly denied HNG's protest of the resources tax assessment.\\nCompensating Tax\\nThe assessments of compensating tax, interest and penalty against Tufco and HNG are based on property purchased outside of New Mexico but used in New Mexico in the mine operations of the two taxpayers in severing uranium ore. Neither taxpayer reported or paid any compensating tax as to this property. There are two issues: Liability for compensating tax, and liability for the assessed penalty. We hold that the taxpayers are not liable for the compensating tax. Accordingly, we do not consider arguments as to the propriety of assessing a penalty.\\nThe Resources Excise Tax Act provides for three taxes \\u2014 resources tax, processors tax and service tax. Sections 7-25-4, 7-25-5 and 7-25-6. Both taxpayers are subject to the resources tax; both are severers of natural resources and are taxed for the privilege of severing natural resources.\\nSection 7-9-35 provides an exemption for persons subject to the Resources Excise Tax Act. The exemption reads:\\nWhen a privilege tax is imposed by the Resources Excise Tax Act [7-25-1 to 7-25-9 NMSA 1978], the provisions of the act shall apply and determine the full measure of tax liability for the privilege of engaging in the business stated in the act and no provision of the Gross Receipts and Compensating Tax Act shall apply to or create a tax liability for such privilege, except as is provided in Section 7-25-8 NMSA 1978.\\nThe exception to the exemption in Section 7-25-8 applies to nonfissionable natural resources and is not applicable.\\nThe tax collector contends that Section 7-9-35 is simply not involved. This contention is based on the view that the property purchased out-of-state was not subject to the resources tax and thus Section 7-9-35 is not applicable. This contention is frivolous. The resources tax, Section 7-25-4, is based on the taxable value of natural resources; it is not based on the component parts of the property used in severing the natural resources.\\nSection 7-9-7, the compensating tax, imposed a tax on the privilege of using property in New Mexico. There is no dispute that both taxpayers used the property in New Mexico, Section 7-9-3(L), and that this property was used as an integral part of their mining operations.\\nTufco and HNG claim they are exempted from the compensating tax by Section 7-9-35. The hearing examiner ruled that the exemption did not apply because the privilege taxed by the resources tax is not the same as the privilege taxed by the compensating tax. We do not agree with the hearing examiner.\\nSection 7-9-35 provides:\\n(a) The privilege tax imposed by the resources tax determines the full measure of tax liability for the privilege of engaging in the business of severing natural resources.\\n(b) No provision of the Gross Receipts and Compensating Tax Act creates a tax liability for \\\"such privilege\\\", which is the privilege of engaging in the business of severing natural resources.\\n(c) No provision of the Gross Receipts and Compensating Tax Act applies to \\\"such privilege\\\".\\nThe tax collector would subdivide a taxpayer's activity into various categories so that the word \\\"privilege\\\" in Section 7-9-35 would be given a very narrow meaning. Under the tax collector's approach, the privilege of severing natural resources is one privilege, and the privilege of using property in New Mexico is another. If successful in this approach, the tax collector could then argue that the privilege of severing natural resources is distinct from selling the severed resources so that there would be no exemption from the gross receipts tax. However, such a distinction, for gross receipts tax purposes is foreclosed. J.W. Jones Construction Co. v. Revenue Division, Dept. of Taxation and Revenue, 94 N.M. 39, 607 P.2d 126 (Ct.App.1979), held:\\nIt [Jones] is liable for any resources tax unpaid on materials extracted from contractor-designated pits and used on the highway projects. Concommitantly, Jones is entitled to the exemption from gross receipts tax of the amount of contract receipts attributable to its use of contractor-designated pit material\\nSee also Carter & Sons, Inc. v. N.M. Bureau of Revenue, 92 N.M. 591, 592 P.2d 191 (Ct.App.1979); Patten v. Bureau of Revenue, 86 N.M. 355, 524 P.2d 527 (Ct.App.1974).\\nInasmuch as Section 7-9-35 applies to exempt from the gross receipts tax the receipts from sale of severed resources, should the compensating tax be treated dif ferently? The tax collector contends the compensating tax should be treated differently because, if not, \\\"no tax at all will be charged by New Mexico on the purchase of the equipment.\\\" This argument disregards the fact that no gross receipts tax will be collected on the sale of the natural resources severed.\\nWe recognize that the incidence of the gross receipts tax is on the seller, Section 7-9-4(A), and the incidence of the compensating tax is on the buyer, Sections 7-9-7 and 7-9-9. See Edmunds v. Bureau of Revenue, 64 N.M. 454, 330 P.2d 131 (1958). However, Western Electric Co. v. N.M. Bureau of Revenue, 90 N.M. 164, 561 P.2d 26 (Ct.App.1976), states: \\\"[T]he legislature intended to make our gross receipts tax and our compensating tax correlates: an exemption from the gross receipts tax must also be treated as an exemption from the compensating tax.\\\" Compare Union County Feedlot, Inc. v. Vigil, 79 N.M. 684, 448 P.2d 485 (Ct.App.1968).\\nSection 7-9-35 states that no provision of the Gross Receipts and Compensating Tax Act applies to the \\\"privilege of engaging in the business\\\" when the resources tax applies. The business of both taxpayers is severing natural resources. The definition of \\\"severing\\\" includes mining or producing any natural resources in New Mexico for sale or profit. Section 7-25-3(H). Property used in the mine operations of the taxpayers as an integral part of the mining operation is used in the business of severing. See Carter & Sons, Inc. v. N.M. Bureau of Revenue; Patten v. Bureau of Revenue.\\nThe statement in Section 7-9-35 that no provision of the Gross Receipts and Compensating Tax Act applies is similar to the \\\"in lieu of\\\" provision discussed in Santa Fe Downs, Inc. v. Bureau of Revenue, 85 N.M. 115, 509 P.2d 882 (Ct.App.1973). The hearing examiner's decision, that the exemption did not apply, is erroneous.\\nThe decision denying the protests of Tufco and Todilto to the severance tax assessments is reversed. The decisions denying the protests of Tufco and HNG to the compensating tax assessments are reversed. The decision denying the protests of HNG to the severance tax and resources tax assessments is affirmed.\\nIf the taxpayers are to be treated fairly, Tufco and Todilto should recover their appellate costs, and HNG should recover a portion of its appellate costs. However, such fairness is foreclosed by the Supreme Court's interpretation of Section 7-l-25(B) in New Mexico Bureau of Revenue v. Western Electric Co., 89 N.M. 468, 553 P.2d 1275 (1976). Accordingly, no appellate costs may be recovered. See Addis v. Santa Fe Cty. Valuation Protests Bd., 91 N.M. 165, 571 P.2d 822 (Ct.App.1977).\\nIT IS SO ORDERED.\\nHENDLEY and DONNELLY, JJ., concur.\"}"

nm/1589282.json

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+"{\"id\": \"1589282\", \"name\": \"FIDELITY AND CASUALTY COMPANY OF NEW YORK, a Corporation, Plaintiff-Appellee, v. A. R. ANGIER, d/b/a Coronado Courts, Defendant-Appellant\", \"name_abbreviation\": \"Fidelity & Casualty Co. v. Angier\", \"decision_date\": \"1955-03-10\", \"docket_number\": \"No. 5823\", \"first_page\": \"191\", \"last_page\": 195, \"citations\": \"59 N.M. 191\", \"volume\": \"59\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T22:02:17.223163+00:00\", \"provenance\": \"CAP\", \"judges\": \"COMPTON, C. J., and LUJAN, McGHEE and KIKER, JJ., concur.\", \"parties\": \"FIDELITY AND CASUALTY COMPANY OF NEW YORK, a Corporation, Plaintiff-Appellee, v. A. R. ANGIER, d/b/a Coronado Courts, Defendant-Appellant.\", \"head_matter\": \"281 P.2d 149\\nFIDELITY AND CASUALTY COMPANY OF NEW YORK, a Corporation, Plaintiff-Appellee, v. A. R. ANGIER, d/b/a Coronado Courts, Defendant-Appellant.\\nNo. 5823.\\nSupreme Court of New Mexico.\\nMarch 10, 1955.\\nDean S. Zinn, Santa Fe, for appellant.\\nF. Gordon Shermack, Santa Fe, for appellee.\", \"word_count\": \"1756\", \"char_count\": \"10490\", \"text\": \"SADLER, Justice.\\nThe plaintiff (appellee) recovered a money judgment against defendant for adjusted premium due on a workmen's compensation policy. Feeling himself aggrieved he brings the matter before us on appeal for a revision and correction of the judgment so entered against him.\\nThe trial was before the court without a jury and resulted as indicated above. In a decision filed the court made certain findings of fact and conclusions of law upon which it based its judgment. The findings are not complicated and their substance will be stated.\\nThe defendant owned a motel known as Coronado Courts on the outskirts of Santa Fe. When about to begin certain construction on his premises in May, 1949, he applied for and was issued two policies of insurance through plaintiff's local agent in Santa Fe. One of them was a standard workmen's compensation and employers' liability policy, identified as C-6985702 and known as \\\"C-Policy.\\\" The other was a comprehensive liability policy, referred to as the \\\"XP-Policy.\\\" Each policy was to cover a period of one year from May 18, 1949.\\nSince the amount of the premium on each policy was to be graduated according to the payroll of defendant, an unknown factor in the beginning, the first billing for premium was based on an estimated payroll, the amount of the premium for this purpose being $144.33 for C-Policy and $44.13 for Policy XP-633306. The defendant paid these estimated premiums upon receipt of statements therefor, subject to a later billing based on audit of defendant's payroll at end of the policy period.\\nSubsequently, and in due course, the plaintiff, through one of its auditors, made the audit contemplated for the policy year ending May 18, 1950. The audit was made in defendant's presence and upon completion was signed and approved by him. Due to lack of certain essential forms therefor, the audit on the XP-Policy was not made at the same time as that for the C-Policy. Thereafter, on two occasions, on August 3, 1950, and on September 12, 1950, the auditor mentioned made two requests on defendant for the right to inspect his books and records preliminary to an audit in reference to the XP-Policy mentioned. Both requests being refused, the plaintiff's auditor prepared an estimated audit based on the previous one made as to C-Policy, the figures for both audits remaining constant. Both were then forwarded to the Kansas City office of plaintiff for computation of the rates applicable and the premium due on the XP-Policy.\\nBased upon the audits mentioned, the defendant was billed for additional premiums, as follows: On C-Policy the sum of $550.22 and on XP-Policy the sum of $215.74. Though often requested, the defendant declined to pay any part of the additional premiums.\\nThe original audits made by plaintiff's auditor, as hereinabove stated, were not produced at the trial, nor was there any showing that they were not in existence or could not be produced by the exercise of reasonable diligence. Indeed, the plaintiff made no effort to support the original audits for purposes of the trial. The amount of premium to be paid under each policy is variable and cannot be determined from the policy itself and a knowledge of the amount rests peculiarly with plaintiff.\\nThe defendant was under the mistaken impression that the amounts of estimated premiums were the limit of his obligations under the terms of the policies. He never had any dispute as to the correctness of the audit made until the date of filing his answer and then, only, as to the rates of premiurns charged. However, the local agent for plaintiff verified such rates, at defendant's request, as being correct, after careful rechecking by him of the legal rates applicable to the figures shown in such audits. With reference to the so-called XP-Policy there is no legal evidence before the court as to the accuracy, correctness, details or results of the claimed audit.\\nHaving found the foregoing facts the court concluded that the defendant became bound and obligated under the terms of the policies to the extent of the actual payroll of defendant's employees during said period; that defendant accepted said policies and was bound by the terms thereof. Such policies provided for the collection of various premiums based on defendant's estimated payroll of employees for the policy period but the advance premium paid did not constitute payment in full under the policies. The final and decisive conclusions were Nos. 5 and 6, reading:\\n\\\"5. That the defendant is indebted to the plaintiff, under the provisions of the C Policy in the sum of $550.22, together with interest at 6% per annum, from the 18th day of May, 1950.\\n\\\"6. That the defendant is not indebted to the plaintiff under the provisions of the XP Policy, because of failure of proof.\\\"\\nJudgment was entered, accordingly, against the defendant in plaintiff's favor in the sum of $550.22. It is for the reversal thereof that this appeal is prosecuted by the defendant.\\nIt is clear from the foregoing findings that notwithstanding the failure on plaintiff's part to produce the original audits, the trial court deemed the evidence sufficient as to warrant judgment for premium on C-Policy and insufficient to support a judgment for the final premium due on XP-Policy.\\nThe defendant, as appellant, presents but two claims of error as grounds for reversal of the judgment against him. They are (1) that there is no substantial evidence to support the judgment as to the C-Policy; and (2) that the trial court abused its discretion in granting plaintiff a continuance when the cause first came on for trial. We shall deal with them in the order stated.\\nUnquestionably, counsel for defendant rests his challenge to the sufficiency of the evidence to support the judgment for balance of premium- on C-Policy on the trial court's finding No. 8. It recites failure of the plaintiff to produce the original audits furnishing data for calculating balance of premium due on each policy. As to XP-Policy, which extends comprehensive liability, the defendant appears in poor position to make capital out of plaintiff's failure to produce the original or copy of any audit, in view of his failure, after two requests, to permit plaintiff to see his books and records for the purpose of making an audit. This he was obligated to do under the terms of his policy. Be that as it may, the defendant is in no way prejudiced, there being no judgment against him for a balance of premium on this policy.\\nThe situation is different, however, as to unpaid premiums on C-Policy. If, actually, the original audits of defendant's books and records had furnished sole proof of the correctness of premium calculations, the exclusion from evidence of original, or authentic copies thereof, where best evidence not available, would have been fatal to recovery. Where, however, other evidence in the form of testimony and admissions leaves no doubt as to correctness of the amount of premium claimed, then the failure to get in evidence the original audit on which the premium calculation was based, is of little consequence. That is exactly the situation in the case before us.\\nBoth the local agent of the plaintiff and its auditor as well were present and testified in person. The sole purpose of getting the audits in evidence, of course, was to verify correctness of the premium calculations made in Kansas City office of plaintiff, and thereby establish the amount unpaid. It was shown by plaintiff's local agent that the audit bore defendant's signature, that he made no complaint of the auditor's findings, himself furnishing the figures to the auditor. In fact, there was evidence that he had approved same. Certainly he never disputed its correctness and a letter from local agent giving correct amount of the premium based on to C-Policy sent defendant was put in evidence. He complained only of the rate and of a mistaken impression on his part that his initial payment was in full. The letter read:\\n\\\"As you requested, we have thoroughly checked our code numbers and rates under workmen's compensation policy with our Special Agent, and find that the additional premium of $550.22 is correct, as per your copy of the final audit.\\n\\\"Your early remittance will be greatly appreciated.\\\"\\nIn addition, there was extended testimony from Joe W. Alverson, Casualty Auditor for the plaintiff. It was he who made the audit in defendant's presence and from figures given him by defendant. The defendant admitted the audit was made in his presence and would not deny that he signed it. We are fully satisfied there was sufficient evidence, independently of the audit itself, to support the court's finding that the premium unpaid was the exact amount sued for and the amount due under terms of the policy. This claim of error is denied.\\nThe second claim of error is based upon the action of the trial court in granting a four-day postponement while the defendant's motion to dismiss was pending undisposed of. The purpose was to secure either a deposition from, or the presence of, the auditor who examined the plaintiff's records. Whether viewed as what in effect it was, the granting of a motion to reopen the case and take additional evidence; or, as a simple postponement, in either case, the court possessed a broad discretion in the premises and we see no abuse in its exercise of that discretion. 17 C.J.S., Continuances, \\u00a7 5-6, page 191; 12 Am.Jur. 450, \\u00a7 5, Continuances. See, also, Waldo v. Beckwith, 1 N.M. 182; Perea v. State Life Ins. Co., 15 N.M. 399, 110 P. 559; State Bank of Commerce v. Western Union Tel. Co., 19 N.M. 211, 142 P. 156, L.R.A.1915A, 120.\\nIn view of the conclusion reached, it will be unnecessary to consider argument made by plaintiff that, regardless of trial court's' exclusion from evidence of the audit as to C-Policy, we should, nevertheless, consider it in evidence because erroneously excluded. Compare Supreme Court Rule 17(2).\\nIt is only fair to state that counsel representing appellee in this court did not represent him below. It follows from what has been said that the judgment should be affirmed.\\nIt is so ordered.\\nCOMPTON, C. J., and LUJAN, McGHEE and KIKER, JJ., concur.\"}"

nm/1590388.json

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+"{\"id\": \"1590388\", \"name\": \"George A. LETTEAU, Claimant, Plaintiff-Appellee, v. REYNOLDS ELECTRICAL AND ENGINEERING COMPANY, Employer, Pacific Employers Insurance Company, Insurer, Defendants-Appellants\", \"name_abbreviation\": \"Letteau v. Reynolds Electrical & Engineering Co.\", \"decision_date\": \"1955-12-03\", \"docket_number\": \"No. 5955\", \"first_page\": \"234\", \"last_page\": 239, \"citations\": \"60 N.M. 234\", \"volume\": \"60\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T02:11:37.106936+00:00\", \"provenance\": \"CAP\", \"judges\": \"COMPTON, C. J., and LUJAN and SADLER, JJ., concur.\", \"parties\": \"George A. LETTEAU, Claimant, Plaintiff-Appellee, v. REYNOLDS ELECTRICAL AND ENGINEERING COMPANY, Employer, Pacific Employers Insurance Company, Insurer, Defendants-Appellants.\", \"head_matter\": \"290 P.2d 1072\\nGeorge A. LETTEAU, Claimant, Plaintiff-Appellee, v. REYNOLDS ELECTRICAL AND ENGINEERING COMPANY, Employer, Pacific Employers Insurance Company, Insurer, Defendants-Appellants.\\nNo. 5955.\\nSupreme Court of New Mexico.\\nDec. 3, 1955.\\nSimms & Modrall, Joseph E. Roehl, George T. Harris, Jr., A. T. Seymour, Albuquerque, for appellants.\\nJoseph L. Smith, Henry A. Kiker, Jr., Robert H. Sprecher, Albuquerque, for appellee.\", \"word_count\": \"1818\", \"char_count\": \"10465\", \"text\": \"McGHEE, Justice.\\nThe defendant employer and insurer appeal from a judgment in favor of the plaintiff claimant under the Workmen's Compensation Act. It is the contention of appellants that the claimant failed to introduce any substantial evidence of a latent injury, and, therefore, that his claim for compensation for disability filed December 21, 1953, arising out of an accident which occurred on August 1, 1951, is barred by the statute of limitations contained in \\u00a7 59-10-13, N.M.S.A.1953 Compilation; that the trial court erred in refusing to grant their timely motions for a directed verdict on such ground.\\nThe claimant was employed as an electrician by the defendant employer at Los Alamos, New Mexico, on August 1, 1951. At that time the defendant, Pacific Employers Insurance Company, carried the employer's compensation insurance. This coverage expired under the policy on September 1, 1951, at which date coverage by another insurance company, Maryland Casualty Company, went into effect. . A judgment in this cause in favor of the claimant against the employer and Maryland Casualty Company has been satisfied and is not of issue on this appeal.\\nOn August 1, 1951, claimant was engaged in threading pipe in connection with installation of underground works. He was attempting to tighten a vise which was closed and opened by inserting an iron bar about a foot long through certain holes. Leverage to operate the vise was gained by turning the bar. The bar slipped and struck claimant's left knee, thus causing him to lose his balance and twist his leg at the same time.\\nImmediately after this accident claimant filled out an accident report and Was sent to the Los Alamos Hospital by the work foreman. Claimant was seen by two doctors there, but was unable to identify one of them. However, the other, Dr. Oakes, examined claimant, took x-rays, and advised claimant he had water on the knee and possibly a strain of the muscles. After giving claimant a bandage for the knee, Dr. Oakes told him to get a heat lamp and apply heat to the knee for relief of pain one or more times during the night. He said the water on the knee would dry up in time; that there was possibly a strain of the muscles and the knee would be sore where it had been hit; that claimant would get over it. Claimant saw this doctor a short time later in connection with this injury and was told by the doctor to return again if the knee bothered him,\\nThe claimant did not return to Dr. Oakes until June 7, 1953. A written report made by Dr. Oakes to a \\u2022 claims service agent by letter of April 5, 1954, was introduced in evidence and contains this description of claimant's visits to him:\\n\\\"On August 28th, 1951, he (claimant) was seen by me at which time I stated that he had a good tight knee with pain along the lateral ligaments. Impression was knee strain and an elastoplast strapping was applied and he was to return in one week. The elastoplast was removed September 4th, 1951, he was advised to use heat at home and to return to see us again in one week. He was not seen again until the 7th of June 1953 for this injury when he came into my office stating that he was still having trouble with tire left knee. Upon examination he was found to have a stable joint with pain over the medial cartilage produced by impingement of the medial collateral ligament. I felt that this was a torn medial cartilage and that it should be excised. \\\"\\nThe claimant testified the knee was sore and painful during the year 1951 from the time of the accident; that it caused him trouble in 1952 and that off and on during that year he wore his bandage and would take heat treatments in the evening with his heat lamp; that the pain at times during 1952 and the early part of 1953 would get worse in wet weather and that it would depend on the type of work he was doing. According to his testimony the knee continued to give sporadic trouble with occasional stiffness or locking of the knee right up to June of 1953, when a second incident involving the knee occurred.\\n' During June of 1953, while still working for the defendant employer, claimant had another accident. He was climbing a ladder and had gone up a couple of steps when his knee gave way or his foot slipped and he fell two or three feet off the ladder, again twisting the left knee. Another accident report was made out and in a short while claimant again went to see Dr. Oakes, who as noted in the report above, diagnosed the injury as a torn medial cartilage and recommended an operation. Later claimant went to a doctor in Santa Fe, whose diagnosis was the same.\\nClaimant has continued with his work as an electrician and at the time of trial was employed by an Albuquerque electrical construction company doing estimating work, a job which is easier for him because of his knee than that of a supervising journeyman electrician, the work he formerly did.\\nWhen asked why he did not file a claim for compensation or seek further medical attention prior to June, 1953, claimant testified he relied on Dr. Oakes' statement that he had water on the knee and possible muscle strain and would get over it.\\nIn support of the award it is argued by claimant that the cases of Anderson v. Contract Trucking Co., Inc., 1944, 48 N.M. 158, 146 P.2d 873, and Harlow v. Hare, 1947, 51 N.M. 326, 184 P.2d 300, establish the rule that where an erroneous medical diagnosis is given by a doctor to whom a claimant is sent by his employer, the claimant has a right to rely upon such erroneous diagnosis and that the erroneous diagnosis is what forms the basis for the finding of a latent injury. In order to get around our holding in Gonzales v. Coe, 1954, 59 N.M. 1, 277 P.2d 548, that a claimant who was continuously in pain from the time of injury until the time he made claim for workmen's compensation did not suffer a latent injury but was charged.at the time of the accident with notice of his disability, claimant points out that in the Gonzales case the claimant never went to a doctor and there was, therefore, no erroneous diagnosis.\\nClaimant has misinterpreted our earlier holdings. In the Anderson case we held that a claim for compensation benefits was not barred in respect of a latent injury which was not or could not with reasonable diligence have been discovered until after one year and 31 days from the date of the accident.\\nThe important thing is whether the injury was not or could not have been discovered with reasonable diligence. The early erroneous diagnosis in the Anderson and Harlow cases was simply one circumstance or factor, to be considered 'with all the others present, in ascertaining whether the injury to claimant could have been discovered by the exercise of reasonable diligence.\\nClaimant points to testimony of the medical experts to the effect that the second accident increased and revealed the symptoms of a torn cartilage, that the injury is one which is frequently diagnosed in the beginning as a sprain, and that true diagnosis cannot be made until the situation becomes worse with the passage of time.\\nBut, we said in Gonzales v. Coe, supra, that the mere fact that a claimant, from a medical standpoint, does not know the full extent of his injury does not relieve him from timely filing his claim for workmen's compensation.\\nWe think the following language from the case of Sanchez v. Bernalillo County, 1953, 57 N.M. 217, 257 P.2d 909, 912, points up the difference between the present case and the Anderson case, although it should be noted the Sanchez case made no direct ruling on the latent injury feature:\\n\\\"This case differs from the one before us in that in the Anderson case the workman was led to believe that his injury was trivial and he attributed his growing eye weakness to natural causes and advancing age. Suit was filed within the statutory period after the discovery by him of the seriousness of his injury and the court held it to have been filed in time. In the instant case, it was evident that the workman appreciated the seriousness of his injuries as early as a few months after the occurrence of the accident but he took none of the steps required of him by the statute to acquaint his employer with the fact that he had sustained a compensable injury, .\\n\\\" It will be remembered that the workman, Sanchez, sustained ' compensable injuries in 1946 from which he (it may be conceded) died in 1951, and that although he during these years continually complained about his declining health and increasing disability, with all of which he ever blamed the damage to his head sustained while working in the jail, he did nothing to claim or assert his right to compensation until two days before his death. \\\"\\nSo it is in this case. Claimant knew that his knee was injured in the first accident. He must have known, as. a reasonable person, that he had some disability, because after the accident and for twenty-two months he had sporadic pain in the knee which he treated with bandages and heat; his knee was weakened so that he developed a noticeable limp. Although when he last consulted Dr. Oakes, in 1951 he was asked to return if the knee continued to bother him, he did not return until after the second accident.\\nWe must agree with the appellants that the original accident and injury to claimant's knee were concurring incidents; that, claimant suffered pain, discomfort and disability in his knee from the date of the original accident; and the claimant knew the causal connection between the accident and injury from the date of the original accident. We must, therefore, conclude there was nothing substantial in the evi dence to establish a latent injury and that the claim was barred under \\u00a7 59-10-13, supra.\\nOur holding makes it unnecessary to notice other errors complained of by appellants. The cause is reversed and remanded with direction to the trial court to enter judgment dismissing plaintiff's claim. It is so ordered.\\nCOMPTON, C. J., and LUJAN and SADLER, JJ., concur.\\nKIKER, J., not participating.\"}"

nm/1594889.json

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+"{\"id\": \"1594889\", \"name\": \"In the Matter of Arturo J. GALLEGOS, An Attorney Admitted to Practice Before the Courts of the State of New Mexico\", \"name_abbreviation\": \"In re Gallegos\", \"decision_date\": \"1986-08-21\", \"docket_number\": \"No. 16453\", \"first_page\": \"496\", \"last_page\": 499, \"citations\": \"104 N.M. 496\", \"volume\": \"104\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T02:16:10.146802+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of Arturo J. GALLEGOS, An Attorney Admitted to Practice Before the Courts of the State of New Mexico.\", \"head_matter\": \"723 P.2d 967\\nIn the Matter of Arturo J. GALLEGOS, An Attorney Admitted to Practice Before the Courts of the State of New Mexico.\\nNo. 16453.\\nSupreme Court of New Mexico.\\nAug. 21, 1986.\\nVirginia Ferrara, Chief Counsel, Disciplinary Bd., Albuquerque, for Board.\\nArturo J. Gallegos, Albuquerque, pro se.\", \"word_count\": \"1655\", \"char_count\": \"9841\", \"text\": \"OPINION\\nPER CURIAM.\\nThis matter came before this Court on July 22, 1986, after completion of disciplinary proceedings conducted pursuant to NMSA 1978, Rules Governing Discipline (Repl.Pamp.1985) wherein attorney Arturo J. Gallegos acknowledged having engaged in numerous acts of misconduct and agreed to the imposition of the sanction of disbarment. Gallegos was previously summarily suspended from the practice of law by this Court on April 10, 1985, pursuant to Rules Governing Discipline, Rule 12(a)(5)(i), pending the outcome of these proceedings. The hearing committee and the Disciplinary Board have accepted Gallegos' consent to disbarment and the Court adopts the Board's recommendation that he be disbarred and that certain costs be assessed against him.\\nIn 1982, Gallegos suggested to client James Haymon that he could invest money for Haymon and that Haymon could realize a large profit within twelve months. Haymon delivered $6,000.00 to Gallegos for this purpose, and Gallegos subsequently told him that the money had been invested in a real estate contract assigned to Haymon. After the twelve months had elapsed, Haymon requested the return of his money. Gallegos advised that the contract (a copy of which was never seen by Haymon) had been foreclosed upon and that Haymon's money was lost. Gallegos promised to repay Haymon but never did. Records pertaining to Gallegos' bank accounts indicate that Haymon's money was never placed in trust but went directly into Gallegos' office checking account, where it was apparently utilized by Gallegos for his own purposes. There is no evidence that the money was ever invested in a real estate contract. Such conduct is violative of NMSA 1978, Code of Prof.Resp., Rules 1-102(A)(3), 1-102(A)(4), 1-102(A)(6), 7-101(A)(3), 9-102(A), 9-102(B)(3), and 9-102(B)(4) (Repl.Pamp.1985).\\nIn another case, Gallegos was employed to represent petitioner Kay D. Vadala in a divorce action. The judgment awarded his client certain property in the possession of the respondent, who appealed the decision. Gallegos did not request a supersedeas bond or take any steps to enforce the judgment during the pendency of the appeal. When the judgment was ultimately affirmed, the property had been fraudulently conveyed to others by the respondent. Gallegos' client was forced to incur additional legal fees in efforts to gain possession of what was rightfully hers. These efforts were only partially successful. Gallegos advised the judge that he really had no idea how to proceed once the case was remanded, but he did not attempt to associate with counsel competent in such matters. Additionally, he totally ignored the frantic efforts of his client to reach him in order to have the case resolved. In this instance Gallegos' inaction and incompetence were violative of NMSA 1978, Code of Prof.Resp., Rules 6-101(A)(1), 6-101(A)(2), 6-101(A)(3), 7-101(A)(1) and 7-101(A)(3) (Repl.Pamp.1985).\\nMarta Torres retained Gallegos to represent her interests in the probate of her ex-husband's estate. She and the deceased had been co-owners of a liquor license and of certain real property; she wished to purchase his one-half interest in the license from the estate and to sell to the estate her interest in the real property. The Court approved Ms. Torres' purchase of the interest in the liquor license contingent upon her applying to the Department of Alcoholic Beverage Control to have the license transferred to her name. Ms. Torres had given Gallegos $150.00 for this purpose. Gallegos did not place the money in trust but deposited it in his personal account and converted it to his own use; he never submitted the appropriate forms to the Department of Alcoholic Beverage Control.\\nGallegos negotiated the sale of Ms. Torres' interest in the real property, and the buyer's attorney tendered to him a payment of $625.00 for Ms. Torres. Gallegos assured opposing counsel that the money would be held in trust pending the completion of the sale. He never advised his client of either the offer to purchase her property or of his receipt of the $625.00. When the transaction could not be consummated, opposing counsel requested a refund of the $625.00 paid by his client. Gallegos never returned this money; records pertaining to Gallegos' trust account show that the money was never deposited there.\\nGallegos' dishonest and unprofessional actions in the Torres cases violate NMSA 1978, Code of Prof.Resp., Rules 1-102(A)(3), 1-102(A)(4), 1-102(A)(6), 6-101(A)(3), 7-101(A)(3), 9-102(A), 9-102(B)(3) and 9-102(B)(4) (Repl.Pamp.1985).\\nGallegos was employed in 1982 by Heriberta Martinez to handle various probate matters; she entrusted to him the amount of $4,094.54, a small safe, and various documents. In January 1983, Ms. Martinez became dissatisfied with Gallegos' lack of action and discharged him as her attorney. In her letter of discharge to Gallegos, she requested that he send her money and other property to her new attorney. Approximately one month later, Gallegos delivered the documents and the safe to the new attorney and promised to deliver a trust account check for the $4,094.54 that afternoon. He delivered no check nor any money. The new attorney wrote and called Gallegos repeatedly for the next two months and finally threatened a lawsuit on behalf of the estate if the money were not returned. On April 29, 1983, Gallegos delivered in cash about half of the money entrusted to him but said he was holding the remainder in trust. The remaining funds, also in cash, were not delivered to the new attorney until mid-June 1983. Bank records show that the funds entrusted to Gallegos by Ms. Mar tinez were never placed in trust, and Gallegos acknowledges that he misappropriated them. Gallegos' conduct in this instance was violative of NMSA 1978, Code of Prof. Reap., Rules 1-102(A)(3), 1-102(A)(4), 1-102(A)(5), 1-102(A)(6), 9-102(A), 9-102(B)(3) and 9-102(B)(4) (Repl.Pamp.1985).\\nIn yet another case, Gallegos was retained by Juliette Ferrales to obtain a divorce for her. On October 14, 1981, the court granted the divorce, awarded custody of a minor child to Ms. Ferrales, and ordered the respondent to pay child support. Gallegos was directed to prepare a final decree. Gallegos claims to have prepared such a document and to have sent it to the respondent for his signature, but when he did not receive the document back he took no further action to have a decree entered. The case was subsequently dismissed for failure to prosecute. In September 1983, nearly two years later, Gallegos' client contacted him to request a copy of her divorce decree. Only then did Gallegos have the case reopened and a final decree entered. Such gross neglect by an attorney violates NMSA 1978, Code of Prof.Resp., Rules 6-101(A)(3) and 7-101(A)(1) (Repl.Pamp.1985).\\nIn October 1984, Luis Segovia paid Gallegos to represent him in a URESA action filed against him by the State of California. Gallegos never filed an answer to the URESA petition, and a default judgment was entered against Mr. Segovia in the amount of $23,362.50. Gallegos in this case committed violations of NMSA 1978, Code of Prof.Resp., Rules 6-101(A)(3), 7-101(A)(1), 7-101(A)(2), and 7-101(A)(3) (Repl.Pamp.1985).\\nGallegos prepared wills for Donna and Joseph Landis in 1982, and thereafter suggested to them that if they would each pay him $1,000.00 plus tax, he would probate their estates at the time of their deaths. Gallegos was paid the money. Mr. and Mrs. Landis subsequently wanted to make certain changes in their wills, but were unable to reach Gallegos. They then became concerned as to whether he would honor his agreement to probate their wills and wrote to the Disciplinary Board for assistance. It is clear that in this instance Gallegos simply defrauded his clients of over $2,000.00 in violation of NMSA 1978, Code of Prof.Resp., Rules 1-102(A)(3), 1-102(A)(4), 1-102(A)(6), 2-106(A) (Repl.Pamp.1985).\\nWe are appalled by the extent of Gallegos' misconduct and by the magnitude of the damage he has inflicted upon members of the public. Conduct of this sort by an attorney can lead only to disbarment. While Gallegos has conveyed to this Court an expression of regret and an apology for his actions, we can only hope that he will find some way to express his remorse to those persons whose cases he mishandled and whose money he misappropriated. In that the sanction of disbarment will be imposed, we have no wish to encourage Gallegos to apply for reinstatement by suggesting to him that the payment of restitution might insure his reinstatement at some point in the future. Any person whose dishonesty reaches heights such as these should not contemplate a career as an attorney.\\nIT IS THEREFORE ORDERED that the suspension of ARTURO J. GALLEGOS be revoked and that he be and hereby is disbarred pursuant to Rules Governing Discipline, Rule 11(a)(1).\\nIT IS FURTHER ORDERED that the Clerk of the Court publish this opinion in the State Bar of New Mexico News and Views and in the New Mexico Reports.\\nIT IS FURTHER ORDERED that Gallegos' compliance with Rules Governing Discipline, Rule 17 will not be required at this time in view of his earlier suspension pursuant to Rules Governing Discipline, Rule 12(a)(5)(i).\\nIT IS FURTHER ORDERED that in accordance with Gallegos' agreement and the recommendation of the Disciplinary Board, the costs of this action in the amount of $1,762.36 are assessed against him. These costs are to be paid to the Disciplinary Board on or before March 1, 1988.\\nIT IS SO ORDERED.\"}"

nm/1595014.json

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+"{\"id\": \"1595014\", \"name\": \"James D. ROMERO and L. Norene Romero, Plaintiffs-Appellees, v. U.S. LIFE INSURANCE COMPANY OF DALLAS, Defendant-Appellant\", \"name_abbreviation\": \"Romero v. U.S. Life Insurance\", \"decision_date\": \"1986-05-01\", \"docket_number\": \"No. 8550\", \"first_page\": \"241\", \"last_page\": 243, \"citations\": \"104 N.M. 241\", \"volume\": \"104\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T02:16:10.146802+00:00\", \"provenance\": \"CAP\", \"judges\": \"DONNELLY and GARCIA, JJ., concur.\", \"parties\": \"James D. ROMERO and L. Norene Romero, Plaintiffs-Appellees, v. U.S. LIFE INSURANCE COMPANY OF DALLAS, Defendant-Appellant.\", \"head_matter\": \"719 P.2d 819\\nJames D. ROMERO and L. Norene Romero, Plaintiffs-Appellees, v. U.S. LIFE INSURANCE COMPANY OF DALLAS, Defendant-Appellant.\\nNo. 8550.\\nCourt of Appeals of New Mexico.\\nMay 1, 1986.\\nPaul A. Phillips, Dan A. McKinnon, III, Marr\\u00f3n, McKinnon & Ewing, Albuquerque, for plaintiffs-appellees.\\nLeonard G. Espinosa, Moses, Dunn, Beckley, Espinosa & Tuthill, Albuquerque, for defendant-appellant.\", \"word_count\": \"1112\", \"char_count\": \"7040\", \"text\": \"OPINION\\nMINZNER, Judge.\\nA motion for clarification having been filed by plaintiffs, the prior opinion is withdrawn and the following is substituted.\\nDefendant brings an interlocutory appeal from the trial court's denial of its motion to dismiss for failure to state a claim. This court accepted two issues for review. They are: (1) whether the trial court erred in considering matters outside the record in ruling on the motion to dismiss; and (2) whether the trial court erred in failing to dismiss the complaint on the basis the claim was time-barred. We reverse.\\nFacts and Proceedings Below\\nOn March 7,1984, plaintiffs sued defendant, claiming damages by reason of the recording of a \\\"Notice of Subrogation\\\" on October 5, 1978. Defendant's notice indicated it was entitled to be subrogated to the rights of the Internal Revenue Service because defendant had paid a federal tax lien asserted against plaintiffs' property. Plaintiffs' complaint also alleged damages by reason of defendant's suit to foreclose the tax lien and the notice of lis pendens filed November 6, 1978. The prior litigation, in which this court denied defendant's right to subrogation, is reported at 98 N.M. 699, 652 P.2d 249 (Ct.App.1982).\\nDefendant's amended answer alleged, among other things, that plaintiffs' claim was barred by the statute of limitations; defendant subsequently moved to dismiss the complaint. After a hearing, both parties filed memorandum of law. Plaintiffs argued that their cause of action had not accrued until the foreclosure suit terminated. Defendant argued that, because the counterclaims had been dismissed, plaintiffs' cause of action had not been tolled. See King v. Lujan, 98 N.M. 179, 646 P.2d 1243 (1982). Plaintiffs also argued that defendant was estopped from relying on the statute because of its representation in the prior suit that the claim had been asserted prematurely.\\nThe trial court denied the motion on the ground that plaintiffs' counterclaims to defendant's foreclosure suit had tolled the statute of limitations. Alternatively, the trial court found that defendant was es-topped from asserting the statute. The trial court, however, certified issues for an interlocutory appeal. See NMSA 1978, \\u00a7 39-3-4. The trial court also granted plaintiffs' motion to amend their complaint. Discussion\\nOn appeal, defendant first contends that the trial court erred in failing to dismiss the complaint because the face of the complaint showed the claim was barred. Plaintiffs argue that their complaint and defendant's answer contained sufficient facts from which the trial court could have made its determination or, alternatively, that the trial court was entitled to take judicial notice of its own records. See NMSA 1978, Evid.R. 201 (Repl.Pamp.1983). Defendant contends the trial court erred in considering the record of the foreclosure suit because neither party had requested that the motion be treated as one for summary judgment, see Civ.P.Rule 12(b) (Repl.Pamp. 1980), and because defendant had objected to such treatment. See Emery v. University of New Mexico Medical Center, 96 N.M. 144, 628 P.2d 1140 (Ct.App.1981).\\nOn consideration of the arguments and the record on appeal, we conclude that we need not answer the first question certified. Plaintiffs' contention that the trial court properly considered matters other than the pleadings in effect asks us to affirm the trial court as right for the wrong reason. See State v. Beachum, 83 N.M. 526, 494 P.2d 188 (Ct.App.1972). For the reasons that follow, defendant's motion to dismiss for failure to state a claim should have been granted.\\nIn ruling on a motion to dismiss, all facts well-pleaded are accepted as true. Candelaria v. Robinson, 93 N.M. 786, 606 P.2d 196 (Ct.App.1980). Only the allegations of the complaint, however, are to be considered. McNutt v. New Mexico State Tribune Co., 88 N.M. 162, 538 P.2d 804 (Ct.App.1975). Legal conclusions or inferences that may be drawn from the allegations are not admitted. Id.\\nPlaintiffs argue that the complaint contained sufficient facts from which the trial court could infer that the statute had been tolled while the prior proceedings were pending. We disagree.\\nPlaintiffs' complaint alleges a wrongful act in 1978, from which they first suffered damages later the same year. There are no allegations concerning the counterclaims. We need not decide whether the statute of limitations for slander of title suits in New Mexico is the three-year limi tation for personal injury, NMSA 1978, Section 37-1-8, or the four-year limitation for damages to property or for no unspecified actions, NMSA 1978, Section 37-1-4. We also need not decide whether the cause of action accrued when plaintiffs suffered damages, see Shenefield v. Axtell, 274 Or. 279, 545 P.2d 876 (1976), or when defendant's notice was recorded. There being no allegations in the complaint as to tolling and estoppel, we agree that defendant's motion to dismiss should have been granted. Stringer v. Dudoich, 92 N.M. 98, 583 P.2d 462 (1978); Rather v. Allen County War Memorial Hospital, 429 S.W.2d 860 (Ky.1968). Plaintiffs' complaint stated facts that showed a cause of action which by 1984 was barred by the passage of time. Cf. Hernandez v. Anaya, 66 N.M. 1, 340 P.2d 838 (1959).\\nAlternatively, plaintiffs have argued that the trial court could properly take judicial notice of its records in an earlier case involving these parties. We recognize the court's inherent power to judicially notice its own records without specifically approving the court's procedure in this case. See Frost v. Markham, 86 N.M. 261, 522 P.2d 808 (1974).\\nNevertheless, when matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment. Transamerica Insurance Co. v. Sydow, 97 N.M. 51, 636 P.2d 322 (Ct.App.1981); NMSA 1978, Civ.P.R. 12(b) (Repl.Pamp. 1980). Whatever may have been the propriety of the trial court's consideration of matters outside the pleadings, we do not have before us the proceedings of the foreclosure suit, part of which apparently formed the basis of the trial court's disposition of defendant's motion. Absent the record of those facts, no question is presented to this court for review. See Richardson Ford Sales v. Cummins, 74 N.M. 271, 393 P.2d 11 (1964).\\nThe trial court erred in its denial of defendant's motion to dismiss plaintiffs' claim. We reverse the trial court and remand with instructions for the trial court to grant defendant's motion. Dismissal shall be without prejudice. No costs are awarded.\\nIT IS SO ORDERED.\\nDONNELLY and GARCIA, JJ., concur.\"}"

nm/1597045.json

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+"{\"id\": \"1597045\", \"name\": \"Simran Kaur KHALSA, a/k/a Elena E. Lancaster, Petitioner-Appellee, v. Simran Singh KHALSA, a/k/a David E. Lancaster, Respondent-Appellant\", \"name_abbreviation\": \"Khalsa v. Khalsa\", \"decision_date\": \"1988-02-02\", \"docket_number\": \"No. 9784\", \"first_page\": \"31\", \"last_page\": 37, \"citations\": \"107 N.M. 31\", \"volume\": \"107\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T02:27:19.183802+00:00\", \"provenance\": \"CAP\", \"judges\": \"DONNELLY, C.J., and MINZNER, J., concur.\", \"parties\": \"Simran Kaur KHALSA, a/k/a Elena E. Lancaster, Petitioner-Appellee, v. Simran Singh KHALSA, a/k/a David E. Lancaster, Respondent-Appellant.\", \"head_matter\": \"751 P.2d 715\\nSimran Kaur KHALSA, a/k/a Elena E. Lancaster, Petitioner-Appellee, v. Simran Singh KHALSA, a/k/a David E. Lancaster, Respondent-Appellant.\\nNo. 9784.\\nCourt of Appeals of New Mexico.\\nFeb. 2, 1988.\\nCertiorari Denied March 2, 1988.\\nAna Marie Ortiz, Northern N.M. Legal Services, Inc., Santa Fe, Maritza Gonzalez Ortiz, Hato Rey, P.R., for petitioner-appellee.\\nRichard S. Lees, Scheuer & Engel, P.C., Santa Fe, for respondent-appellant.\", \"word_count\": \"3383\", \"char_count\": \"21834\", \"text\": \"OPINION\\nGARCIA, Judge.\\nFACTS\\nThe parties were married in 1973. At the time, they were Sikhs and believed in and practiced the Sikh religion. In June 1976, the parties' oldest child, Hari Jap Singh Khalsa, was born, and in January 1981, the parties had a second child, Kartar Singh Khalsa. Both children's Sikh names appear on their birth certificates and, while the parties were married, both children were raised as Sikhs. The family observed the requirements of their religion, including the wearing of distinct apparel and turbans, reading from the Guru Granath, the Sikh scriptures, and the assumption of Sikh names. Their adherence to principles and tenets of their faith continued throughout their marriage.\\nMarital discord ultimately lead to the breakdown of their marriage and in December 1982, mother filed an uncontested petition for divorce. Mother was granted the divorce and awarded sole custody of the two children.\\nIn December 1983, mother remarried. Shortly thereafter, mother abandoned the Sikh religion and began discouraging the children from practicing Sikhism. Mother also began calling the children by other than their Sikh names. Father objected to the children not being raised as Sikhs, and the parties' disagreements over religious differences escalated. In May 1984, father filed a motion requesting sole custody of the children or, in th\\u00e9 alternative, joint custody.\\nIn violation of father's discovery request, mother failed to timely disclose the names of any expert witnesses whom she planned to call at trial on her behalf. The day prior to trial, however, mother submitted a witness list naming two proposed, but previously undisclosed, experts: Dr. Lillian Gonzales-Ortiz, a psychologist, and Father William Kent Burtner, a Catholic priest. Over father's objections, both witnesses testified.\\nIn December 1986, following a hearing on the merits, the trial court entered its order regarding custody, visitation and child support. The court found that a material change in circumstances had occurred since the court's last permanent order on custody, but concluded that joint custody was not in the children's best interest. Accordingly, the court ordered that sole custody of the children remain with mother; that father have visitation with the children at his residence for one month each summer; and that the children not participate voluntarily or involuntarily in any Sikh religious activities with father. Father appeals.\\nISSUES\\nFather raises the following five issues on appeal: (1) whether the trial court erred in denying father's motion for joint custody; (2) whether the trial court erred in enjoining father from encouraging his children to practice and participate in the Sikh religion during their visits with father; (3) whether the trial court's decision maintaining sole custody of the children with mother was based on an unconstitutional religious preference; (4) whether the trial court erred in admitting certain witness testimony; and (5) whether father was denied a fair trial due to the trial court's cumulative errors. Under the specific facts of the present case, the trial court erred in allowing the surprise witnesses to testify and, thus, we reverse.\\nAlthough the first issue is dispositive of this case, we will nonetheless additionally address both the second and fourth.\\nISSUE I & IV (Whether the trial court erred in denying father's motion for joint custody based on the testimony of surprise witnesses.)\\nThe trial court's denial of father's joint custody motion in the present case rests solely on the testimony of mother's expert witness, Dr. Gonzales. All other experts indicated that both father and mother were good, loving parents, capable of serving as joint custodians. Dr. Gonzales, however, presented testimony to the effect that joint custody was not in the children's best interest. This evidence, alone, would support the trial court's finding that joint custody was not in the children's best interest. Thus, if Dr. Gonzales' testimony had been properly before the trial court, the trial court would be affirmed under our substantial evidence rule. See Sandoval v. Department of Employment Sec., 96 N.M. 717, 634 P.2d 1269 (1981).\\nA reviewing court may, however, reverse the trial court upon a finding of abuse of discretion. In State v. Hargrove, 81 N.M. 145, 464 P.2d 564 (Ct.App.1970), this court defined abuse of discretion as:\\n\\\"[a]n erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn from such facts and circumstances. It is really a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.\\\"\\nId. at 147, 464 P.2d at 566 (quoting Bowers, Judicial Discretion of Trial Courts \\u00a7 12 (1931)). Here, the trial court abused its discretion in allowing both surprise witnesses to testify over father's objections.\\nIn preparing for litigation on custody, father served mother with interrogatories and requests for production. The interrogatories specifically asked mother for a list of witnesses and a summary of the witnesses' testimony. Mother did not comply with her disclosure obligations. Father's request for production sought all doc uments to be used at trial, information concerning the certificates of training or qualification of proposed experts, and any psychological evaluations of mother and children. Mother did not produce any of these documents or information.\\nIn May 1985, father filed a motion to compel discovery; the motion was not heard by the court. Fifteen months later, on the afternoon before trial, father received a list of witnesses including the names of both Dr. Gonzales and Father Burtner. Attached to the list were psychological evaluation reports on mother and both children prepared by Dr. Gonzales.\\nFather immediately filed a written objection and moved to strike the proposed testimony of Dr. Gonzales and any exhibits. The following day, before trial, father again objected to the testimony of both-experts based on surprise and prejudice. Father informed the trial court that: (1) he had no prior knowledge of the witnesses' testimony; (2) he had been given no opportunity to study the basis of the psychological evaluations; and (3) he had been provided no opportunity to obtain an independent review of the evaluations. Accordingly, father asked that the witnesses be prohibited from testifying and that the evaluations not be allowed into evidence.\\nFather's objection was overruled. The judge noted, however, that mother's concealment of the identities of expert witnesses was equal to \\\"trying to have a smoking gun secreted,\\\" and that mother's counsel had frustrated the legal process. The trial court nonetheless concluded that counsel's behavior should not jeopardize the rights of the parties and, thus, the parties would proceed to trial as scheduled. The court advised father to meet with both experts during the lunch hour and if the hour proved inadequate, father could renew his objection thereafter.\\nAfter lunch, before either expert took the stand, father renewed his objection to the experts' testimony. The objection was again denied and both Dr. Gonzales and Father Burtner were allowed to testify. In the midst of Dr. Gonzales' testimony, father again objected, informing the court that Dr. Gonzales' testimony conflicted with the information she had given counsel during the lunch hour. Father moved to strike her testimony and continued to renew his objection based on surprise. His motion and objection were overruled.\\nIn State v. Manus, 93 N.M. 95, 597 P.2d 280 (1979), overruled on other grounds, 98 N.M. 786, 653 P.2d 162 (1982), the supreme court addressed the issue of surprise witnesses. In Manus, defendant was on trial for murder. During discovery, the state submitted a list of witnesses it planned to call. At trial, however, the state called a non-disclosed witness, Seig, as a rebuttal witness. Defendant objected to Seig's testimony on the basis of surprise. Based on that objection, the trial court postponed Seig's testimony until the following day in order to allow defendant an opportunity to depose him. Subsequently, Seig was adequately cross-examined. Ultimately, defendant was found guilty of murder. Defendant appealed his conviction arguing, inter alia, that allowing Seig to testify was error.\\nAlthough the supreme court was critical of the state's failure to disclose the witness' identity prior to trial, the Manus court noted that mere failure to disclose, alone, was not grounds for reversal. The court stated that the party must show that he was prejudiced by such non-disclosure. In Manus, the court held that defendant was not prejudiced because defendant was given an opportunity to depose the witness before the witness took the stand and, as a result of such deposition, the witness was \\\"vigorously and competently\\\" cross-examined at trial. The court concluded that allowing the defendant an opportunity to depose removed the prejudice caused by the initial surprise. Such is not the case here.\\nThe pertinent facts here are similar, at least initially, to those in Manus. As in Manus, the stakes here were high. \\\"[T]he loss of a child through [the] legal process can be as serious as imprisonment in a criminal case.\\\" In re Jason Y, 106 N.M. 406, 408, 744 P.2d 181, 183 (Ct.App.1987) (quoting Hernandez v. State ex rel. Arizo na Dep't of Economic Sec., 23 Ariz.App. 32, 35, 530 P.2d 389, 392 (1975)). Here, as in Manus, mother had an obligation to comply with discovery, specifically good faith answers to interrogatories. SCRA 1986, 1-033(A). Father was not informed of the experts' identities until shortly before trial. Moreover, father objected to the testimony of both experts. The similarities, however, end here.\\nWhile the trial court in Manus allowed the defense ample opportunity to depose the surprise witness, father, here, was given only one hour in which to question both expert witnesses and prepare for cross-examination. The interview was to take place over a break during the course of the proceedings. Upon returning from the lunch break, father specifically asked the trial court for an opportunity to depose Dr. Gonzales and informed the trial court that Dr. Gonzales' testimony at trial conflicted with her statements given during the lunch hour. Without a deposition to impeach Dr. Gonzales, counsel operated at a significant disadvantage.\\nThe court in Manus refused to reverse defendant's conviction because the defense was given an adequate opportunity to depose the witness and defendant's lack of prejudice was evidenced by counsel's vigorous and competent crossexamination. In the present case, father was given an inadequate opportunity to interview both witnesses, was denied an opportunity to depose them, and was unable to vigorously or effectively cross-examine. The court's offer to allow counsel one hour to meet with, interview and prepare for the cross-examination of two experts presented a true Hobson's choice. Had father declined the offer, Manus may well have precluded a subsequent complaint.\\nIn allowing both expert witnesses to testify, the trial court noted that mother had frustrated the legal process. The court stated that mother's counsel's behavior should not jeopardize the rights of the parties, and allowed both experts to testify. The trial court's decision to allow Dr. Gonzales' and Father Burtner's testimony, however, in fact \\\"jeopardized\\\" the rights of father by not allowing him an adequate opportunity to interview, depose and prepare for an adequate cross-examination of both experts. Although the trial court admonished mother for her unwillingness to cooperate, the court nonetheless denied father's objection, thus, jeopardizing his ability to adequately defend.\\nThe surprise testimony of Dr. Gonzales is the only evidence supporting the trial court's denial of joint custody. The balance of all other evidence indicated that both parents were capable of serving as joint custodians. The trial court's decision to allow both Dr. Gonzales and Father Burtner to testify, however, was not justified by, and was clearly against \\\"the logic and effect of the facts and circumstances before the court.\\\" See State v. Hargrove, 81 N.M. at 147, 464 P.2d 566. Dr. Gonzales' testimony is the only evidence supporting the court's denial of joint custody. The balance of the evidence indicated that both parents were capable of serving as joint custodians. Thus, the trial court abused its discretion in allowing such testimony.\\nISSUE II (Whether the trial court erred in enjoining father from encouraging his children from voluntarily or involuntarily participating in Sikh religious activities.)\\nThis issue presents a matter of first impression. Although we need not address this issue because of our holding in issue 1, we deem it necessary to give guidance as to the scope of a court's intervention in religious beliefs and practices in child custody disputes.\\nWithout any finding that participation in religious activities was harmful to the children here, the trial court enjoined the parties from freely discussing their religious beliefs with their children. Specifically, the trial court ordered that when the children were with father, they could not voluntarily or involuntarily participate in any Sikh activity, including any church activity, Sikh camp or Sikh day care center.\\nIt is well established that in child custody matters the best interests and welfare of the children are the primary and controlling considerations. Schuerman v. Schuermann, 94 N.M. 81, 607 P.2d 619 (1980); In re Briggs, 91 N.M. 84, 570 P.2d 915 (1977); Boone v. Boone, 90 N.M. 466, 565 P.2d 337 (1977). Similarly, where there is a conflict between the parents regarding the religious faith and training of the children, the paramount concern is the welfare of the children. See Munoz v. Munoz, 79 Wash.2d 810, 489 P.2d 1133 (1971) (en banc).\\nCourts should proceed cautiously and with circumspection when dealing with religious issues. \\\"[Ijntervention in matters of religion is a perilous adventure upon which the judiciary should be loath to embark.\\\" Wojnarowicz v. Wojnarowicz, 48 N.J.Super. 349, 354, 137 A.2d 618, 621 (1958). In Munoz v. Munoz, the court noted:\\nThe courts are reluctant to interfere with the religious faith and training of children where the conflicting religious preferences of the parents are in no way detrimental to the welfare of the child. The obvious reason for such a policy of impartiality regarding religious beliefs is that, constitutionally, American courts are forbidden from interfering with religious freedoms or to take steps preferring one religion over, another. *\\nThus, the rule appears to be well established that the courts should maintain an attitude of strict impartiality between religions and should not disqualify any applicant for custody or restrain any person having custody or visitation rights from taking the children to a particular church, except where there is a clear and affirmative showing that the conflicting religious beliefs affect the general welfare of the child.\\nId. 79 Wash.2d at 812-13, 489 P.2d at 1135 (citations omitted); see, e.g., Hanson v. Hanson, 404 N.W.2d 460 (N.D.1987); In re Marriage of Murga, 103 Cal.App.3d 498, 163 Cal.Rptr. 79 (1980); Compton v. Gilmore, 98 Idaho 190, 560 P.2d 861 (1977); Felton v. Felton, 383 Mass. 232, 418 N.E. 2d 606 (1981); Robertson v. Robertson, 19 Wash.App. 425, 575 P.2d 1092 (1978); Annotation, Religion as Factor in Child Custody and Visitation Cases, 22 A.L.R.4th 971 (1983); Note, The Religious Upbringing of Children After Divorce, 56 Notre Dame Law, 160 (1980).\\nIn justifying a prohibition of religious restrictions on visitation rights, physical or emotional harm to the child cannot be assumed, but must be demonstrated in detail. Hanson v. Hanson; Felton v. Felton. Factual evidence of harm rather than \\\"mere conclusions and speculation\\\" is required. Robertson v. Robertson.\\nThus, a custodial parent's general testimony that the child is upset or confused because of the non-custodial parent's religious practice is insufficient to demonstrate harm. Felton v. Felton; Munoz v. Munoz. Further, general testimony that the child is upset because the parents practice conflicting religious beliefs is likewise insufficient. Hanson v. Hanson (mother's testimony that father, a member of the Pentecostal Apostolic church, had told the children, among other things, that the Catholic church believes in cannibalism, which upset the children, was insufficient to prohibit father from taking the children to his church); Munoz v. Munoz (parent's speculation that six-year-old son, who attended both Mormon services with his mother and Catholic services with his father, was emotionally harmed thereby, was insufficient. The court concluded that duality of religious beliefs, do not, per se, create a conflict upon young minds.).\\nAlthough most disputes involve conflicting religious practices between the divorced parents, the same principles apply equally where one parent practices no religion. Robert O. v. Judy E., 90 Misc.2d 439, 395 N.Y.S.2d 351 (Fam.Ct.1977) (mother, a nonbeliever in organized religion, sought to enjoin non-custodial father from taking child to church services. The court recognized that although the building of moral character was possible without religious beliefs or training, the child's interests were best served by allowing him to continue his religious training with father.).\\nA court's reluctance to interfere with the religious upbringing of children, however, is not absolute. Religious restric tions placed upon visitation rights have been upheld where evidence of physical or emotional harm to the child has been substantial. See Funk v. Ossman, 150 Ariz. 578, 724 P.2d 1247 (App.1986) (court upheld order enjoining non-custodial parent from taking his eight-year-old son to formal Jewish religious training. Evidence presented at trial included the testimony of three psychologists, one of whom testified that child had anxiety problems caused by the religious differences of his parents which manifested itself in encopresis); Bentley v. Bentley, 86 A.D.2d 926, 448 N.Y.S.2d 559 (1982) (court affirmed order prohibiting non-custodial father from instructing his children in the teachings of the Jehovah's Witnesses. The custodial mother was Catholic and the court found that the children were \\\"emotionally strained and torn\\\" as a result of the parties' conflicting religious beliefs).\\nThus, although the courts are reluctant to enjoin a non-custodial parent from practicing his religion with his children, the courts can and will enjoin such practice where the testimony concerning physical or emotional harm to the child is detailed and the best interests of the child will be served through the prohibition. Here, the evidence concerning the impact on the children consisted of testimony by Father Burtner and mother's general testimony that the children appeared upset and disturbed after visitations with father. Because we have held that the trial court abused its discretion in permitting Father Burtner to testify, however, the trial court could not restrict father from practicing his religion with his children based on such testimony. Mother's general testimony alone, however, was insufficient to support the restriction.\\nIn sum, we adopt the view expressed in Munoz. Courts should adhere to a policy of impartiality between religions, and should intervene in this sensitive and constitutionally protected area only where there is a clear and affirmative showing of harm to the children. Restrictions in this area present the danger that court-imposed limitations will unconstitutionally infringe upon a parent's freedom of worship or be perceived as having that effect.\\nThus, we hold that, in determining whether a parent involved in a child custody dispute should be restricted from practicing or encouraging the child in a religious belief or practice, the trial court must consider the following:\\n1. Whether there exists detailed factual evidence demonstrating that the conflicting beliefs or practices of the parents pose substantial physical or emotional harm to the child;\\n2. Whether restricting the religious interaction between the parent and child will necessarily alleviate this harm; and\\n3. Whether such restrictions are narrowly tailored so as to minimize interference with the parents' religious freedom.\\nHere, there was no evidence that either child was harmed by exposure to father's religion. Accordingly, we further hold the trial court's judgment enjoining both parents from freely discussing their religious beliefs with the children, and specifically prohibiting father from encouraging his children to participate in any Sikh activity, to be error.\\nCONCLUSION\\nThe trial court erred in allowing both surprise expert witnesses to testify. Since Dr. Gonzales' testimony provided the sole basis for the trial court's denial of father's joint custody request, and Father Burtner's testimony provided the sole basis for the religious limitations, we remand to the trial court for a new trial. Father is awarded his costs on appeal.\\nIT IS SO ORDERED.\\nDONNELLY, C.J., and MINZNER, J., concur.\"}"

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+"{\"id\": \"1597121\", \"name\": \"Gayle D. RICHARDSON, as Personal Representative of the Estate of Wade Fitzsimmons Richardson, Deceased, Petitioner, v. CARNEGIE LIBRARY RESTAURANT, INC. d/b/a The Country Connection, and Bennett-Cathey, Inc., Respondents\", \"name_abbreviation\": \"Richardson ex rel. Estate of Richardson v. Carnegie Library Restaurant, Inc.\", \"decision_date\": \"1988-10-18\", \"docket_number\": \"No. 17432\", \"first_page\": \"688\", \"last_page\": 755, \"citations\": \"107 N.M. 688\", \"volume\": \"107\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-11T02:27:19.183802+00:00\", \"provenance\": \"CAP\", \"judges\": \"SOSA, Senior Justice, concurs.\", \"parties\": \"Gayle D. RICHARDSON, as Personal Representative of the Estate of Wade Fitzsimmons Richardson, Deceased, Petitioner, v. CARNEGIE LIBRARY RESTAURANT, INC. d/b/a The Country Connection, and Bennett-Cathey, Inc., Respondents.\", \"head_matter\": \"763 P.2d 1153\\nGayle D. RICHARDSON, as Personal Representative of the Estate of Wade Fitzsimmons Richardson, Deceased, Petitioner, v. CARNEGIE LIBRARY RESTAURANT, INC. d/b/a The Country Connection, and Bennett-Cathey, Inc., Respondents.\\nNo. 17432.\\nSupreme Court of New Mexico.\\nOct. 18, 1988.\\nRehearings Denied Nov. 21, 1988.\\nShamas & Perrin, K. Douglas Perrin, Paul Snead, Roswell, for petitioner.\\nSanders, Bruin, Coll & Worley, Michael T. Worley, Roswell, for respondents.\\nWilliam H. Carpenter, Albuquerque, for amicus curiae New Mexico Trial Lawyers Ass\\u2019n.\\nMiller, Stratvert, Torgerson & Schlenker, Alice Tomlinson Lorenz, Albuquerque, for amicus curiae Defense Lawyers Ass\\u2019n.\\nPatrick A. Casey, D. Diego Zamora, Santa Fe, for amici curiae Mothers Against Drunk Driving, Students Against Drunk Driving.\", \"word_count\": \"10303\", \"char_count\": \"64653\", \"text\": \"OPINION\\nWALTERS, Justice.\\nWade Fitzsimmons Richardson was killed when a two-ton dumptruck driven by Billibob Lewis collided with the car that Richardson was operating. Lewis had become intoxicated at a bar owned by Carnegie Library, Inc.; he subsequently stole the dumptruck from the lot behind Bennett Cathey, Inc.; and he negligently drove and crashed the truck into Richardson's vehicle.\\nThe decedent's personal representative, Gayle D. Richardson, brought a wrongful death action against Carnegie and BennettCathey. Her complaint alleged that while Lewis was intoxicated, Carnegie served alcohol to him in violation of the Dramshop Act, NMSA 1978, Section 41-11-1 (Repl. Pamp.1986); that Bennett-Cathey negligently left the keys in the ignition of the unattended dumptruck; and that the negligent acts of both defendants proximately caused Richardson's death. The district court granted summary judgment in favor of Bennett-Cathey, entered a default judgment against Carnegie (for failure to answer), and found that Richardson suffered damages for which he would be entitled to recover $250,000 from Carnegie. The court awarded only $50,000, however, finding itself limited by the maximum recovery allowable under the Dramshop Act.\\nRichardson appealed the district court's ruling to the court of appeals, claiming error in the grant of summary judgment to Bennett-Cathey, and attacking the cap on liability under the dramshop act as unconstitutional. Richardson enumerated several \\\"special circumstances\\\" that would justify the imposition of liability against Bennett-Cathey: Bennett-Cathey knew that the brakes on its truck were inoperative; the lot from which Lewis stole the truck was not fenced and was easily accessible; the area where the truck was parked was frequented by transients; the truck required special skills for safe operation; and the truck was large and bulky and more capable of causing serious injuries than an automobile. She asserted that the theft of the unattended vehicle, with keys left in the ignition, was not an independent, intervening, or superseding act that would exempt Bennett-Cathey from liability. The docketing statement also presented the issue that the damage limitation on dram-shop liability violated the United States and New Mexico Constitutions. In her memorandum opposing summary affirmance, Richardson argued that the statute denied equal protection because the damage cap allowed victims of a tavernkeeper's negligence to be undercompensated although victims of other tortfeasors were entitled to obtain full recovery; and further, that the damage cap violated her right to a trial by jury as guaranteed by Article II, Section 12 of the New Mexico Constitution because the cap usurped the fundamental function of a jury to determine damages.\\nThe court of appeals, by memorandum opinion, upheld the trial court on all issues. In its first calendar notice, the court proposed affirmance of the summary judgment on grounds that the theft was not foreseeable, but instead was an intervening, superseding, criminal act by a- third person. Acknowledging that several jurisdictions look to special circumstances to determine foreseeability of the harm to be caused by the negligence of an owner leaving the keys in an unattended vehicle, and the liability which attends that foreseeability, the appellate court noted that it could not overrule our opinion in Bouldin v. Sategna, 71 N.M. 329, 378 P.2d 370 (1963), by which it felt itself bound. See Alexander v. Delgado, 84 N.M. 717, 718, 507 P.2d 778, 779 (1973) (lower courts should not overrule precedents set by superior court).\\nRegarding the equal protection issue, the calendar notice considered that the damage cap concerned no fundamental rights and implicated no suspect classes. The court employed, therefore, the rational basis standard of review and looked to the purposes of the challenged statute. It then reasoned that the legislature had \\\"created a cause of action\\\" subsequent to this court's \\\"creation\\\" of a common-law cause of action for tavernkeeper negligence, and that its purpose was to limit dramshop liability in exchange for creating that new cause of action. Impressed that the damage cap applied equally to all persons seeking to recover under the dramshop act, the court's notice proposed affirmance on a determination that the statute did not unconstitutionally violate the equal protection clause.\\nIn its second calendar notice, the court of appeals addressed the jury trial issue, and reiterated its conclusion that the legislature had transformed a common-law cause of action into a statutory one. It then concluded that Richardson had a right to a trial by jury on the question of liability, but that he had no right to have a jury determine the amount of his damages because the statutory action limited the amount of liability. The court of appeals, therefore, summarily dismissed Richardson's appeal and affirmed the trial court by memorandum opinion.\\nWe granted Richardson's petition for .writ of certiorari and gave leave to file amicus curiae briefs to the New Mexico Trial Lawyers Association (NMTLA), the Defense Lawyers Association (DLA), Mothers Against Drunk Drivers (MADD), and Students Against Drunk Drivers (SADD). The only issue addressed by all of the amici briefs in support of the petitioner's application for review is the constitutionality of the dramshop act.\\nMADD and SADD point out that New Mexico has one of the most severe drunk-driving problems in the United States and that every conceivable approach to resolve the drunk-driving menace is needed. They agree that dramshop liability is an effective measure in curbing drunken driving, but that the salutary impact of the dramshop act is diffused by the damage cap. Urging that the limit on recovery is inconsistent with the purpose for imposing liability, they emphasize that reinforcing dramshop liability and invalidating the damage cap would best serve the public interest.\\nNMTLA challenges the damage cap as unconstitutional violations of the due process and equal protection clauses, the right to trial by jury, and the doctrine of separation of powers. Regarding the separation of powers argument, NMTLA contends that the legislatively mandated damage cap prevents judges from exercising their historic procedural power to exercise discretion in reviewing the excessiveness of a jury's award upon a motion for a new trial under SCRA 1986, 1-059; and that it compels judges to order a remittitur, another discretionary act historically inherent in a trial judge's powers. Because procedural rules are within the sole domain of the supreme court, and because the statutory limitation on liability impinges upon the provisions of Rule 59, NMTLA insists with some logic that the damage cap constitutes a legislative usurpation of judicial power and thus violates the doctrine of separation of powers.\\nNMTLA proposes, too, that the damage cap violates the right to trial by jury, arguing that the legislature did not transform dramshop liability from an action at common law to a statutory cause of action but, rather, only narrowed and modified the judicially-created common-law liability that was established in Lopez v. Maez, 98 N.M. 625, 651 P.2d 1269 (1982). Thus, because a plaintiff has a fundamental right to have a jury determine liability and damages in a common-law action, NMTLA argues that the damage cap unconstitutionally infringes on a party's right to trial by jury.\\nAmicus NMTLA contends that the damage cap also infringes the due process and equal protection clauses of the New Mexico Constitution because the rights to a jury trial and of access to the courts, being fundamental constitutional rights, are rendered meaningless if full and adequate recoveries are not available to all plaintiffs. NMTLA has traced these rights from their historic geneses in Spanish and Mexican laws, the Siete Partidas, the Fuero Juzgo, and the Kearney Code, and it concludes that all formed an integral part of the civil law in the days before statehood and were incorporated into the New Mexico Constitution. Accordingly, NMTLA argues that the damage cap is subject to strict scrutiny under which it surely must be invalidated, but that even under the minimal rational basis analysis, no justification exists to uphold a limitation on the award of damages.\\nDLA, from an opposing position, argues that Richardson has no standing to raise the jury trial issue because she never requested a jury trial. On the issue of recoverable damages, it takes the stance that the legislature changed dramshop liability to a statutory action from one at common law and, thus, because it created the liability, it can limit the amount of recovery. We are urged to disregard the separation of powers, due process, and right of access to the courts issues because they were not briefed or argued at trial and, therefore, are not properly before us for consideration. But DLA does respond to some of the amici arguments, urging that the separation of powers doctrine is inapplicable here because the judiciary promulgates procedural rules out of convenience and efficiency only; and the right of access to the courts merely refers to the availability of the judicial machinery to resolve disputes and is not a right guaranteed explicitly in the New Mexico Constitution.\\nRegarding the equal protection issue, DLA asserts that we are not here dealing with fundamental rights or suspect classes. Any rights found in the Kearney Code or any other civil law predating statehood, it says, were not adopted by or incorporated into the New Mexico Constitution. Moreover, characterizing the dramshop act as social and economic legislation reviewable by the rational basis test, it denies that any right to full compensation can be implied from the guarantee of certain inalienable rights in Article II, Section 4 of our constitution. DLA views the damage cap as rationally related to the dual legislative goals of compensating victims injured as the result of the negligent service or sale of alcohol but not overburdening tavernkeepers, conjecturing that recovery under the dramshop act probably will not be the only source of recovery available to such a plaintiff.\\nResponding to whether Richardson properly preserved certain constitutional issues for appeal, NMTLA points to Richardson's broad claim that the damage cap was unconstitutional, which opened the door for amici to explain in more detailed and specific analyses under the right to jury trial, due process, and equal protection clauses of the New Mexico Constitution, exactly why the statute is invalid. But DLA is correct in asserting that two of the issues, separation of powers and due process, cannot be raised for the first time on appeal. See Romero v. Sanchez, 86 N.M. 55, 56, 519 P.2d 291, 292 (1974) (court will not consider claim offered for first time on appeal); State ex rel. Brown v. Hatley, 80 N.M. 24, 25, 450 P.2d 624, 625 (1969) (same). It is not enough for a party to make a broad, general assertion that a statute is unconstitutional and then leave it to amici to develop and refine her arguments. The complainant must specify in what manner his or her constitutional rights are affected adversely. State v. Hines, 78 N.M. 471, 474, 432 P.2d 827, 830 (1967). Richardson did not request resolution, in either the trial court or the court of appeals, of the separation of powers and due process claims raised by NMTLA, and we will not consider new issues presented for the first time on appeal through amicus briefs. St. Vincent Hosp. v. Salazar, 95 N.M. 147, 149, 619 P.2d 823, 825 (1980).\\nDLA is likewise correct in observing that Richardson did not request a jury trial. Failure to demand a jury trial in a timely manner constitutes a waiver of a trial by jury. SCRA 1986, 1-038(D). Even though this issue was addressed by the court of appeals in its notices of proposed affirmance, we will not consider in this review the jury trial issue. We do not consider, therefore, whether the limit on dramshop liability violates Richardson's right to a jury's determination of damages in a common-law cause of action.\\nNMTLA, however, correctly analyzes right of access to the courts as an implicit fundamental right entitled to the equal protection guarantees of the Constitution. Richardson claimed an equal protection violation in the court below; consequently, whether a right of access to the courts is violated by the damage cap is a relevant question in determining whether a fundamental right is contravened. That, in turn, is likewise relevant in determining which standard of review to apply in analyzing the equal protection right guaranteed by Article II, Section 18 of the New Mexico Constitution.\\nRecently we discussed, in Meyer v. Jones, 106 N.M. 708, 749 P.2d 93 (1988), that in equal protection attacks upon statutes, at least three tests for reviewing such challenges have been recognized and applied. Traditionally, the United States Supreme Court long had employed a two-ti ered analysis: minimum scrutiny, or the rational basis test, when reviewing social and economic legislation, McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed. 2d 393 (1961), and strict scrutiny when analyzing legislation that infringed fundamental constitutional rights or made distinctions directed toward suspect classes. The tests for reviewing equal protection challenges generally are the same under New Mexico and federal law.\\nWe have observed that a statute infringing fundamental rights or involving suspect classes must support a compelling state interest to escape judicial invalidation. State v. Edgington, 99 N.M. 715, 718, 663 P.2d 374, 377 (Ct.App.), cert. denied, 99 N.M. 644, 662 P.2d 645, cert. denied, 464 U.S. 940, 104 S.Ct. 354, 78 L.Ed.2d 318 (1983). We have also said that legislative acts are presumptively valid and normally are subjected to the rational basis test; it is well-settled that they will not be declared invalid unless the court is clearly satisfied that the legislature went outside the constitution in enacting them. Espanola Hous. Auth. v. Atencio, 90 N.M. 787, 788, 568 P.2d 1233, 1234 (1977); Board of Trustees v. Montano, 82 N.M. 340, 343, 481 P.2d 702, 705 (1971). The burden of proof is on the plaintiff to demonstrate that the challenged legislation is clearly arbitrary and unreasonable, not just that it is possibly so. Sanchez v. M.M. Sundt Constr. Co., 103 N.M. 294, 296, 706 P.2d 158, 160 (Ct.App. 1985); Gallegos v. Homestake Mining Co., 97 N.M. 717, 722, 643 P.2d 281, 286 (Ct. App.1982). The fact that a statute appears unreasonable to the courts is not decisive; that is not enough to invalidate an act. Hutcheson v. Atherton, 44 N.M. 144, 149, 99 P.2d 462, 465 (1940). Only when a statutory classification is so devoid of rational support or serves no valid governmental interest, so that it amounts to mere caprice, will it be struck down under the rational basis test. Montano, 82 N.M. at 343, 481 P.2d at 705; Hutcheson, 44 N.M. at 149, 99 P.2d at 465; Edgington, 99 N.M. at 719, 663 P.2d at 378. When employing the minimal scrutiny test, the courts neither will inquire into the wisdom, policy, or justness of legislation, nor will they substitute their views for that of the legislature, but rather will uphold the statute if any state of facts reasonably can be conceived that will sustain the challenged classification. Garcia v. Albuquerque Pub. Schools Bd. of Educ., 95 N.M. 391, 393, 622 P.2d 699, 701 (Ct. App.1980), cert. quashed, 95 N.M. 426, 622 P.2d 1046 (1981). The rational basis test, therefore, employs no independent review or analysis of the factual basis of the state's goal, or of the means designated by the statute to attain that goal. Nowak, Realigning the Standards of Review Under the Equal Protection Guarantee\\u2014 Prohibited, Neutral, and Permissive Classifications, 62 Geo.LJ. 1071, 1094 (1974).\\nAn intermediate equal protection standard of review, somewhere between the rational basis and strict scrutiny standards, arose more recently out of the Supreme Court's dissatisfaction with the traditional, two-tiered analysis. See Craig v. Boren, 429 U.S. 190, 210 n. *, 97 S.Ct. 451, 463 n. *, 50 L.Ed.2d 397 (1976) (Powell, J., concurring); Gunther, In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L. Rev. 1, 17-19 (1972). Accordingly, the third test has been aimed at legislative classifications infringing important but not fundamental rights, and involving sensitive but not suspect classes. L. Tribe, American Constitutional Law \\u00a7 16-33, at 1610, 1613 (2d ed. 1988). The Court first enunciated the intermediate (or \\\"heightened scrutiny\\\") test in F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920), when it declared that a classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation. See Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971) (employing Royster's intermediate scrutiny test to invalidate statute based on gender classification); see also City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 441, 105 S.Ct. 3249, 3255, 87 L.Ed.2d 313 (1985) (under heightened standard of review, classification fails unless it is substantially related to sufficiently important or legitimate governmental interest). The Court has applied the intermediate analysis principally to statutes that classify according to gender and illegitimacy. See City of Cleburne, 473 U.S. at 440-41, 105 S.Ct. at 3254-55.\\nAlthough we have referred to the Supreme Court's use of the third, intermediate standard of review, see McGeehan v. Bunch, 88 N.M. 308, 310, 540 P.2d 238, 240 (1975), on occasion we have muddied the constitutional waters in New Mexico by interchangeably using the rational basis and intermediate tests as if they were identical. For example, in McGeehan, the court considered the validity of an automobile guest statute, construed the act as social and economic legislation, and cited the applicable standard of review as the intermediate test that was enunciated in Reed. See McGeehan, 88 N.M. at 310, 540 P.2d at 240. The court described the facets of the rational basis test, declared the legislative classification unreasonable and arbitrary, id. at 311, 540 P.2d at 241, but said also that the statute had no \\\"fair and substantial relation\\\" to its goal. Id. at 313-14, 540 P.2d at 244. In the end, the court invalidated the guest statute as violative of the equal protection clause, but it is not clear on which standard of review it relied to do so; and if the court employed both the rational basis and intermediate tests to strike the statute, the opinion is not clear why the court used both instead of either.\\nThe imprecision was perpetuated in Pruey v. Department of Alcoholic Beverage Control, 104 N.M. 10, 715 P.2d 458 (1986). In considering an equal protection challenge to regulations prohibiting the sale of alcohol on Sundays, the court quoted the rational basis test as outlined in McGowan, and then cited the intermediate test and Reed and McGeehan in support. Id. at 12, 715 P.2d at 460. The court seemed to consider the two tests as different manifestations of the same principle; but the court upheld the statute as having a rational basis. Id. at 13, 715 P.2d at 461.\\nThe confusion probably is a result of a misinterpretation of the longstanding precedent that legislative classifications must be based upon substantial distinctions. See State v. Atchison, T. & S.F. Ry., 20 N.M. 562, 570, 151 P. 305, 307 (1915). That rule is found in Gruschus v. Bureau of Revenue, 74 N.M. 775, 399 P.2d 105 (1965), an opinion often cited for its explication of the rational basis standard of review, wherein it was said that the equal protection clause \\\"does not prohibit classification for legislative purposes, provided that there is a rational and natural basis therefor, that it is based on a substantial difference between those to whom it does and those to whom it does not apply Id. at 778, 399 P.2d at 107. In Gruschus, the challenged statute was found reasonable and not arbitrary, affording substantially equal treatment to all persons similarly situated. Id. at 779, 399 P.2d at 108. The test might better be stated as one assuring that classifications are based on real differences bearing a rational and proper relationship to the classification. See Community Pub. Serv. Co. v. New Mexico Pub. Serv. Comm'n, 76 N.M. 314, 317-18, 414 P.2d 675, 677, cert denied, 385 U.S. 933, 87 S.Ct. 292, 17 L.Ed. 2d 213 (1966); Burch v. Foy, 62 N.M. 219, 224, 308 P.2d 199, 202 (1957). The Espa\\u00f1ola Housing court said that the question is whether the reasons advanced for validity of a statute were \\\"real and pertinent differences or merely artificial differences not relevant to the classification involved.\\\" 90 N.M. at 789, 568 P.2d at 1235.\\nThus, the rational basis test, which requires classifications to be based on substantial or real distinctions and be rationally related to the legislative goal, is different from the intermediate test, which requires a classification to be more than just rationally related to the statutory purpose; it requires also that the classification be substantially related to an important state interest. Additionally, a key difference in the tests is that under rational basis the party objecting to the legislative classification has the burden of demonstrating that the classification bears no rational relationship to a conceivable legislative purpose whereas under heightened scrutiny the party maintaining the validity of the classification must prove that the classification is substantially related to an important governmental interest. See Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976).\\nOur research discloses that only the Supreme Court of Minnesota has considered the constitutionality of a limitation on damages for dramshop liability. Employing the rational basis test, McGuire v. C & L Restaurant, Inc., 346 N.W.2d 605 (Minn. 1984), invalidated the liability limitations as violative of the state equal protection clause. Id. at 613. In similar challenges to medical malpractice damage caps, however, several jurisdictions have considered the equal protection argument. We have found those cases most instructive in that for all practical purposes the constitutional analysis of medical malpractice limited liability legislation is identical to an equal protection analysis of limited dramshop liability. Thus, we discuss some of those decisions.\\nSome courts have construed the damage caps as social and economic legislation and have upheld them after reviewing the legislation under the rational basis test. Three separate intermediate courts in Texas have invalidated legislation that limited liability for medical malpractice actions, purportedly using the rational basis standard of review. The Supreme Court of Texas, also applying the minimum standard in a yet-unreleased opinion, recently affirmed the invalidity of the statutory liability limitation in Lucas v. United States, 757 S.W.2d 687 (1988), holding the cap to be \\\"unreasonable and arbitrary\\\" when balanced against the purpose and basis of the legislation. Id. at 690. In Lucas, the Texas Supreme Court had no difficulty in determining under the rational basis standard that an unreasonable and arbitrary cap on medical malpractice damages was an unconstitutional denial of a \\\" 'remedy by due course of law.' \\\" 757 S.W.2d at 690.\\nThree other jurisdictions have invalidated damage limitation provisions as violative of a plaintiff's explicit, state constitutional right to full recovery in a tort action, employing a strict scrutiny analysis to do so. See Kenyon v. Hammer, 142 Ariz. 69, 83, 688 P.2d 961, 975 (1984); Smith v. Department of Ins., 507 So.2d 1080, 1088 (Fla. 1987); Pfost v. State, 713 P.2d 495, 503 (Mont.1985). Several other courts have held that the right to recover damages for personal injuries is not a fundamental right and that the class of victims denied full recovery is not a suspect class; but those courts have declared further that the rights infringed by medical malpractice legislation are sufficiently important and substantive, and the class of persons affected sufficiently sensitive, to justify invoking an intermediate standard of review to invalidate the statutes.\\nIn determining which standard of review to apply in the equal protection analysis of the damage cap in the present case, we note first that no suspect class is involved. A suspect class has been defined as a discrete group \\\"saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.\\\" San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16 (1973); see Lyng v. Castillo, 477 U.S. 635, 106 S.Ct. 2727, 2729, 91 L.Ed. 2d 527 (1986); Plyler v. Doe, 457 U.S. 202, 216 n. 14, 102 S.Ct. 2382, 2394 n. 14, 72 L.Ed.2d 786 (1982). Only statutory classifications based on race, national origin, or alienage so far have been treated as suspect. Wilkinson, The Supreme Court, The Equal Protection Clause, and the Three Faces of Constitutional Equality, 61 Va. L.Rev. 945, 951 (1975). The class of tort victims denied full recovery for dramshop liability does not rise to the level of \\\"suspectness\\\" under existing precedent and, therefore, does not trigger strict scrutiny.\\nSecondly, we address the question of whether the damage cap infringes upon any fundamental constitutional rights. A fundamental right is that which the Constitution explicitly or implicitly guarantees. Rodriguez, 411 U.S. at 33-34, 93 S.Ct. at 1296-1297. The petitioner and amicus NMTLA argue that the damage cap violates her right of access to the courts and her right to full recovery in tort. Neither of these \\\"rights\\\" is guaranteed explicitly in our constitution. We have declared, however, that the right of access to the courts is one aspect of the right to petition for redress of grievances, and we have acknowledged that right as one guaranteed by the first amendment to the federal constitution and also protected by both the United States and New Mexico Constitutions by the prohibitions against \\\"depriving a person of life, liberty or property without due process of law.\\\" Jir\\u00f3n v. Mahlab, 99 N.M. 425, 426, 659 P.2d 311, 312 (1983). We once again recognized a \\\"plaintiffs constitutional right to petition for redress\\\" in Otero v. Zouhar, 102 N.M. 482, 486, 697 P.2d 482, 486 (1985).\\nWith regard to whether the right to full recovery reaches fundamental status, the argument is that Article II, Section 4 of the New Mexico Constitution guarantees a fundamental right to be compensated fully and adequately for injuries that result from negligent behavior. That provision reads: \\\"All persons are born equally free, and have certain natural, inherent and inalienable rights, among which are the rights of enjoying and defending life and liberty, and of seeking and obtaining safety and happiness.\\\" N.M. Const, art II, \\u00a7 4. Some commentators assert that this is \\\"textual evidence of an intent on the part of the constitutional ratifiers to afford substantive protection against the power of the state to impair economic interests.\\\" Developments in The Law \\u2014 The Interpretation of State Constitutional Rights, 95 Harv.L.Rev. 1324, 1480 (1982). But because we do not think it necessary, we decline at this time to interpret this provision as implicitly guaranteeing a fundamental right to full recovery in tort actions, so as to trigger a strict scrutiny analysis.\\nAcknowledging, also, our recognition of a constitutional right of access to our courts, we do not apply strict scrutiny to the issue of full recovery, principally because we conclude that the damage cap is constitutionally invalid under the lesser, intermediate scrutiny test. It is thus unnecessary to impose the highest level of review.\\nWe are aware that in the history of the interpretation of the federal equal protection clause, the rational basis test generally has been minimal scrutiny in theory and has amounted to virtual judicial abdication in fact, whereas maximum scrutiny has been strict in theory and almost always fatal in fact. Gunther, 86 Harv.L.Rev. at 8. Strict scrutiny has operated as an anti majoritarian safeguard. Tribe, \\u00a7 16-31, at 1588; Learner, Restrictive Medical Malpractice Compensation Schemes: A Constitutional \\\"Quid Pro Quo\\\" Analysis to Safeguard Individual Liberties, 18 Harv. J. on Legis. 143, 152 (1981). Accordingly, the application of the strict scrutiny test has resulted in the virtual immunization of certain liberties from legislative affliction. \\\"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's fundamental rights may not be submitted to vote; they depend on the outcome of no elections.\\\" West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 1185, 87 L.Ed. 1628 (1943).\\nBy contrast, the rational basis test affords minimal scrutiny because of the concept that \\\"it is constitutionally appropriate to 'fight out the wise use of legislative authority in the forum of public opinion and before legislative assemblies rather than to transfer such a contest to the judicial arena,' since all the 'effective means of inducing political changes are left free.' \\\" Id.; see Cleburne, 473 U.S. at 441-42, 105 S.Ct. at 3255-56 (because of doctrine of separation of powers, courts should be reluctant to closely scrutinize economic and social legislation, but rather should employ rational basis test). The primary theoretical basis for deferring to the legislature when applying the rational basis test, then, is that political entities can respond best to the electorate and can experiment with and allocate the state's often limited resources in a manner that best reflects the concerns of their constituencies over social and economic issues. See Redish, Legislative Response to the Medical Malpractice Insurance Crisis: Constitutional Implications, 55 Tex.L.Rev. 759, 761 (1977); Tussman & tenBroek, The Equal Protection of the Laws, 37 Calif.L.Rev. 341, 366 (1949). In our own jurisprudence, we also have observed that courts should be hesitant to overturn a statute other than on fundamental rights grounds because the separation of powers doctrine mandates deference to a legislative determination of reasonableness. Edgington, 99 N.M. at 718, 663 P.2d at 377.\\nIn advancing the intermediate test as a third level of review, the Supreme Court has \\\"recognized that certain forms of legislative classification, while not facially invidious, nonetheless give rise to recurring constitutional difficulties\\\" and in those \\\"limited circumstances\\\" the Court seeks \\\"assurance that the classification reflects a reasoned judgment consistent with the ideal of equal protection by inquiring whether it may fairly be viewed as furthering a substantial interest of the State.\\\" Plyler, 457 U.S. 202, 217-18, 102 S.Ct. 2382, 2395. And although even the Supreme Court has presented the heightened scrutiny test in a myriad of fashions, it has been characterized, in whatever form, at least by a \\\"sharper focus\\\" on legislative classifications \\\"poised between the largely toothless invocation of minimum rationality and the nearly fatal invocation of strict scrutiny.\\\" Tribe, \\u00a7 16-32, at 1601; see Cleburne, 473 U.S. at 451, 105 S.Ct. at 3260 (Stevens, J., concurring) (standards of review for equal protection challenges reflect \\\"a continuum of judgmental responses to differing classifications which have been explained in opinions by terms ranging from 'strict scrutiny' at one extreme to 'rational basis' at the other\\\").\\nSome critics have said that when courts elect to apply the intermediate test, they abandon judicial objectivity and make subjective judgments that lack constitutional support, thereby succumbing to the temptation to usurp the legislature's function by making highly political decisions about certain social and economic issues. See, e.g., Redish, 55 Tex.L.Rev. at 782; Note, Fein v. Permanente Medical Group: Future Trends in Damage Limitation Adjudication, 80 Nw.U.L.Rev. 1643,1663-64 & 1673 (1986). But judicial scrutiny always requires judgments about legislative decisions, and that is particularly so when heightened scrutiny is called for. See Cleburne, 473 U.S. at 443, 105 S.Ct. at 3256; Coburn, 627 F.Supp. at 991. See generally Haines, General Observations on the Effects of Personal, Political, and Economic Influences in the Decisions of Judges, 17 Ill.L.Rev. 96, 112-14 (1922). We do not consider that the intermediate constitutional review process necessarily constitutes \\\"abandonment\\\" of any judicial responsibilities but, instead, hones the indispensable requirement of detached analytical examination of competing interests between legislative power and constitutional restraints.\\nTo support our application of the intermediate test we are impressed with Professor Tribe's observation that the heightened, intermediate standard of review is a judicial response to an awareness that the\\nall-or-nothing choice between minimum rationality and strict scrutiny ill-suits the broad range of situations arising under the equal protection clause, many of which are best dealt with neither through the virtual rubber-stamp of truly minimal review nor through the virtual death-blow of truly strict scrutiny, but through methods more sensitive to risks of injustice than the former and yet less blind to the needs of governmental flexibility than the latter. [Emphasis added.]\\nTribe, \\u00a7 16-32, at 1609-10; see Cleburne, 473 U.S. at 460,105 S.Ct. at 3265 (Marshall, J., dissenting) (\\\"level of scrutiny employed in an equal protection case should vary with 'the constitutional and societal importance of the interest adversely affected and the recognized invid\\u00ed\\u00f3\\u00fasness of the basis upon which the particularXclassification is drawn' \\\"). We agree that implementing, the intermediate test in appropriate circumstances narrows the wide 'gap between strict and minimal scrutiny, \\\"not by abandoning the strict but by raising the level of the minimal from virtual abdication to genuine judicial inquiry.\\\" Gunther, 86 Harv.L. Rev. at 24.\\nIt is clear from the foregoing discussion that the limitation of a full tort recovery at issue here under Section 41-11-1(1) implicates a substantial and important individual interest. For substantial and important individual interests, we invoke an intermediate standard of review because we think it best strikes the balance between the legislature's constitutional prerogative to deliberate over and counterbalance the variety of interests involved in social and economic issues, and the judiciary's constitutional responsibility to strictly scrutinize legislation that either infringes upon fundamental rights or impacts upon suspect classes. Viewing this constitutional balance within the separation of powers context, which is the gist of opposition to it, we are satisfied that we neither trample arbitrarily upon the legislature's preferred position of direct, political accountability to the electorate, nor do we forsake our duty to protect individuals from the deleterious effects of controversial social and economic legislation that, in this case at least, could result in economic devastation of innocent victims simply by the fortuitous happenstance .of the tortfeasor's status. We see no usurpation of power in a heightened scrutiny of legislation in those limited circumstances when the class implicated is so sensitive to injustice and the rights affected are so substantial and important that they warrant special judicial attention.\\nSection 41-11-1 tacitly makes three separate classifications: a class of victims suffering from injuries resulting from the negligence of a tavernkeeper as distinguished from victims of another tortfeasor's negligent conduct; a class of victims suffering from the negligence of tavernkeepers whose injuries amount to less than $50,000 lumped together with those victims whose injuries resulting from the same cause are in excess of that damage limitation; and a class of tortfeasors accorded the benefit of the $50,000 cap as distinguished from all other tortfeasors, most of whom are liable for the full amount of damages they cause. We believe that these classifications effect a substantial injustice in this case. The classifications infringe an individual's important interest to be compensated fully for his injuries, especially when, as is alleged in the instant case, they are a result of no fault of his own. This interest, in our view, certainly is amply important and substantial to justify the invocation of at least the heightened, intermediate test instead of the minimum rationality test. We are per suaded also that the class of tort victims affected by the damage cap is \\\"sensitive\\\" enough to the injustice wrought to warrant applying the heightened test. Consequently, we take the intermediate approach and analyze the constitutional challenge in this case under heightened scrutiny.\\nWe commence our examination by repeating that the court of appeals erred in its equal protection analysis of the damage limitation. A legislative classification not only must affect equally all persons within the class to which the legislation applies but, to begin with, the legislature must have a legitimate purpose for creating the class, and a constitutionally permissible reason for treating persons within that class differently from those without. See McLaughlin v. Florida, 379 U.S. 184, 190, 85 S.Ct. 283, 287, 13 L.Ed.2d 222 (1964). In light of those considerations, the court of appeals erred in concluding that the damage cap did not violate the equal protection clause because it applied equally to all persons affected by the dramshop act. \\\"Judicial inquiry under the Equal Protection Clause does not end with a showing of equal application among the members of the class defined by the legislation.\\\" Id. at 191, 85 S.Ct. at 288. No argument has been presented to us to persuade us that the classifications created by the legislation are constitutionally legitimate and, under the McLaughlin dictate, we have been unable to discern or discover any by our own reasoning processes.\\nPlaintiff has presented a prima facie showing of an arbitrary and unreasonable denial of equal protection and of a restriction on a plaintiffs right of access to the courts. On the other hand, respondent completely failed to carry its burden of demonstrating that any substantial interest of the state is furthered by the legislation. In the absence of any contrary showing by respondent, we cannot think of legitimate public good or supportive policy reasons that are promoted by the special protection of tavernkeepers in the dispensation of intoxicating liquor. We are distinctly unable to rationalize a legitimate or substantial reason for limiting the liability of a tavernkeeper who has a duty not to place drunks behind the wheel of a vehicle on the highway when, by contrast, a rancher or farmer is fully liable for negligently allowing his livestock to meander dumbly into the path of oncoming vehicles. See NMSA 1978, \\u00a7 30-8-13 (Repl.Pamp.1984) & 66-7-363 (Repl.Pamp.1987).\\nEven though we agree that the legislature most often is better suited to make such policy determinations, a heightened scrutiny of legislation that infringes substantial and important individual interests, such as we have here, compels us to the conviction that the liability cap works a manifest injustice on innocent tort victims and lacks any of the redeeming features entitling it to constitutional validity. Absolutely nothing was shown sufficient to overcome plaintiffs arguments, or to demonstrate that the damage limitation in Section 41-11-1(1) has a substantial relationship to a legitimate or important governmental purpose and we have been unable to fathom one. The cap on damages mandated by Section 41-11-1(1) simply does not withstand heightened scrutiny, and we hold it to be constitutionally invalid as violative of the equal protection clause.\\nTurning to the other issue, we acknowledge that, as in Bouldin v. Sategna, 71 N.M. 329, 378 P.2d 370 (1963), a substantial number of courts has not held owners liable for leaving the keys in their unattended vehicles and for the injuries to third persons as a result of the thefts and subsequent negligent operation of those vehicles. Those courts have concluded either that an owner owes no duty to the general public to guard against the risk of a thief's negligent operation of a vehicle in which the owner left his keys; that the theft and subsequent negligence of the thief could not reasonably be foreseen by the owner as a natural or probable consequence of leaving the keys in the ignition of the car; or have concluded that even if the owner was negligent, his actions were not the proximate cause of the injuries because the thief's actions constituted an independent, intervening cause.\\nAn emerging group of jurisdictions, on the other hand, has rejected the contention that an intervening criminal act automatically breaks the chain of causation as a matter of law, concluding instead that a reasonable person could foresee a theft of an automobile left unattended with the keys in the ignition and reasonably could foresee the increased risk to the public should the theft occur. In addition, a few courts, including some of those that earlier denied liability, have indicated a willingness to impose liability upon the owner under \\\"special circumstances.\\\" Courts looking at special circumstances seek to determine whether an owner's conduct enhanced the probability that his car would be stolen and thus increased the hazard to third persons. Considering special circumstances, then, is just another way of examining the degree of foreseeability of injury and whether the owner is subject to a duty to exercise reasonable care. Vadala v. Henkels & McCoy, Inc., 397 A.2d 1381 (Del.Super. 1979), listed some of the circumstances aiding the court in its resolution of a similar case:\\n(a) the vehicle in question is of a type which may attract potential intermeddlers who are unlikely to have the necessary knowledge and skill to operate it safely;\\n(b) that vehicle is capable of inflicting more serious injury and damage than an ordinary vehicle when not properly controlled;\\n(c) no security measures were taken after it became evident that the lock which secures the gate to the truck yard had been partially cut and an intoxicated individual was loitering nearby.\\nId. at 1383.\\nNMSA 1978, Section 66-7-353, which prohibits leaving a motor vehicle to stand unattended without \\\"first stopping the engine, locking the ignition, [and] removing the key,\\\" was enacted for the purpose of promoting public welfare and safety. Bouldin, 77 N.M. at 332, 378 P.2d at 372. Prevention of the kinds of unfortunate circumstances that occurred in this case from failure to comply with the statute would be conducive to promoting public safety. When \\\"a person by his own negligence produces a dangerous condition of things, which does not become active for mischief until another person has operated upon it by the commission of another negligent act, which might not unreasonably be foreseen to occur, the original act of negligence is then regarded as [a] proximate cause of the injury which finally results.\\\" Thompson v. Anderman, 59 N.M. 400, 412, 285 P.2d 507, 515 (1955).\\nSome of the members of this Court believe that our adoption of comparative negligence as the rule of law in this jurisdiction, Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981), commits us to the principles there expressed that if a jury finds more than one party to have been negligent, a verdict \\\"requiring wrongdoers to share the losses caused, at the ratio of their respective wrongdoing, fairly distributes the burden of fault\\\" and \\\"holds all parties fully responsible for their own respective acts to the degree that those acts have caused harm.\\\" Id. at 689-90, 634 P.2d at 1241-42. See, e.g., St. Sauver v. New Mexico Peterbilt, Inc., 101 N.M. 84, 87, 678 P.2d 712, 715 (1984); Ramirez v. Armstrong, 100 N.M. 538, 542-43, 673 P.2d 822, 827-28 (1983); Bartlett v. New Mexico Welding Supply, Inc., 98 N.M. 152, 158-59, 646 P.2d 579, 585-86 (Ct.App.), cert. denied, 98 N.M. 336, 648 P.2d 794 (1982). There is a divergence in the opinions of members of this Court, however, whether questions of fact are presented in any inquiry into whether an owner reasonably could foresee that his vehicle might be stolen if he left it unattended, unlocked, and with the keys in its ignition, and whether he reasonably could anticipate that the thief might drive negligently and injure someone, see Ney v. Yellow Cab Co., 2 Ill.2d 74, 83, 117 N.E.2d 74, 80 (1954), or whether Bouldin was correct in holding, as a matter of law, that such ensuing theft and subsequent negligence resulting in injury were not natural, foreseeable events attendant upon leaving one's keys in the vehicle.\\nConsequently, a majority of the Court being unable to reach agreement on the Bouldin issue at this time, we do not disturb the summary judgment entered by the trial court in favor of Bennett-Cathey.\\nWe remand the case to the district court for entry of judgment in the amount of $250,000 against defendant Carnegie. IT IS SO ORDERED.\\nSOSA, Senior Justice, concurs.\\nRANSOM, J., specially concurring.\\nSTOWERS, J., dissenting.\\nSCARBOROUGH, C.J., not participating.\\n. See City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985); see also Torres v. Village of Capitan, 92 N.M. 64, 69, 582 P.2d 1277, 1282 (1978); Vandoben v. Constructors, Inc., 101 N.M. 109, 112, 678 P.2d 1184, 1187 (Ct.App.), cert. denied, 101 N.M. 77, 678 P.2d 705 (1984).\\n. Sanchez v. M.M. Sundt Constr. Co., 103 N.M. 294, 297, 706 P.2d 158, 161 (Ct.App. 1985); Garcia v. Albuquerque Pub. Schoob Bd. of Educ., 95 N.M. 391, 393, 622 P.2d 699, 701 (Ct.App. 1980), cert. quashed, 95 N.M. 426, 622 P.2d 1046 (1981).\\n.See, e.g., Lucas v. United States, 807 F.2d 414, 422 (5th Cir.1986); Hoffman v. United States, 767 F.2d 1431, 1436-37 (9th Cir.1985); Boyd v. Bulala, 647 F.Supp. 781, 787 (W.D.Va.1986) (but holding that damage cap violates seventh amendment jury trial provision); Fein v. Permanente Medical Group., 38 Cal.3d 137, 162, 695 P.2d 665, 681, 211 Cal.Rptr. 368, 386 (1985), appeal dismissed, 474 U.S. 892, 106 S.Ct. 214, 88 L.Ed.2d 215 (1985); Bernier v. Burris, 113 Ill.2d 219, 228-29, 100 Ul.Dec. 585, 590, 497 N.E.2d 763, 768 (1986); Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 397, 404 N.E.2d 585, 601 (1980); Prendergast v. Nelson, 199 Neb. 97, 113\\u2014 14, 256 N.W.2d 657, 669 (1977).\\n. See Detar Hosp., Inc. v. Estrada, 694 S.W.2d 359 (Tex.Civ.App.1985); Malone & Hyde, Inc. v. Hobrecht, 685 S.W.2d 739 (Tex.Civ.App. 1985); Baptist Hosp. of Southeast Tex., Inc. v. Baber, 672 S.W.2d 296, 298 (Tex.Civ.App.1984), cert. denied, 714 S.W.2d 310 (Tex.1986).\\n. See, e.g., Coburn v. Agustin, 627 F.Supp. 983, 995 (D.Kan.1985); Jones v. State Bd. of Medicine, 97 Idaho 859, 871, 555 P.2d 399, 411 (1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977); Farley v. Engelken, 241 Kan. 663, 672, 740 P.2d 1058, 1064 (1987); Sibley v. Board of Supervisors of La. State Univ., 477 So.2d 1094, 1107 (La. 1985); Carson v. Maur er, 120 N.H. 925, 932, 424 A.2d 825, 830 (1980); Ameson v. Olson, 270 N.W.2d 125, 135 (N.D. 1978).\\n. See Vines v. Plantation Motor Lodge, 336 So.2d 1338, 1340 (AIa.1976); Bennett v. Artie Insulation, Inc., 253 F.2d 652, 654 (9th Cir.1958); Richards v. Stanley, 43 Cal.2d 60, 65, 271 P.2d 23, 26-27 (1954); Lambotte v. Payton, 147 Colo. 207, 209, 363 P.2d 167, 168 (1961); Gamble v. Kinch, 102 Idaho 335, 337, 629 P.2d 1168, 1170 (1981); Dillner v. Maudlin, 161 Ind.App. 204, 205, 314 N.E.2d 794 (1974); Roadway Express, Inc. v. Piekenbrock, 306 N.W.2d 784, 786 (Iowa 1981); Roach v. Liberty Mut. Ins. Co., 279 So.2d 775, 777 (La.Ct.App.), cert. denied, 281 So.2d 756 (La.1973); Berluchaux v. Employers Mut. of Wausau, 194 So.2d 463, 465 (La.Ct.App.), cert. denied, 250 La. 533, 197 So.2d 79 (1967); Galbraith v. Levin, 323 Mass. 255, 259, 81 N.E.2d 560, 563-64 (1948); Permenter v. Milner Chevrolet Co., 229 Miss. 385, 404, 91 So.2d 243, 252 (1956); Dix v. Motor Mkt., Inc., 540 S.W.2d 927, 932-33 (Mo.Ct.App.1976); Flannery v. Sample Hart Motor Co., 194 Neb. 244, 248, 231 N.W.2d 339, 342 (1975); Pendrey v. Barnes, 18 Ohio St.3d 27, 29, 479 N.E.2d 283 (1985); Felty v. City of Lawton, 578 P.2d 757, 760 (Okla.1977); Liney v. Chestnut Motors, Inc., 421 Pa. 26, 28, 218 A.2d 336, 338 (1966); Keefe v. McArdle, 109 R.I. 90, 92, 280 A.2d 328, 329 (1971); Stone v. Bethea, 251 S.C. 157, 164, 161 S.E.2d 171, 174-75 (1968); Parker v. Charlie Kittle Pontiac Co., 495 S.W.2d 810, 812 (Tenn.1973); Pratt v. Thomas, 80 Wash. 2d 117, 119, 491 P.2d 1285, 1286 (1971); Meihost v. Meihost, 29 Wis.2d 537, 546, 139 N.W.2d 116, 121 (1966).\\n. See Gaither v. Myers, 404 F.2d 216, 221 (D.C. Cir.1968); Ross v. Hartman, 139 F.2d 14, 16 (D.C.Cir.1943), cert. denied, 321 U.S. 790, 64 S.Ct. 790, 88 L.Ed. 1080 (1944); Vadala v. Henkels & McCoy, Inc., 397 A.2d 1381, 1383-84 (Del. Super.1979); Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54, 56 (Fla.1977); Kacena v. George W. Bowers Co., 63 Ill.App.2d 27, 39, 211 N.E.2d 563, 569 (1965); Davis v. Thornton, 384 Mich. 138, 146, 180 N.W.2d 11, 15 (1970); Zinck v. Whelan, 120 NJ.Super 432, 445, 294 A.2d 727, 733-34 (1972); Itami v. Burch, 59 Or.App. 400, 402, 650 P.2d 1092, 1093 (1982).\\n. See Palma v. United States Indus. Fasteners, Inc., 36 Cal.3d 171, 185, 681 P.2d 893, 902, 203 Cal.Rptr. 626, 634 (1984); Smith v. Shaffer, 395 N.W.2d 853, 856 (Iowa 1986); Illinois Farmers Ins. Co. v. Tapemark Co., 273 N.W.2d 630, 635 (Minn. 1978); Dix v. Motor Mkt., Inc., 540 S.W. 2d 927, 932 (Mo.Ct.App.1976); Felty v. City of Lawton, 578 P.2d 757, 761 (Okla.1977).\\n. See Hosking v. Robles, 98 Cal.App.3d 98, 102-03, 159 Cal.Rptr. 369, 372 (1979) (surveying what constitutes \\\"special circumstances\\\" in California); Smith v. Shaffer, 395 N.W.2d 853, 856 (Iowa 1986) (leaving keys in unattended car's ignition in high crime area near several bars constitutes special circumstances); State Farm Mut. Auto. Ins. Co. v. Grain Belt Breweries, Inc., 309 Minn. 376, 381, 245 N.W.2d 186, 189 (1976) (same); Lavo v. Medlin, 705 S.W.2d 562, 564 (Mo.Ct.App.1986) (implying that special circumstances include parking unusually dangerous vehicle in high crime area with keys in ignition); Zinck v. Whelan, 120 N.J.Super. 432, 450, 294 A.2d 727, 736 (1972) (special circumstances are position and location of parked vehicle, access thereto, its operational condition, proximity to surveillance, and length of time elapsing from theft to accident).\"}"

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+"{\"id\": \"206006\", \"name\": \"TERRITORY OF NEW MEXICO, Appellant, v. GEORGE B. WOODWARD, et al, Appellees\", \"name_abbreviation\": \"Territory of New Mexico v. Woodward\", \"decision_date\": \"1909-08-28\", \"docket_number\": \"No. 1211\", \"first_page\": \"161\", \"last_page\": 164, \"citations\": \"15 N.M. 161\", \"volume\": \"15\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T20:16:42.525067+00:00\", \"provenance\": \"CAP\", \"judges\": \"Abbott, Mechem and Cooley, Associate Justices, did not participate in this decision.\", \"parties\": \"TERRITORY OF NEW MEXICO, Appellant, v. GEORGE B. WOODWARD, et al, Appellees.\", \"head_matter\": \"[No. 1211,\\nAugust 28, 1909.]\\nTERRITORY OF NEW MEXICO, Appellant, v. GEORGE B. WOODWARD, et al, Appellees.\\nSYLLABUS.\\nWhere there is no undertaking on the part of the sureties in an appearance bond that the defendant should appear-elsewhere than in the county named or that the defendant should obey the further orders of the court, there could be-no forfeiture of the bond if the defendant defaulted after having obtained a change of venue to another county.\\nAppeal from the District Court for Bernalillo County before Ira A. Abbott, Associate Justice.\\nAffirmed.\\nJames M. IIervey, Attorney General, for Appellant.\\nAdmitting a defendant to bail and fixing the amount thereof, are acts judicial in their nature. Gregory v. State, 94 Ind. 384; Hunt v. H. S. 63 Fed. 568, 11 C. C. A. 340; Callahan v. State, 60 Ala. 65; Pinson v. State,'28 Ark.. 397; Moore v. State, 28 Ark. 480; Dickinson v. Kings-bury, 2 Day. 1; Simpson v. Bobert, 35 Ga. 180; Wallenweber v. Comm., 3 Bush. 68; Wilson v. Commonwealth, 99 Ivy. 167; State v. Jones, 3 La. Ann. 9; State v. Gilbert, 10 La. Ann. 524; State y. Wyatt, 6 La. Ann. 701; State v. McKeown, 12 La. Ann. 596; State v.\\u2019 Ansley, 13 La. Ann. 298; State v. Badon, 14 La. Ann. 783; State v. Hendrick^ 5 So. 177; State v. Jenkins, 24 Mo. App. 433; State v. Houston, 74 N. C. 54-9; Hodges v. State, 20 Tex. 493.\\nIf the condition of the bond had used merely the vords of the statute, the obligation would still be the same as that which is plainly expressed in the bond as given. C. L. 1897, sec. 3386; Norfolk v. People, 43 111. 10; Gallagher v. People, 88 111. 337; State v. Byan, 23 Iowa 406; People v. Hanow, 106 Mich. 421; State v. Brown, 16 Iowa 314; State v. Benzion, 79 Iowa 467; People v. Gordon, 39 Mich. 261; Crawford v. Yinton, 302 Mich. 85-6; Beese v. H. S. Wall. 18.\\nAn order of change of venue must be considered as within the contemplation of the sureties executing a bail bond and entering into and forming part of their contract. Davis v. South Carolina, 107 H. S. 600-1; Beasley v. State, 53 Ark. 67; State v. Brown, 16 la. 314; Barney y. Comm., 83 Ky. 534; State v. Stout, 11 N. J. L. 124; Baker v. State, 22 S. W. 1039.\\nProceedings by scire facias are proper upon a -forfeited bail bond. IT. S. v. Insley, 54 Fed. 221, 4 C. C. A. 298-9; State v. Glass, 9 la. 325; State v. Heed, 62 Mo. 559; Saunders\\u2019 Pleading 750; Tidd\\u2019s Practice 1091; Sans t. People, 3 Gilm 330; Comm. v. Green, 12 Mass. 2.\\nW. B. Ci-iilders for Appellees.\\nAction on an appearance bond is a civil action for the enforcement of a private right. C. L. 1897, sec. 2685, sub-secs. 17, 19; 19 Ene. P. & P. 307; Com. v. McNeill, 19 Pac. 136; 3 Ene. P. & P. 340, and cases cited; People v. Love, 19 Cal. 676; Brooks v. H. S. 6. N. M. 72; Himiston v. Smith, 21 Cal. 134; De Baca v. Wilcox, 11 N. M. 346; Browne & Manzanares Co. v. Chaves, 9 N. M. 316; Cameron v. Young, 6 How. Pr. 372; Alelen v. Clark, 11 How Pr. 209.\\nThe bond must follow the provisions of the Statute. C. L. 1897, sees. 3385, 3386, 3387, 3394; 5 Oye. 16, 85, note 30, 110, 124, note 10; Com. v. Thompson, 33 S. W. 1103: 16 Ene. P. & P. 837; People v. Cohen, 118 Cal. 74, 50 Pac. 20; State v. Pratt, 50 S. W. 113; U. S', v. Hudson, 65 Fed. 68.\\nThe conditions of the bond cannot be varied or changed. IT. S. v. Rundlett, 27 Fed. Cases, No. 16,208; H. S. v. Brooks, 6 N. M. 72; State v. Jones^ 29 Ark. 127; Reese v. H. S., 9 Wall. 13; Davis v. S. C., 107 H. S. 601; State v. Huston, 74 N. C. '175; H. S. v. Evans, 2 Federal 147; State v. Walker, 1 Mo. 389, 546; State v. Miles, 13 N. C. 555 ; State v. Miller, 31 Texas 564; 5 Century Digest, sec. 184;'State v. Colwell, 28 S. W. 4; State v. Randolph, 26 Mo. 213; State v. Nelson, 28 Mo. 13; State v. Fergusson, 50 Mo. 409; State v. Murdock, 81 N. W. 447.\\nThe crime charged in the bond is not sufficiently described. Heilman v. State, 25 S. W. 1120; Bonner v. Com., 85 S. W. 1185; Com. v. Thompson, 33 S. W. 113; State v. McGuire, 43 N. W. 688; Griffin v. State, 48 Ind. 258.\\nWhere bail is taken contrary to the provisions of some express statute the obligation is rendered void. State v. Satterwhite, 20 S. C. 536; Duckett v. State, 51 Miss. 799.\", \"word_count\": \"1292\", \"char_count\": \"6906\", \"text\": \"OPINION OP THE COURT.\\nPARKER, J.\\nThis was a proceeding to recoven the penalty upon an .appearance bond. Several questions are presented by the record but we do not deem it necessary to consider more than the one fundamental question which, if decided correctly, shows no cause of action which can be maintained. The condition of the bond is .as follows :\\n\\\"Now, if the said C. B. Woodward shall well and truly appear at the next ensuing term of the District Court of the Second Judicial District of New Mexico to be begun and held in and for the said County of Valencia on the first Monday in March, A. D., 1903, on the first day of said term, then 4 and there to answer any indictment that may be found against him, in said court, for said alleged crime, and shall remain in attendance upon said court from day to day, and from term to term, until discharged by authority of law, then this obligation to be void, otherwise to remain in full force and effect.\\\"\\nIt appears that the defendant was examined-by the District Judge of the Second Judicial District, sitting as Committing Magistrate, and committed to await the action of the grand jury at the next term of the District Court in Valencia County. At that term the defendant was indicted on the charge. At the succeeding term he applied for and obtained a change of venue of the cause to Bernalillo County. At the next ensuing term of the District Court for that county the cause was continued. At the next term the defendant defaulted and his bond was forfeited. This proceeding was then instituted against his sureties on the bond to recover the penalty.\\nThe court below held there was no right to recover and this was correct. There was no undertaking on the part of the sureties that the defendant should appear elsewhere than in Valencia County nor was there provision in the condition of the bond that defendant should obey the further orders of the court. Had this been the case the defendant might have been ordered to give a new bond on change of venue, and,, in default thereof, have been committed. Or, perhaps, he might have been ordered by the court, on change of venue, to .appear in Bernalillo County and remain in attendance on that court until discharged, and the sureties would still be liable upon their undertaking. But this bond contained no such condition and the obligation was solely to appear in Valencia County until discharged. There could be no forfeiture of the bond for failure to appear elsewhere .and his appearance there was discharged by the order changing the venue.\\nFor the reason stated the judgment of the court below will be affirmed and it is so ordered.\\nAbbott, Mechem and Cooley, Associate Justices, did not participate in this decision.\"}"

nm/2398688.json

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+"{\"id\": \"2398688\", \"name\": \"HILL v. HART, ET AL.\", \"name_abbreviation\": \"Hill v. Hart\", \"decision_date\": \"1917-08-23\", \"docket_number\": \"No. 2025\", \"first_page\": \"226\", \"last_page\": 235, \"citations\": \"23 N.M. 226\", \"volume\": \"23\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T21:29:10.932939+00:00\", \"provenance\": \"CAP\", \"judges\": \"HANNA, C. J., and PARKER, X, concur.\", \"parties\": \"HILL v. HART, ET AL.\", \"head_matter\": \"[No. 2025.\\nAugust 23, 1917.]\\nHILL v. HART, ET AL.\\n[Rehearing Denied October 3, 1917.]\\nSYLLABUS BY THE COURT.\\n1. There is no conflict between the written \\u25a0 and printed portions of a promissory note wher'e the written portion of the note provides for the payment of interest, and the printed portion provides, \\u201cwith interest at the rate of nine per cent-per annum from maturity date,\\u201d the word \\u201cdate\\u201d being written, it being the intention of the parties that the amount specified should draw interest only fr'om maturity date; hence there was no occasion to apply the rule that the written portion should prevail over the printed portion. 231\\n2. The principle that parol evidence is not admissible to vary the terms of a written instrument is not infringed when the evidence is used for the purpose of ascertaining the meaning; of doubtful expressions in the instrument. 232\\n3. Where a promissory note is payable to a given person or order, and is transferred to another by such person, without indorsement, such note is subject to any defense which existed against the note in the hands of the original payee.\\nPage 234\\nAppeal from District Court, Bernalillo County; M. C. Mechem, Judge.\\nSuit for specific performance by Catherine Hill against Martha E. Hart and others. Decree for plaintiff, and defendants appeal.\\nAffirmed.\\nGeorge S. Kloek, of Albuquerque, for appellants.\\nThe note and contract constituted a complete transaction and parol evidence was inadmissible to vary terms thereof.\\nLocke v. Murdoch, 151 Pac. 298.\\n\\u201cWhere a contract is partly printed and partly in writing, the written matter must prevail over the printed in ease of conflict between them.\\nHill v. Miller, 76 N. Y. 32; Clark v. Woodruff, 83 N. Y. 518; Harper v. Albany Mutual Insurance Co., 17 N. Y. 194; Thomas v. Laggart, 209 II. S. 385, 52 L. Ed. 845; Chadsey v. Guyon, 97 N. Y. 5333.\\nWhere the contract provides for the payment of a certain rate of interest per annum, it only fixes the rate to be paid and has no reference to the time when such interest shall be paid, and consequently interest so reserved becomes due and payable only with the principal.\\u201d\\nC3rclopedia of Law and Procedure, Vol. 22, pages 1482 and 1463.\\nAgain \\u201cA stipulation for interest at a specified rate per annum does not import a contract to pay interest annually. The term employed only affording a measure for the computation of interest.\\u201d\\nAmerican and English Encyclopedia of Law, Second Edition, Yol. 16, page 1071; Ramsdell v. Mulett, 50 Nans. 440 (C. E.), 31 Pac. 1092; Motsinger v. Miller, 59 Kans. 575; ICoehring v. Nrreminghoff, 61 Mo. 406 (S. C.), 21 Am. Eep. 402; Leonard v. Phillips, 39 Mich. 182 (S. C.) 33, Am. Eep. 370; Cooper v. Wright, 23 1ST. J. Law, 200.\\nEor definitions of corroborative evidence, see:\\nG-ildersleeve v. Atldnson, 6 N. M. 250, 27 Pac. 477; Ityerts v. Robinson, 9 N. M. 427, 54 Pac. 932; Eadcliffe y. Chaves, 15 N. M. 258, 110 Pac. 699; Childers v. Hub-bell, 15 N. M. 450, 110 Pae. 1051.\\nNeil B. Field, of Albuquerque, for appellee.\\nWhere terms of contract are obscure or uncertain, evi dence of antecedent negotiations is admissible to enable court to put itself in place of parties and view it as they did.\\n1 Addison on Cont. Sec. 221; Nash v. Townc, 72 U. S. 689; Bartels y. iBrain, 44 Pac. (Utah) 715; 4 Wigmoro on Evid. Sec. 2465; Gill v. Ferrin, 71 N. H. 421; Lonergan v. Beauford, 148 U. S. 581; The Barnstable, 84 Fde. 895.\\nContracts, where ambiguous, will be construed most strongly against the maker.\\nTexas and' Pacific B. C'o. y. Beiss, 183 U. S. 621, 626; Boyal Ins. Co. y. Martin, 192 U. S. 149, 162; Christian y. First Nat\\u2019l. Bank, 155 Fed. 705, 709; Noonan y. Bradley, 9 Wall. 394.\\nPerson taking negotiable paper without endorsement is not holder in due course.\\nTrust Co. y. National Bank, 101 U. S. 68; Osgoods Adm. v. Artt, 17 Fed. 575.\\nIt is a canon for the interpretation of contracts that the practice of the parties under them may furnish a solid basis upon which their construction may rest.\\nChicago Great Western B. Co. v. Northern Pacific B. Co., 101 Fed. 792.\", \"word_count\": \"3310\", \"char_count\": \"18912\", \"text\": \"OPINION OP THE COURT.\\nBOBEBTS, J.\\nThis was a suit for the performance of a contract for the purchase of certain real estate described in the complaint, entered into by appellant and one Henry, deceased, and to quiet title to the same real estate, appellants being the heirs at law of Iienry. The facts, in brief, are that some time prior to the execution of the contract which forms the subject of this action Dr. Iienry entered into a contract for the sale of certain real estate in Albuquerque with one Annie Anderson, who was the mother of the appellee, and Mrs. Anderson was placed in possession of the premises under the contract. Mrs. Anderson paid $90 on account of the contract, and then found herself unable to go on with it, and the appellee applied to Dr. ITcnry to know! if it could not be assigned over to her, as she would have to make the payments. It appears that a deed which had been executed by Dr. Henry to Mrs. Anderson, but was not delivered to her, was altered by erasing the name of Mrs. Anderson and inserting the name of Catherine Hill, as grantee, and that a promissory note was prepared by Henry and submitted to appellee for her signature. The material portion of the note is here inserted, that portion in uniting being underscored:\\n$1900. Albuquerque, New Mexico, March 12, 1917.\\n\\\"-- after' date, for value received waiving grace and protest, I, we, or either of us, jointly and severally promise to pay to the order of J. A. Henry or order at the First National Bank of Albuquerque, Nineteen Hundred dollars to bq paid as follows: \\u00a1$70 on 4-12-07 and $20 on 5-12-07 and $20 on the 12th of each and every succeeding months till the whole amount with interest is paid, Dollars with interest at the rate of nine per cent, per annum from Maturity date until paid.\\\"\\nOn the same day and concurrent with the signing of said note, the following memorandum of agreement was signed by Henry and accepted by appellee, viz.:\\nAlbuquerque, N. M., Mch. 12-07-\\n\\\"I have this day made a deed to Miss Catherine Hill to frac. Lots No. 10, 11 and 12 in block No. 3 Hughes Hiland Addition to the City of Albuquerque. Said deed to be delivered to her or assigns on the payment in full with interest a certain note of nineteen hundred dollars ($1,900) of even date (March 12-07) signed by said Catherine Hill and made payable to J. A. Henry, or his assigns. To be paid as follows: $70 Apr. 12-07 and $20 May 12-07, and $20 on the 12th of each and every succeeding month till the full amount is1 paid.\\n\\\"(Signed) J. A. HENRY.\\n\\\"The above agreement is the agreement between J. A. Henr'y and myself.\\n\\\"(Signed) MISS CATHERINE HILL.\\\"\\nThese papers, together with the deed, were placed in an envelope and Henry signed a memorandum of escrow, in words as follows:\\n\\\"Contract between J. A. Henry and Catherine Hill and deed to ber for Frac. Lots 10, 111 and 12,. Blk. 3, Hunings Highland Add. The said deed to be delivered to her when she pays in full a note for $1,900 with interest as specified in May 24, 1908-\\n\\\"(Signed) J. A. HENRY.\\\"\\nIt does not appear that Miss I-Iill was present when the escrow memorandum was signed, but that paper is dated May 24th. The deed was acknowledged May 4, 1908. The appellee, with her mother and stepfather, continued in possession of tire property until the death of her stepfather in 1907, and the death of her mother pending this suit, and until the time of the trial. Dr. Henry died in July, 1908, and appellee continued to pay the monthly installments without anything having been said to her about interest until July, 1914. Dr. Henry's estate was settled and the administrator was discharged on June 4, 1912. In July, 1914, Mrs. Hart, the administratrix, first demanded of appellee that she pay interest on the note. Appellee, however, never recognized any liability for interest. Appellant sought to show that A7ita O. Henry, one of the heirs at law, became owner of this note in 1911 through some arrangement made between the heirs of Henry, and that she thought at the time she became owner of the note that it was an interest-bearing obligation. The note was never indorsed to Yita O. Henry, and the trial court held that she took the note subject to all the defenses which might have been made against it in the hands of the original payee; that Yita O. Henry did not receive the note by indorsement, and that she was not a holder for value in due course, within the meaning of our statute or of the law merchant. The trial court admitted parol evidence to be introduced relative to the facts and circumstances attending the execution of the contract and note and as to certain statements made by Dr. Henry at that 'time. The court found that the note in question had been fully paid; that it was the intention of the parties that it should bear interest only from maturity; and decreed specific performance of the contract.\\n\\\"While appellant has assigned 51 grounds of error, we are of the opinion that three questions are decisive of the case: First, under the terms of the note and contract, was interest payable from date or from maturity ? Second, assuming that the contract was ambiguous as to the interest provision, did the court commit error in permitting parol evidence to be introduced as to the facts and circumstances attending the execution of the\\u00a1 contract and the agreement which led up to its execution? Third, the note not being indorsed to Tita O. ITenry, was it subject to any defense which existed against the original holder ?\\nAs to the first proposition, it is appellant's contention that there is a conflict between the written and the printed portions of the note,, and that under subdivision 4, \\u00a7 23, of the Negotiable Instrument Law (section 611, Code 1915), the written provision must prevail. In this same section it is provided that, where an instrument provides for the payment of interest without specifying the date from which the interest is to run, the interest runs from date of the instrument, and, if the interest is undated, from the issue thereof. In this case, however, the note, after providing for the payment of interest, specifies when the interest is to begin, namely, from maturity date. A later clause in. the note provides that if any payment becomes due and is not paid, then the whole amount becomes due. It is apparent, we think, from the face of the note, that there is no conflict between the written and printed portions, but that it was the intention of the parties that the amount specified should draw interest only from the \\\"maturity date.\\\" There being no conflict, there was no occasion for a resort to the statute, nor does this construction result in creating a conflict between the contract and the note. The note and the contract being executed at the same time and as a part of the same contract, they must, of course, be construed together. In Elliott on Contracts, \\u00a7 1522, it is said:\\n\\\"Several instruments which refer to the same subject-matter between the same parties and made as parts' of substantially one transaction are considered as one contract, and receive the same construction as if their several provisions were in one and the same instrument. This principle is of wide application and the illustrative cases are numerous. Thus, where the making of a. note is accompanied by an agreement in relation thereto, the note and the agreement are to be taken together', and form one entire transaction.\\\"\\nHeading the contract and the note together, there is no conflict between them. While the note provided for the payment of the debt in full, with interest, Ave look to the provisions of the note to see from what date the interest Avas to run, and there find it plainly expressed that it is to run from maturity date.\\nIf it be assumed that the language employed in the note and contract was ambiguous and uncertain, this uncertainty was cleared up by the introduction of parol evidence as to the facts and circumstances relative to the agreement between Dr. Henry and appellee. Appellee testified fully as to such facts and circumstances, and stated that Dr. Henry said to her that $1,900 was to be the full amount which she should pay for the house. This evidence, given by appellee, was corroborated by her brother, Avho Avas present at the time of the execution of the contract. Appellant argues that the court committed error in admitting this evidence and in holding that the testimony of appellee Avas sufficiently corroborated under our statute. It is well settled that, Avhere the terms of a contract are obscure and uncertain, evidence of antecedent negotiations and of the facts and circumstances surrounding the parties is admissible to enable the court to put itself in the place of the parties to the contract and to view it as they vieAved it. Appellee did not seek by parol evidence to show a contemporaneous oral agreement covering the subject-matter of the contract and inconsistent with the Avriting, but sought to show that the Avriting expressed the intention of the parties, and offered the antecedent negotiations only as shedding light upon the meaning of the words used by the parties to the transaction. The principle that parol evidence is not admissible to vary1 the terms of a Avritten instrument is not infringed Avhen the evidence is used for the purpose of ascertaining the meaning of doubtful expressions in the instrument.\\n\\\"To enable us also to arrive at the real intention of the parties, and to make a correct application of the words and language of the contract to the subject-matter thereof, and the objects professed to be described, all the surrounding facts and circumstances may be taken into consideration, The law does not deny to the reader the same light and information that the writer' enjoyed; he may acquaint himself with the persons and circumstances which are the subject of the allusions and statements in the writing, and is entitled to place himself in the same situation as the party who made the contract to view the circumstances as he viewed them, and so judge of the meaning of the words and of the correct application of the language to the things described.\\\" 1 Addison on Con. \\u00a7 221.\\n, \\\"Courts, ire the construction of contracts, look to the language employed, the subject-matter, and the surrounding circumstances. They) are never shut out from the same light which the -parties enjoyed when the contract was executed, and, in that view, they are entitled to place themselves in the same situation as the parties who made the contract, so as to view the circumstances as they viewed them, and so to judge of the meaning of the words and of the correct application of the lanugage to the things described.\\\" Nash v. Towne, 5 Wall. (72 U. S.) 689, 699, 18 L. Ed. 527.\\n\\\"The evidence objected to was not admitted to add to, take from, or to change in any r'espeet the language of the writing. There was no intention of admitting any other language of the contract than that contained in the written instrument. The object of the evidence was to place the facts in view of the parties when they made the lease before the court, when construing it. In order to determine whether a man has acted reasonably, we should know the facts and circumstances in view of which he acted. And, to determine the use that the parties deemed reasonable, the court should know the facts from which they reasoned. In view of the fact that the particular use to which the land was to be put by the lessee was not mentioned in the lease, it was proper to admit evidence tending to show that the parties intended the land should be used for brickmaking purposes; and it was not error to show the understanding of the parties by their declarations in -the form of a verbal agreement, and that the lessor, after the lease was executed, saw the lessee excavating the land and making the brick of it, without objection.\\\" Bartels v. Brain, 13 Utah, 162, 44 Pac. 715.\\nProf. TYigmore says:\\n\\\"The antiquated notion, that a document must be construed solely within its four corners, no matter, how puzzling the problem, served for a time to retard the full appreciation of sound doctrine. But it was well settled by the middle of the 1800's in England; the case of Macdonald v. Longbottom, in which' 'your wool' was to be interpreted, served to mark the period of full conviction. In the United States the principle has also received ample sanction and illustration.\\\" 4 Wig-more. on Evidence, \\u00a7 2465.\\nThis court is in full accord with Mr. Wigmore. See Schwentker v. Hubbs, 21 N. M. 188, 153 Pac. 68; Ellis v. Stone, 21 N. M. 730, 158 Pac. 480, L. R. A. 1916F, 1228.\\nIn this connection it is perhaps proper to refer to the objection raised by appellant to the effect that the evidence of the brother was not sufficiently corroborative of that given by appellee to warrant the judgment, under section 2175, Code 1915. The question as to the proper construction of this statute, and as to the quantum of corroboration necessary, was fully discussed by this court in the case of Union Land & Grazing Co. v. Arce, 21 N. M. 115, 152 Pac. 1143. The evidence offered, we believe, affords sufficient corroboration, and, as the statute and its proper construction was fully discussed in the case referred to, nothing would be gained' by a further consideration of this question.\\nWhat we have heretofore said under the first proposition discussed possibly renders a consideration of the third point stated unnecessary, but, as it is strenuously urged by appellant, we will discuss it. The note was not indorsed, notwithstanding which fact appellant contends that it was not subject to extraneous proof for the purpose of explaining the claimed apparent conflict between the written and the printed portions of the same. The note was payable to order. By section 55 of the Njegotaible Instrument Act (section G43, Code 1915) it is provided:\\n\\\"Where the holder of an instrument payable to his order transfers it for value without indorsing it, the transfer vests in the transferee such title as the transferor had therein, and the transferee acquires, in addition, the right to have the indorsement of the transferor. But for the purpose of determining whether the transferee is a holder in due coruse, the negotiation takes effect as of the time when the indorsemnt is actually made.\\\"\\nUnder this section, the note being- so transferred, without indorsement, the holder acquired only such title thereto as the transferor had in the note, and it was subject to any defense which existed against the note in the bands of the original payee. This being truej the fact that Vita O. Henry accepted the note as an interest-bearing obligation \\\"from date\\\" becomes of no importance.\\nFor the foregoing reasons the judgment of the district court will be affirmed, and it is so ordered.\\nHANNA, C. J., and PARKER, X, concur.\"}"

nm/2736499.json

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+"{\"id\": \"2736499\", \"name\": \"Marie Elaine KOTROLA, Plaintiff-Appellant, v. Joe S. KOTROLA, Defendant-Appellee\", \"name_abbreviation\": \"Kotrola v. Kotrola\", \"decision_date\": \"1968-06-17\", \"docket_number\": \"No. 8458\", \"first_page\": \"258\", \"last_page\": 260, \"citations\": \"79 N.M. 258\", \"volume\": \"79\", \"reporter\": \"New Mexico Reports\", \"court\": \"Supreme Court of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T21:30:11.193490+00:00\", \"provenance\": \"CAP\", \"judges\": \"MOISE and CARMODY, JJ., concur.\", \"parties\": \"Marie Elaine KOTROLA, Plaintiff-Appellant, v. Joe S. KOTROLA, Defendant-Appellee.\", \"head_matter\": \"442 P.2d 570\\nMarie Elaine KOTROLA, Plaintiff-Appellant, v. Joe S. KOTROLA, Defendant-Appellee.\\nNo. 8458.\\nSupreme Court of New Mexico.\\nJune 17, 1968.\\nMcAtee, Marchiondo & Michael, Albuquerque, for plaintiff-appellant.\\nBotts, Botts & Mauney, Albuquerque, for defendant-appellee.\", \"word_count\": \"859\", \"char_count\": \"4993\", \"text\": \"OPINION\\nNOBLE, Justice.\\nJoe S. Kotrola was granted a decree of divorce from Marie Elaine Kotrola in 1961. Finding the mother unfit to have custody of two minor children, Jeannine Marie, two and one-half years old, and Yvonne Denise, one year old, the court awarded their custody to the maternal grandmother with a provision that in the event the children's father, who was on submarine duty, should thereafter be stationed in Albuquerque, a motion for change of custody would be entertained. In 1966, both the mother and father of the children filed motions seeking their custody. Custody was awarded to the father, Joe S. Kotrola, and the plaintiff below, Marie Elaine Kotrola, now Marie Elaine Clum, has appealed.\\nIn this proceeding for change of custody the court found that the mother had remarried; had conducted herself in a prop-' er manner since the 1961 divorce decree; had visited the children several times each week and had them in her home on occasions; had completed a secretarial course; and was employed. The court also found that another child of the mother by a prior marriage who had been awarded to the custody of the mother was raised in the home of the maternal grandmother.\\nThe divorce decree determined that the father was a fit person to have custody of the children and that he was on active submarine duty. In this proceeding the court further found that Joe S. Kotrola had remained on active submarine duty since h'is divorce; had remarried and maintained a home in Honolulu, Hawaii; and that' he had always been a fit person to have the children's custody.\\nBecause of the finding of the appellant-mother's changed circumstances and -the. fact that she was a proper person to have custody of the children, the appellant argues that the decree awarding custody to, the father \\\"is the result of a bias on the part of the court,\\\" or to put it differently, that the court abused its discretion in awarding custody to the father rather than to the mother.\\nWe, of course, recognize the controlling principle that the best interest of the children is of paramount consideration in determining the custody of minor children, Ettinger v. Ettinger, 72 N.M. 300, 383 P.2d 261; Urzua v. Urzua, 67 N.M. 304, 355 P.2d 123; Tuttle v. Tuttle, 66 N.M. 134, 343 P.2d 838; Bassett v. Bassett, 56 N.M. 739, 250 P.2d 487, and that the same considerations form the basis for modifying a custodial decree. Fox v. Doak, 78 N.M. 743, 438 P.2d 153; Bassett v. Bassett, supra. As in Ettinger v. Ettinger, supra, we likewise agree that generally courts are reluctant to deprive the mother of a very young child. But we there said that the rule of preference in favor of the mother in the case of young children is merely an aid to the court in determining the best interests of the children. The preference in favor of the mother is not inflexible, nor is the mother entitled to the custody of daughters as a matter of law.\\nThe trial court is vested with great discretion in awarding the custody of young children and we cannot reverse unless the court's conclusion about the best interests of the children is a manifest abuse of discretion under the evidence in the case. Fox v. Doak, supra; Jones v. Jones, 67 N.M. 415, 356 P.2d 231; Martinez v. Martinez, 49 N.M. 405, 165 P.2d 125.\\nThe only New Mexico cases called to our attention or that we have found holding that a custody determination by the trial court amounted to an abuse of discretion are Bell v. Odil, 60 N.M. 404, 292 P.2d 96; Focks v. Munger, 20 N.M. 335, 149 P. 300, and Tuttle v. Tuttle, supra. Bell v. Odil, supra, is distinguishable upon its facts. Custody was there granted to persons not parties to the action and about whom there was no proof of desire, fitness or ability to care for the children. See also Tuttle v. Tuttle, supra, with facts similar to those in Bell v. Odil, supra. The instant case is distinguishable upon its facts from Focks v. Munger, supra, where the child had been stolen from the natural mother, found to be a fit person, and to whom the child's custody had been awarded.\\nThe determination by the trial judge who saw the parties, observed their demeanor and heard the testimony is entitled to great weight. We ar\\u00e9 satisfied from an examination of the record that the court could reasonably have found and concluded as it did, having in mind the best interests of the children. The record discloses substantial support for the court's findings. We find nothing which convinces us of an abuse of discretion under the evidence. Fox v. Doak, supra.\\nWe, therefore, conclude that the order granting the change of custody was without error. The judgment should he affirmed.\\nIt is so ordered.\\nMOISE and CARMODY, JJ., concur.\"}"

nm/2739195.json

@@ -0,0 +1 @@
+"{\"id\": \"2739195\", \"name\": \"STATE of New Mexico, Plaintiff-Appellee, v. Edison W. CLIETT, Defendant-Appellant\", \"name_abbreviation\": \"State v. Cliett\", \"decision_date\": \"1968-12-27\", \"docket_number\": \"No. 223\", \"first_page\": \"719\", \"last_page\": 721, \"citations\": \"79 N.M. 719\", \"volume\": \"79\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T21:30:11.193490+00:00\", \"provenance\": \"CAP\", \"judges\": \"OMAN and ARMIJO, JJ., concur.\", \"parties\": \"STATE of New Mexico, Plaintiff-Appellee, v. Edison W. CLIETT, Defendant-Appellant.\", \"head_matter\": \"449 P.2d 89\\nSTATE of New Mexico, Plaintiff-Appellee, v. Edison W. CLIETT, Defendant-Appellant.\\nNo. 223.\\nCourt of Appeals of New Mexico.\\nDec. 27, 1968.\\nWilliam H. Carpenter, Albuquerque, for appellant.\\nBoston E. Witt, Atty. Gen., Spencer T. King, Asst. Atty. Gen., Santa Fe, for appellee.\", \"word_count\": \"1383\", \"char_count\": \"8600\", \"text\": \"OPINION\\nWOOD, Judge.\\nThe dispositive issue is whether defendant was entitled to a hearing on the question of his competency to plead guilty. In August 1962, defendant pleaded guilty to armed robbery committed in December 1960. In November 1967, defendant moved for post-conviction relief under \\u00a7 21-1-1 (93), N.M.S.A.1953 (Supp.1967). The trial court determined that the motion, files and records conclusively showed that defendant was not entitled to relief and denied the motion without a hearing.\\nDefendant appeals, urging that the issue of his competency could not be conclusively determined from the files and records and that he was entitled to a hearing on this issue. We agree. In addition, defendant asserts that promises and threats on the part of the Assistant District Attorney induced his plea of guilty. We do not think the trial court erred in denying this point without a hearing since its basis is very-similar to that considered, and determined adverse to defendant, in State v. Robbins, 77 N.M. 644, 427 P.2d 10 (1967). Defendant also raises issues that are waived by a valid plea. We do not consider them since there must be a factual determination of whether defendant was competent to plead guilty.\\nState v. Roybal, 76 N.M. 337, 414 P.2d 850 (1966) states:\\n\\\" It is a generally accepted rule that no person shall be called upon to stand trial or be sentenced who because of mental illness is incapable of understanding the nature and object of the proceedings, or of comprehending his own condition in reference thereto, or of making a rational defense. \\\"\\nOn December 23, 1960, counsel moved for a psychiatric examination of defendant at the expense of the state on the ground that defendant \\\" is mentally incapable of rationally cooperating in his defense. \\\"\\nThe record is incomplete at this point. We assume, however, that the motion of December 23, 1960 was granted; that there was a psychiatric examination; that the report of the examination did not indicate that defendant was incapable of cooperating in his own defense. These assumptions are made because on February 3, 1961 a hearing was held and an order entered. The order denied a motion to \\\" grant the defendant further psychiatric examinations. \\\" At the conclusion of the hearing the trial court referred to Dr. Evilsizer's report to the effect that defendant \\\" is presently so far free from mental disease, defect, or derangement so as to be able to conduct and cooperate in his own defense. \\\"\\nThus, at this point the trial court had inquired into the matter and by denying the motion for \\\"further\\\" examination in effect ruled that there was no reasonable doubt as to defendant's capacity to make a rational defense. State v. Roybal, supra; State v. Upton, 60 N.M. 205, 290 P.2d 440 (1955).\\nHowever, the order of February 1961 did not end the matter. In June 1961, defendant moved for \\\" further medical examinations as recommended by Dr. Thomas S. Evilsizer, Jr. in his report of January 16, 1961. \\\" In support of the motion, counsel referred to medical records that \\\" have now been made available. \\\" According to counsel, the records indicate that defendant suffered a head injury in March 1957 and that three surgical procedures were performed in March 1957: arteriography twice and a craniectomy once. The record does not show the disposition of the motion. Nor does the record include Dr. Evilsizer's report of January 1961; we do not know what further examinations were allegedly recommended.\\nApparently, however, defense counsel made his own arrangements for examinations and tests. Orders were entered in November and December 1961 authorizing the Sheriff to have defendant present for an \\\" electro encephalograph \\\" , neurological examination by Dr. J. M. Mosier, and a psychological examination by Dr. John Salazar. In February 1962, an order was entered authorizing the Sheriff to have defendant present for a medical examination at the Veterans Hospital in Albuquerque. We do not know whether these examinations were performed or if performed, the results.\\nIn April 1962, counsel moved for an additional examination by Dr. Evilsizer at the cost of Bernalillo County. This motion was granted. However, the record does not show the results of this examination.\\nThe record includes a certificate of discharge from the New Mexico State Hospital indicating that the District Court committed defendant to that institution on May 16, 1962; that the institution discharged him June 21, 1962 as \\\" \\u2014 without psychosis \\u2014 returned to the jurisdiction of the District Court.\\\"\\nOn August 17, 1962 defendant withdrew his plea of not guilty and entered a plea of guilty. At the time of this plea, defense counsel stated:\\n\\\" We have had him examined by two or three psychiatrists and there seems to be an apparent conflict between them. We have agreed that the conflict should be resolved in favor of a plea at this time. \\\"\\nIn consequence of the plea, defendant was committed to the penitentiary. He was transferred from the penitentiary to the State Hospital on September 21, 1962 \\\" on an emergency hospitalization status. '* \\\" The re-admission note states: \\\" According to Dr. Elsa Brumlop, the patient is psychotic. \\\" However, on November 29, 1962 the note indicates that defendant did not manifest \\\" overt abnormal behavior.\\\" and \\\" should be returned to the penitentiary on convalescent leave.\\\"\\nState v. Upton, supra, states that once the issue of \\\"present sanity\\\" is raised, the trial court has a duty to inquire into the matter. As a result of the inquiry, the trial court \\\" must rule as to whether a reasonable doubt exists as to the sanity of the accused. \\\" Compare State v. Roybal, supra.\\nThe record shows that between the ruling of February 1961, and the guilty plea of August 1962, various motions for examination had been filed, and that the trial court had committed defendant to the State Hospital. At the time of the guilty plea, counsel indicated a conflict of opinion as to defendant's mental condition. Under this record, the question of defendant's condition was before the trial court and that court had a duty to rule on the question. State v. Upton, supra. The trial court did not do so, apparently accepting counsel's statement \\\" that the conflict should be resolved in favor of a plea. \\\"\\nThe issue not having been previously determined by the trial court, the question of defendant's competency to plead could be raised in the post-conviction proceeding. State v. Guy, 79 N.M. 128, 440 P.2d 803 (Ct.App.1968); compare Hoffman v. State, 79 N.M. 186, 441 P.2d 226 (Ct.App.1968).\\nIn denying the motion for post-conviction relief, the trial court found that defendant was discharged from the State Hospital in June 1962 as being sane and without psychosis. The trial court also found that defendant was not suffering from any mental illness at the time he pleaded guilty. We assume that the finding as to absence of \\\"mental illness\\\" is a finding that defendant was legally sane at the time of the plea. We fail to see how either the record or the trial court's findings conclusively establish \\\"no reasonable doubt\\\" as to defendant's competency since the record indicates that defense counsel called the court's attention to the conflicting opinion of the psychiatrists. But, we do not base our opinion on this point.\\nDefendant must allege a specific factual basis for the relief sought. State v. Guy, supra. Defendant did so; he alleged the transfer to the State Hospital shortly after his commitment to the penitentiary and the \\\"psychotic\\\" diagnosis, at that time, of Dr. Brumlop. These allegations of post-conviction confinement in a mental institution and diagnosis as a psychotic are sufficiently close to the date of his plea to raise a factual issue concerning his competency to plead. State v. Guy, supra.\\nDefendant was entitled to a hearing on the issue of his competency to enter a guilty plea. The order denying relief is reversed. The cause is remanded to the trial court with instructions to grant defendant an evidentiary hearing on the issue of his competency to enter a plea on August 17, 1962.\\nIt is so ordered.\\nOMAN and ARMIJO, JJ., concur.\"}"

nm/2762894.json

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+"{\"id\": \"2762894\", \"name\": \"Roy HARMON, as the personal representative of the estate of Dorothy Harmon, deceased, and Roy Harmon, individually, Plaintiff, v. FARMERS MARKET FOOD STORE, a partnership consisting of Bert M. Jones and J. T. Halle, Jr., d/b/a Farmers Market Food Store, and Louis L. Martinez, its agent, servant, employee and manager, Defendants and Cross-Plaintiffs Appellants, v. KIMBELL-ALBUQUERQUE CO., (also known as Kimbell Wholesale Co. of Albuquerque, N. M.), and Douglas Shope, its agent, servant and employes, Defendants and Cross-Defendants Appellees, v. MAXON INDUSTRIES, INC., a corporation, Defendant and Cross-Defendant\", \"name_abbreviation\": \"Harmon ex rel. estate of Harmon v. Farmers Market Food Store\", \"decision_date\": \"1972-06-09\", \"docket_number\": \"No. 815\", \"first_page\": \"80\", \"last_page\": 83, \"citations\": \"84 N.M. 80\", \"volume\": \"84\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T20:53:00.915350+00:00\", \"provenance\": \"CAP\", \"judges\": \"HENDLEY and HERNANDEZ, JJ., concur.\", \"parties\": \"Roy HARMON, as the personal representative of the estate of Dorothy Harmon, deceased, and Roy Harmon, individually, Plaintiff, v. FARMERS MARKET FOOD STORE, a partnership consisting of Bert M. Jones and J. T. Halle, Jr., d/b/a Farmers Market Food Store, and Louis L. Martinez, its agent, servant, employee and manager, Defendants and Cross-Plaintiffs Appellants, v. KIMBELL-ALBUQUERQUE CO., (also known as Kimbell Wholesale Co. of Albuquerque, N. M.), and Douglas Shope, its agent, servant and employes, Defendants and Cross-Defendants Appellees, v. MAXON INDUSTRIES, INC., a corporation, Defendant and Cross-Defendant.\", \"head_matter\": \"499 P.2d 1002\\nRoy HARMON, as the personal representative of the estate of Dorothy Harmon, deceased, and Roy Harmon, individually, Plaintiff, v. FARMERS MARKET FOOD STORE, a partnership consisting of Bert M. Jones and J. T. Halle, Jr., d/b/a Farmers Market Food Store, and Louis L. Martinez, its agent, servant, employee and manager, Defendants and Cross-Plaintiffs Appellants, v. KIMBELL-ALBUQUERQUE CO., (also known as Kimbell Wholesale Co. of Albuquerque, N. M.), and Douglas Shope, its agent, servant and employes, Defendants and Cross-Defendants Appellees, v. MAXON INDUSTRIES, INC., a corporation, Defendant and Cross-Defendant.\\nNo. 815.\\nCourt of Appeals of New Mexico.\\nJune 9, 1972.\\nCertiorari Denied July 18, 1972.\\nWilliam W. Bivins, Neil E. Weinbrenner, Bivins & Weinbrenner, Las Cruces, for appellants.\\nC. Fincher Neal, J. W. Neal, Neal & Neal, Hobbs, for appellees.\", \"word_count\": \"1430\", \"char_count\": \"9060\", \"text\": \"OPINION\\nWOOD, Chief Judge.\\nThe appeal involves indemnification between joint tort-feasors. The issue is whether the trial court properly directed a verdict against the indemnification claim.\\nKimbell (Kimbell-Albuquerque Co. and Shope, its employee), had groceries to deliver to its customer, Farmers (Farmers Market Food Store, a partnership, and Martinez, its employee). Unloading the groceries was accomplished by means of carts which were rolled onto a hydraulic lift system attached to the rear of Kim-bell's trailer, and then lowered to the ground. The lift system served as a tailgate. The lift system was manufactured by Maxon (Maxon Industries, Inc.).\\nThe Kimbell truck and trailer had been parked directly in front of a \\\"front door\\\" of Farmers, as directed by Farmers. As parked the lift system extended over the sidewalk. The front door of Farmers extended outward. The space between the end of the lift and edge of the door was such that \\\" it really didn't require any customer to squeeze in between this tailgate and the door. \\\" Through this space other deliveries were being made to the Farmers store. Decedent, Mrs. Harmon, also passed through this space and had just entered the store when she was struck by a cart loaded with groceries. The total weight was between 1S00 and 1800 pounds. She died from the resultant injuries.\\nKimbell's cart, loaded with groceries, was being pushed from the trailer onto the lift when a retaining ramp plate fell, the cart \\\"got away\\\" from the Kimbell employee and the cart and groceries fell forward striking Mrs. Harmon. The cart was approximately six feet in height. The distance involved is demonstrated by the fact that the \\\" back part of the cart was on the tailgate, and the other part was nosed down on top of the lady.\\\"\\nThe jury returned a verdict for plaintiffs against Kimbell, Farmers and Maxon. This verdict is not appealed. Farmers cross-claimed against Kimbell seeking to be indemnified for such amount as Farmers was liable to plaintiffs. The trial court directed a verdict in favor of Kimbell on this indemnification claim. Farmers appeals.\\nPertinent New Mexico decisions are: Rio Grande Gas Company v. Stahmann Farms, Inc., 80 N.M. 432, 457 P.2d 364 (1969); Lommori v. Milner Hotels, Inc., 63 N.M. 342, 319 P.2d 949 (1957); Krametbauer v. McDonald, 44 N.M. 473, 104 P.2d 900 (1940). There can be no indemnification between joint tort-feasors where the tort-feasors are \\\"in pari delicto.\\\" Thus, there is no indemnification \\\" '\\nwhere their joint concurring acts were the proximate cause of the damage.' \\\" Lommori, supra; Krametbauer, supra.\\nKrametbauer, supra, indicates there may be indemnification if the negligence of the one seeking indemnification is \\\"passive\\\" and the negligence of the one against whom indemnification is sought is \\\"active.\\\" Rio Grande Gas, supra, indicates indemnification may be obtained \\\" from the one who, as between themselves [the joint tort-feasors], is primarily liable. \\\" Rio Grande Gas, supra, indicates the basis for indemnification lies in a distinction between one who was negligent \\\" in failing to discover and remedy a dangerous condition \\\" and one who \\\"created\\\" the dangerous condition.\\nFarmers asserts: \\\" it is clear that the negligence of Kimbell was active and primary in employing defective equipment and in negligently pushing the cart off of the end of the trailer while the negligence, if any, on the part of appellants was at best passive or secondary in failing to discover that Kimbell [was] using defective equipment and to either correct or warn against that condition.\\\" Farmers contends the jury verdict necessarily establishes that its negligence was passive or secondary.\\nWhile we agree that the record establishes \\\"active\\\" negligence on the part of Kimbell, the contention that Farmers' negligence consists of no more than a \\\"failure to discover\\\" misappraises the record. No such theory of negligence was submitted to the jury and, thus, the jury could not have determined Farmers was negligent on that basis.\\nIt is undisputed that Mrs. Harmon was a business invitee of Farmers. See N.M. U.J.I. 10.6; Mozert v. Noeding, 76 N.M. 396, 415 P.2d 364 (1966). The jury was instructed, without objection, that Farmers had a duty to use ordinary care for the safety of Mrs. Harmon and had a duty to exercise ordinary care to keep the premises reasonably safe for the use of Mrs. Harmon.\\nThree factual theories of negligence on the part of Farmers were submitted to the jury. They are: the location of the unloading procedure, the unsafe unloading procedure at that location and the failure to provide any warning of danger. These factual theories are all addressed to the duty upon Farmers to keep its premises reasonably safe for the use of its customers. The jury determined that Farmers was negligent. If the verdict was based upon a failure to keep its premises reasonably safe for Mrs. Harmon's use, then Farmers' negligence was \\\"active\\\" in that it breached its affirmative duty to the decedent. Such \\\"active\\\" negligence bars indemnification. Krametbauer v. McDonald, supra.\\nAnother theory of negligence is that Farmers and Kimbell jointly failed to coordinate the unloading process so as to effect the unloading safely both from the manner and time of unloading. If the jury found Farmers to be negligent under this theory, there can be no indemnification because this theory is a claim of concurrent negligence and indemnification is not allowed for concurrent negligence. Krametbauer v. McDonald, supra.\\nThe verdict necessarily determined that Farmers was negligent under at least one of the foregoing theories of negligence since these were the theories submitted to the jury.\\nNext, Farmers asserts: \\\" The question here is who created the dangerous condition. The only answer is that the appellees [Kimbell] created that condition by the use of defective equipment and by negligently pushing the cart off of the ramp.\\\" Farmers contends \\\" the mere presence of the trailer and the unloading process at its door was not the cause of the unfortunate accident. \\\" It claims the cause was Kimbell's defective equipment and the negligent manner in which the cart was pushed.\\nThe answer to both \\\"creation\\\" and \\\"cause\\\" is that Kimbell parked the trailer where it was told to park it and Farmers selected the location. The photographs and the testimony show the groceries could have been unloaded onto Farmers' sidewalk without the unloading occurring at the door through which customers entered the store. The testimony is that the location of the unloading was for the convenience of Farmers. In proceeding for its own convenience, Farmers actively participated in causing Mrs. Harmon's injury by creating the physical arrangement that placed Mrs. Harmon in the close proximity of Kimbell's defective equipment and negligent unloading procedure.\\nWe are aware of the rule that in reviewing a directed verdict we consider the evidence and inferences therefrom most favorable to the party resisting the motion. Carter Farms Company v. Hoffman-Laroche, Inc., 83 N.M. 383, 492 P.2d 1000 (Ct.App.1971); see Lommori v. Milner Hotels, supra. The previous discussion has referred only to undisputed facts. There is an additional asserted fact which is to be considered in the light most favorable to Farmers. It is that Kimbell had \\\"complete control\\\" over the unloading operation. Does this asserted fact raise a factual issue as to \\\"passive\\\" negligence on the part of Farmers and thus prevent a directed verdict?\\nWe hold that it does not. The unloading process itself cannot be divorced from the place of unloading. Farmers breached its duty to Mrs. Harmon in choosing the location. As between Farmers and Kimbell, this negligence was as \\\"active\\\" as Kimbell's negligence. There is no factual issue as to whether, as between Kimbell and Farmers, Kimbell was \\\"primarily\\\" liable because it was the combination of the location (Farmers) and the unloading (Kimbell) which resulted in the death of Mrs. Harmon.\\nThe directed verdict is affirmed.\\nIt is so ordered.\\nHENDLEY and HERNANDEZ, JJ., concur.\"}"

nm/2764068.json

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+"{\"id\": \"2764068\", \"name\": \"Leroy WOODS, Petitioner-Appellant, v. STATE of New Mexico, Respondent-Appellee\", \"name_abbreviation\": \"Woods v. State\", \"decision_date\": \"1972-09-15\", \"docket_number\": \"No. 943\", \"first_page\": \"248\", \"last_page\": 251, \"citations\": \"84 N.M. 248\", \"volume\": \"84\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T20:53:00.915350+00:00\", \"provenance\": \"CAP\", \"judges\": \"HERNANDEZ, J., concurs.\", \"parties\": \"Leroy WOODS, Petitioner-Appellant, v. STATE of New Mexico, Respondent-Appellee.\", \"head_matter\": \"501 P.2d 692\\nLeroy WOODS, Petitioner-Appellant, v. STATE of New Mexico, Respondent-Appellee.\\nNo. 943.\\nCourt of Appeals of New Mexico.\\nSept. 15, 1972.\\nDavid W. Bonem, Quinn & Bonem, Clovis, for petitioner-appellant.\\nDavid L. Norvell, Atty. Gen., Ronald Van Amberg, Asst. Atty. Gen., Santa Fe, for respondent-appellee.\", \"word_count\": \"1340\", \"char_count\": \"7902\", \"text\": \"OPINION\\nWOOD, Chief Judge.\\nPetitioner's conviction for aggravated assault under \\u00a7 40A-3-2(A), N.M.S.A.1953 (Repl.Vol. 6) was affirmed in State v. Woods, 82 N.M. 449, 483 P.2d 504 (Ct. App.1971). Subsequently, he moved for post-conviction relief under \\u00a7 21-1-1(93), N.M.S.A.1953 (Repl.Vol. 4). Relief was denied without an evidentiary hearing and on the basis that the claims made in the motion were not claims for which relief could be granted under \\u00a7 21-1-1(93), supra. Petitioner now appeals from the denial of post-conviction relief. The four claims asserted on appeal, and our answers, follow.\\n1. He claims there was a lack of substantial evidence to support his conviction for aggravated assault. An asserted insufficiency of the evidence is not a ground upon which postconviction relief may be obtained. Andrada v. State, 83 N. M. 393, 492 P.2d 1010 (Ct.App.1971); State v. Bonney, 82 N.M. 508, 484 P.2d 350 (Ct.App.1971). Further, this issue was raised, and decided adverse to petitioner, in State v. Woods, supra. Even if the sufficiency of the evidence was a cognizable issue in postconviction proceedings, it could not be relitigated after having been previously decided on appeal. Miller v. State, 82 N.M. 68, 475 P.2d 462 (Ct.App.1970).\\n2. He claims he was never given a preliminary hearing. The record in State v. Woods, supra, shows that petitioner was indicted by a grand jury. Thus, he did not have a right to a preliminary hearing. State v. Burk, 82 N.M. 466, 483 P.2d 940 (Ct.App.1971), cert. denied, 404 U.S. 955, 92 S.Ct. 309, 30 L.Ed.2d 271 (1971).\\n3. He claims he was never taken before a magistrate and advised of his rights. See \\u00a7 41-3-1, N.M.S.A.1953 (Repl.Vol. 6). He does not claim this prejudiced him in any way. The bare claim, without more, provides no basis for post-conviction relief. State v. Helm, 79 N.M. 305, 442 P.2d 795 (1968); Barela v. State, 81 N.M. 433, 467 P.2d 1005 (Ct.App.1970). Further, when arraigned in district court, and while represented by counsel, he pled not guilty and proceeded to trial without asserting this claim. By so doing, he waived this asserted defect. State v. Robinson, 78 N.M. 420, 432 P.2d 264 (1967).\\n4. lie claims he has been subjected to double jeopardy as follows: \\\". He was arrested on this same charge and remained in jail for four 4 days, and was find [sic] fifty, 50.00 and put back to work on his job, and was ree [sic] arrested after paying his fine. And charged all over again for the same offense of assault this is Double Jeopardy.\\nIn arguing this fourth claim, both petitioner and the State refer to a \\\"first\\\" conviction for assault in the municipal court of Clovis, New Mexico, and the \\\"second\\\" conviction for aggravated assault affirmed in State v. Woods, supra. We do not know how Clovis may define \\\"assault\\\" in its ordinance; thus, we cannot say that the \\\"assault\\\" for which petitioner alleges he was first convicted was not a lessor offense included within the aggravated assault of \\u00a7 40A-3-2, supra. Compare State v. Duran, 80 N.M. 406, 456 P.2d 880 (Ct. App.1969).\\nState v. Goodson, 54 N.M. 184, 217 P.2d 262 (1950) approved the rule that an acquittal or conviction for a minor offense included in a greater will not bar a prosecution for the greater if the court in which the acquittal or conviction was had was without jurisdiction to try the accused for the greater offense. This rule was applied in State v. Mares, 79 N.M. 327, 442 P.2d 817 (Ct.App.1968). Under this rule, petitioner would not have been in double jeopardy by the second conviction of aggravated assault because the Clovis municipal court had no jurisdiction to try that offense.\\nI-Iowever, the Supreme Court of the United States, by Chief Justice Burger, held this rule to be erroneous in Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), reh. denied, 398 U.S. 914, 90 S.Ct. 1684, 26 L.Ed.2d 79 (1970). Thus, under Waller, supra, the prior conviction in municipal court may be a bar to subsequent prosecution in district court under the constitutional prohibition against double jeopardy.\\nWhether such a bar exists depends on the facts. If the factual basis for the alleged conviction for assault in municipal court (if in fact there be one), and the factual basis for the aggravated assault conviction differ, then there would be no double jeopardy. State v. Goodson, supra; State v. Anaya, 83 N.M. 672, 495 P.2d 1388 (Ct.App.1972); State v. Gleason, 80 N.M. 382, 456 P.2d 215 (Ct.App.1969); State v. Mares, supra.\\nThe claim of double jeopardy goes outside the record in State v. Woods, supra, and thus the \\\"files and records of the case\\\" do not conclusively show Woods is not entitled to relief under that claim. He is entitled to an evidentiary hearing on that claim, \\u00a7 21-1-1(93), supra, where the burden will be on him to prove a factual basis showing double jeopardy. State v. Gorton, 79 N.M. 775, 449 P.2d 791 (Ct.App.1969).\\nThe order denying relief without an evidentiary hearing is affirmed as to all claims except the double jeopardy claim. The order denying relief on the double jeopardy claim is reversed, and as to that claim alone, the cause is remanded for an evidentiary hearing.\\nIt is so ordered.\\nHERNANDEZ, J., concurs.\\nSUTIN, J., specially concurring.\"}"

nm/2770128.json

@@ -0,0 +1 @@
+"{\"id\": \"2770128\", \"name\": \"STATE of New Mexico, Plaintiff-Appellee, v. Ronald EVANS, a/k/a \\\"Smokey\\\", Defendant-Appellant\", \"name_abbreviation\": \"State v. Evans\", \"decision_date\": \"1973-03-30\", \"docket_number\": \"No. 1007\", \"first_page\": \"47\", \"last_page\": 51, \"citations\": \"85 N.M. 47\", \"volume\": \"85\", \"reporter\": \"New Mexico Reports\", \"court\": \"Court of Appeals of New Mexico\", \"jurisdiction\": \"New Mexico\", \"last_updated\": \"2021-08-10T18:11:21.209207+00:00\", \"provenance\": \"CAP\", \"judges\": \"SUTIN and LOPEZ, JJ., concur.\", \"parties\": \"STATE of New Mexico, Plaintiff-Appellee, v. Ronald EVANS, a/k/a \\u201cSmokey\\u201d, Defendant-Appellant.\", \"head_matter\": \"508 P.2d 1344\\nSTATE of New Mexico, Plaintiff-Appellee, v. Ronald EVANS, a/k/a \\u201cSmokey\\u201d, Defendant-Appellant.\\nNo. 1007.\\nCourt of Appeals of New Mexico.\\nMarch 30, 1973.\\nJohn H. Lawless, Jr., Alamogordo, for defendant-appellant.\\nDavid L. Norvell, Atty. Gen., Harvey Fruman, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.\", \"word_count\": \"1421\", \"char_count\": \"8545\", \"text\": \"OPINION\\nHERNANDEZ, Judge.\\nDefendant was convicted on two counts of unlawful sale of marijuana (\\u00a7 54-9-3, N.M.S.A.1953 (Repl.Vol. 8, pt. 2) (Repealed)) and sentenced to two concurrent terms of not less than two and not more than ten years. On appeal defendant contends: (1) that the trial court erred in denying his motion for a change of venue due to extensive pre-trial publicity and, (2) that the trial court erred in refusing to give two instructions tendered by defendant, defendant's instructions Number 1 and Number 4.\\nWe affirm.\\nPrior to defendant's apprehension and subsequent conviction there had been much publicity given to the problem of drugs, the difficulties of apprehending drug \\\"pushers\\\" and the various possibilities for eliminating drug use in the community. Sometime before defendant's arrest a reward procedure known locally as the \\\"TIP Program\\\" was initiated in Otero County by which persons could call a telephone number, give information about possible drug abuse and perhaps be eligible for a reward. Defendant introduced many exhibits consisting of newspaper clippings and transcriptions of radio broadcasts showing the extent and duration of both the \\\"TIP Program\\\" publicity and the publicity given to the drug problem generally. In addition, defendant introduced similar evidence dealing with a drug raid held on January 22, 1972 which resulted in defendant's arrest and news articles which named defendant specifically as one of the persons arrested in the raid. Of the many exhibits on the issue of pretrial publicity introduced by the defendant, he was specifically named in only two as having been arrested in the January 22 drug raid. He contends that this publicity jeopardized his right to an impartial and unbiased jury in Otero County and that he should have been granted a change of venue to some location less tainted by the pre-trial publicity on the drug problem.\\nThe trial court conducted a lengthy hearing on the issue of pre-trial publicity and the motion for a change of venue. At the conclusion of this hearing the court denied the motion and made the following findings:\\n\\\"1. None of the publicity in the news media of Alamogordo and Otero County was shown to be prejudicial to the Defendant.\\n\\\"2. It was not shown that the Defendant is well known in Alamogordo and Otero County.\\n\\\"3. The TIP Program in Otero County was the establishing of a telephone number where persons could call and give information concerning sale or use of drugs, without having to give their name and if such information lead to the conviction of a drug pusher, such person could be eligible for a reward.\\n\\\"4. A large number of people in the State of New Mexico as well as the United States are very much aware of the drug abuse programs and publicity concerning same. The Defendant has not shown that the people of Otero County are more aware of these programs than people in any other part of the State of New Mexico and if they were, that this would prevent Defendant from obtaining a fair and impartial Jury in Otero County.\\n\\\"5. The Court finds that the Defendant can receive a fair and impartial Jury before which to stand trial.\\\"\\nA motion for change of venue which is disposed of after a hearing and upon stated findings will not be disturbed on appeal unless a clear abuse of the trial court's discretion can be shown. State v. Foster, 82 N.M. 573, 484 P.2d 1283 (Ct. App.1971); Deats v. State, 80 N.M. 77, 451 P.2d 981 (1969). In order to show abuse of discretion in denying a motion for change of venue based upon improper pretrial publicity the burden of persuasion is on the defendant and he must sustain this burden even if the State offers no contradictory evidence whatsoever. State v. Foster, supra. Defendant has made no showing in our opinion that there was even the likelihood of prejudice at his trial. He has shown merely that the problem of drug abuse and the \\\"TIP Program\\\" had been given wide coverage by the news media in Otero County. The publicity given his own arrest appears to be nothing more than the conventional coverage given arrests by news media everywhere. He was not named in the earlier news items or in anyway referred to specifically. Generalized publicity given to social problems such as drug abuse and publicity given to such things as the \\\"TIP Program\\\" does not give rise to the sort of inflammatory or prejudicial news coverage necessary to warrant a change of venue. Defendant's reliance on Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) is misplaced; the abuses in Estes were in no way akin to the publicity given defendant's arrest. Cf. Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L.Ed.2d 600 (1966).\\nDefendant's requested instruction Number one, refused by the trial court, stated in pertinent part:\\n\\\"The Statutes under which this Indictment is brought read as follows:\\n\\\"54-9-3. Possession, planting, manufacture, sale, delivery prohibited \\u2014 Exceptions. \\u2014 No person shall plant, manufacture, sell, deliver or have in his possession any marijuana. \\\"54-9-4. Penalties:\\nC. Any person who has in his possession marijuana with intent unlawfully to sell, deliver or otherwise dispose of, or who sells, furnishes, gives away or delivers the marijuana to another person is:\\n(1) for the first offense, guilty of a third degree felony;\\\"\\nThe trial court's instruction Number 7 duly instructed the jury on \\u00a7 54-9-3, supra, in the express statutory language. At trial defendant, argued that the portion of the instruction based on \\u00a7 54-9-4, N.M.S.A. 1953 (Repl.Vol. 8, pt. 2, Supp.1971), was necessary because \\\"it sets forth the unlawful intent, without which a crime does not exist.\\\" But this objection disregards the court's instruction Number 6 which required that the jury be satisfied beyond a reasonable doubt \\\"[tjhat the defendant did knowingly and intentionally sell marijuana.\\\" In his brief-in-chief defendant contends that the \\u00a7 54 \\u2014 9-4 instruction, supra, was necessary so that \\\"the jury be appraised of the offense for which he was on trial.\\\" Section 54 \\u2014 9-4, supra, goes only to the possible penalties to be imposed upon one convicted under \\u00a7 54-9-3, supra. Sentencing is not normally within the jury's province in non-capital crimes. It has long been settled in New Mexico that the jury's function is to determine guilt or innocence, not to participate in the imposition of punishment. \\\"It was no concern of the jury what punishment the law prescribed.\\\" State v. Ellison, 19 N.M. 428, 144 P. 10 (1914). The instructions tendered by the trial court contained all the necessary elements of the offense including the requisite intent. There was no error in refusing to give defendant's requested instruction Number one.\\nAs his requested instruction Number 4, defendant proffered a verdict form which stated:\\n\\\"VERDICT\\nWE, the Jury, find the Defendant guilty in the manner and form as charged in the indictment and recommend clemency.\\\"\\nThe verdict forms actually used by the trial court contained.no mention of clemency. Defendant claims that \\\"We can only speculate as to what the jury might have done if they had been given the form of verdict requested by the Defendant.\\\"\\nThis argument disregards the fact that the trial court did instruct as to clemency in its instruction Number 20 :\\n\\\"Under the laws of this State, the penalty is assessed by the Trial Judge so that, by your verdict, you will only say whether the Defendant is guilty or not guilty. In the event of a verdict of guilty you or part of you may, however, recommend the Defendant to the clemency of the Court, and any such recommendation will receive due consideration.\\\"\\nThe jury was instructed on the matter of clemency. The additional submission of a verdict form including clemency language would have been merely cumulative. Moreover, a recommendation of clemency by the jury is advisory in nature and not binding on the trial court's final determination of sentence. State v. Carabajal, 26 N.M. 384, 193 P. 406 (1920). Since the trial court had properly instructed the jury on the matter of clemency in its instruction Number 20, it was not error to refuse the verdict form tendered by defendant.\\nAffirmed.\\nIt is so ordered.\\nSUTIN and LOPEZ, JJ., concur.\"}"