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If the treasurer shall discover any errors of oth-, exists. Those cases all concern special or er kinds, in said assessment book by which any summary proceedings, such as annexation, injustice would be done to any taxpayer, it shall be his duty to report the same to the district abatement of taxes, divorce and election proattorney, and every taxpayer complaining of ceedings, as distinguished from ordinary civil any such injustice may submit his complaint to actions. The question, however, is more the district attorney; and if the district attorney is satisfied that correction or change squarely presented in cases hereafter to be should be made so as to avoid injustice to the noted. Thus in Phillips v. Corbin, 25 Colo. taxpayer, it shall be his duty to submit the 62, 65, 49 Pac. 279, 280, it was held that a matter to the district court and ask for an statute allowing appeals from "all final judgorder of that court that such change or correction should be made, without cost to the tax. wents and decrees of the county court" did payer injuriously affected."

not authorize an appeal from a judgment of That section was considered in the case of the county court in a proceeding looking to South Spring Ranch & Cattle Co. v. State the annexation of contiguous towns, such a Board of Equalization, 18 N. M. 531, 569, proceeding being held to be special. Speak139 Pac. 159, and we held that the section ing to the effect of the general provision of

the statute allowing appeals from the county applied to ordinary erroneous assessments as

court, the court said: well as to overvaluation of the taxpayer's

"It is evident, therefore, that, by the enactproperty. In State v. Chacon, 19 N. M. 456, ment of this section, the Legislature had not 459, 145 Pac. 125, we held that section 2, intended to provide

for appeals in art. 6, of the state Constitution defined the such proceedings, but that it had reference only

to appeals from judgments which were renderjurisdiction of this court, but did not con

ed by the county court in the exercise of the fer upon litigants thereby the right to appeal. jurisdiction conferred by section 1; that is, a In that connection we also held that appeals civil action.' are the creatures of statutes, and that when In Pilgrim Consol. M. Co. v. Board of the right is not specifically granted by stat. Com’rs, 32 Colo. 334, 76 Pac, 364, the court ute, the litigant is not afforded the right to expressed doubts of its jurisdiction over the have his case reviewed by a superior tribu- case, but entertained the appeal because the nal. The contention of appellant—that the question of its jurisdiction was not raised by second portion of the section is self-executing the parties. The proceeding was to correct and confers the right to appeal upon the errors in the assessment of certain property state—is manifestly foreclosed by the doc- for taxation. In Board of Com’rs v. Denver trine announced in that case.

Union Water Co., 32 Colo. 382, 76 Pac. The solution of the question of the right 1060, the proceeding below was founded upof the state to appeal in this proceeding de- on a particular statute giving the right to a pends upon a construction of section 1, c. 77, taxpayer to petition for relief from the payLaws 1915. That section provides that any ment of taxes in certain events. The court party aggrieved in "any civil action" may said : appeal to the Supreme Court. The section "This act gives to an aggrieved" party "a cited amended a portion of the act of 1907 remedy which in its absence he would not have. concerning civil procedure. Chapter 57, Laws It prescribes a special procedure. 1907. A reasonably thorough investigation

While it did not decide the proposition made by us discloses that a distinction is involved in the case at bar, it said: maintained by the courts between ordinary

"It is also doubtful if the Code provisions civil actions and special proceedings founded relating to appeals and writs of error apply to

special proceedings. upon statute. It has been held that no ap

It is inferred in another part of its opinion peal exists in the latter class of cases, un that unless the act creating the special proless the statute specifically grants the same, ceeding, or subsequent specific act, granted the courts or tribunals in such cases exercise the right of appeal, none existed. ing special and limited jurisdiction. Kim

In Pilgrim Consol. M. Co. v. Board of ber v. Schuylkill County, 20 Pa. (8 Harris) Com’rs, 20 Colo. App. 311, 78 Pac. 617, the 366, 368; Margraff v. Cunningham's Heirs, question about which the Colorado court had 57 Md. 585, 589; Baker v. Chisholm, 3 Tex. formerly expressed its doubts came squarely 157; Tadlock v. Texas Monumental Com- before the court for its consideration. There mittee, 21 Tex. 166; Gadd v. Com’rs, 82 Md. the plaintiff in error filed its petition with 646, 33 Ati, 433; Gabler v. Black, 210 Pa. the county cominissioners and prayed for 541, 60 Atl. 257; Wells v. Thomas, 72 Md. relief from an unjust assessment. The peti26, 19 Atl. 118; Naylor v. Naylor, 60 Tex. tion was denied, and an appeal to the disCiv. App. 606, 128 S. W. 475. In none of trict court perfected. There the relief these cases is it made clear that the doctrine sought by the petition was also denied, announced is any different from the doctrine whereupon appeal to the Supreme Court was we announced in the Chacon Case, supra, perfected. The proceeding was under a that the right to appeal must be based upon statute of Colorado which provided only for statute. But the inference seems permissi- appeal to the district court. On the authorble, from an examination of those cases, that ity of the case of Board of Commissioners v. unless the right is specifically granted in Denver Union Water Co., 32 Colo. 382, 76 the act under which the proceedings are Pac. 1062, the court held that it had no jucreated, or by a specific subsequent act, none risdiction to entertain the proceedings. The

same doctrine was affirmed in Board of the proceeding. No issues are made upon Com’rs v. Pinnacle Gold Mining Co., 36 Colo. the petition, and in all respects the proceed492, 85 Pac. 1005. In the case at bar the ing is special in nature, the authority to proappellant states that this court entertained ceed being derived wholly from statute. Aljurisdiction of a similar case in Re Atchison, though the proceeding is civil in its nature, Topeka & Santa Fé Railway Co., 22 N. M. as distinguished from criminal, it is not a 498, 165 Pac. 215, and that if the court did civil action. No right of appeal was connot possess jurisdiction in that class of ferred by the statute upon either the peticases, it would have dismissed the appeal in tioner or any person aggrieved by the said case, sua sponte. This argument is action of the court. We have no doubt that answered by the statement of the Colorado the Legislature did not intend chat an apcourt in the last-cited case:

peal should be allowed therefrom.

The ac"There have been a number of similar cases tion of the trial court in such a proceeding brought to this court

in which the is final, unless the right to appeal was conaction of the district court has been reviewed. These cases afford no precedent by which we are ferred upon the state by virtue of the fact to be controlled; the question of jurisdiction that section 5475, supra, provides that the not having been raised or brought to the atten- amounts to be paid as taxes, as shown by tion of the court."

the assessment books, shall not be changed, The only case which has come to our no- altered, or abated "except by direction of the tice seemingly holding to the contrary of district or Supreme Court.” That provision the foregoing cases is that of Webb v. Stasel, is in the nature of a prohibition against the 80 Ohio St. 122, 88 N. E. 143, where the altering of assessments at certain stages of court held that a suit by one receiver against the tax proceedings, except by judicial acanother to recover a stated sum of money tion. Clearly it constitutes no express grant constituted a civil action, a conclusion which of the right of appeal to a litigant. we do not doubt. But in determining the We are advised by appellant that in the ab question of the right of one of the parties to sence of a right of appeal in such cases a appeal the court said :

corrupt district attorney might improperly "It has long been familiar to counsel that the exercise the power conferred upon him by civil action of the Code includes all such pro- the statute to the detriment, not only of a ceedings as prior to its enactment were regarded either as actions at law or suits in equity, taxpayer in some cases, but to the state in and rights of action since authorized by stat- others. The argument assumes that the ute, unless the authorizing statute itself defines district court is obliged to grant the relief a mode of enforcing the right at variance from the procedure prescribed by the Code."

prayed for in the petition because of the rec

ommendation of the district attorney, but, We are convinced that section 1, C 77,

Whether Laws 1915, refers only to the ordinary civil of course, such is not the case. actions and that it cannot be held applicable superior to the district court is a legisla

such cases should be reviewed by a court to special statutory proceedings. In Schus

tive question, and, the Legislature not hap. ter v. Schuster, 84 Minn, 403, 87 N. W. 1014,

ing made provision for such review, the court said:

none can be entertained here. The motion “The phrase "special proceedings,' within its proper definition, is a generic term for all civil to dismiss the appeal is therefore granted; remedies in courts of justice which are not and it is so ordered. · ordinary actions.

Where the law confers a right, and authorizes a special application to a court to enforce it, the proceeding is

HANNA, C. J., and ROBERTS, J., concur. special within the ordinary meaning of the term ‘special proceeding.' See, also, Anderson v. Englehart, 18 Wyo.

(23 N. M. 585) 196, 105 Pac. 571, Ann. Cas. 1912B, 1375, ATCHISON, T. & S. F. RY. CO. v. STATE. and 7 Words and Phrases (Second Series)

(No. 2115.) 6587. No right is given to a taxpayer in this state to have a correction made in his (Supreme Court of New Mexico. Jan. 8, 1918.) assessment by application to the district court through the district attorney, except by

(Syllabus by the Court.) statute. Unlike the ordinary civil action the APPEAL AND ERROR 41(1)-PROCEEDING TO

REDUCE ASSESSMENT_STATUTE. matter is submitted to the court through the

An appeal does not lie to this court from a intervention of the district attorney, who judgment rendered by a district court in promust first be satisfied that the relief prayed ceedings instituted under section 5475, Code for in the petition should be granted to

1915. avoid injustice to the petitioner. The pro Appeal from District Court, Socorro Counceeding is begun by petition, rather than by ty; Mechem, Judge. complaint. No process is served upon the Proceeding by the Atchison, Topeka & Sanstate or any tax official. The court deter-ta Fé Railway Company against the State mines the right of the matter in an ex parte of New Mexico. Judgment for plaintiff, and hearing. The order or judgment of the court defendant appeals. Dismissed operates upon an official not made a party to See, also, 165 Pac. 215.

Milton J. Helmick, Asst. Atty. Gen., for, Judgment for the latter, and the former the State. W. C. Reid, C. M. Botts, and brings error. Affirmed. George S. Downer, all of Albuquerque, for

0. P. Easterwood, of Clayton, and W. J. appellee.

Eaton, of Socorro, for plaintiff in error:

Joseph Gill, of Clayton, for defendant in erPARKER, J. This is an appeal by the

ror. state of New Mexico from a judgment rendered by the district court in proceedings in

HANNA, C. J. The plaintiff in error as· stituted under section 5475, Code 1915. In signs nine reasons why the judgment of the

the case of in re Rosenwald Bros., a cor- trial court should be reversed. Each error poration, 170 Pac. 42, we held that an appeal assigned depends upon the record of the did not lie in such cases from the judgment transcript of testimony and proceedings at of the trial court. The appeal herein will the trial. That record is certified to by the therefore be dismissed; and it is so ordered. stenographer, but was not made a part of

the record by bill of exceptions, nor certified HANNA, C. J., and ROBERTS, J., concur.

to by the trial judge. The certificate of the

stenographer is not sufficient in itself to (23 N. M. 584)

make such proceedings a part of the record STATE 7. ROSENWALD et al. (No. 2101.) for review here. Cox v. Duglas Candy Co., (Supreme Court of New Mexico. Jan. 8, 1918.) 22 N. M. 410, 163 Pac. 251; Rogers v. Craw

ford, 22 N. M. 365, 161 Pac. 1184. (Syllabus by the Court.)

Consequently the judgment of the trial APPEAL AND ERROR Om 41(1)-REDUCTION OF court will be affirmed, and it is so ordered. ASSESSMENT-STATUTES. An appeal does not lie to this court from a

PARKER and ROBERTS, JJ., concur. judgment rendered by a district court in proceedings instituted under section 5475, Code 1915.

(23 N. M. 563) Appeal from District Court, Bernalillo MORRILL V. MASTIN et al. (No. 2031.) County; Raynolds, Judge.

Proceeding by D. S. Rosenwald and S. u. (Supreme Court of New Mexico. Jan. 7, 1918.) Rosenwald, doing business under the name

(Syllabus by the Court.) of the New Mexico Cigar Company, for a 1. APPEAL AND ERROR 169_NONJURISDICreduction of an assessment. From an order TIONAL QUESTIONS REVIEWED. granting relief, the State of New Mexico first time on appeal will not be considered.

Nonjurisdictional questions raised for the appeals. Dismissed.

2. CORPORATIONS 82-SUBSCRIPTION-CANH. L. Patton, Atty. Gen., for the State. CELLATION POWERS OF OFFICERS AND

AGENTS. James R. Moore, of · Los Angeles, Cal., for

Officers and agents of a corporation have no appellees.

power to agree with a subscriber of the capi

tal stock of such corporation that he may cancel PARKER, J. This case is controlled by his subscription at his option, any time beour decision In re Rosenwald Bros., a cor-fore the maturity of the note given in payment

thereof, and have his note returned to him, unporation, 170 Pac. 42, and In re Atchison, less such power is conferred upon such officers T. & S. F. Ry. Co. v. State, 170 Pac. 44, nei- by charter or statute or the by-laws of the corther of which has yet been officially reported. poration.

The appeal will therefore be dismissed; Appeal from District Court, Grant County ; and it is so ordered.

Neblett, Judge.

Action by Charles B. Morrill, receiver of HANNA, C. J., and ROBERTS, J., concur. the People's Savings Bank & Trust Company,

against M. D. Mastin and the Capital Sav(23 N. M. 687)

ings Investment Company. Judgment for EATON V. FIRST NAT. BANK OF DAL plaintiff upon a directed verdict, and defendHART, TEX. (No. 1943.)*

ants appeal. Affirmed. (Supreme Court of New Mexico. Jan. 7, 1918.)

H. D. Terrell, of Silver City, for appellants.

James Royall, of Silver City, for appellee. (Syllabus by the Court.) APPEAL AND ERROR 547(1), 612(1)→TRAN HANNA, C. J. This is an action brought : SCRIPT-REVIEW.

by Charles B. Morrill, receiver of the PeoQuestions dependent upon facts appearing in the transcript of evidence cannot be consid ple's Savings Bank & Trust Company of Silered where the proceedings at the trial are not

ver City, N, M., appellee, st M. D. Masmade a part of the record by bill of exceptions, tin upon a promissory note executed by apor certified to by the court or referee.

pellant in favor of the Capital SavingsError to District Court, Union County: Investment Company, a foreign corporation Leib, Judge.

authorized to do business in this state. Action between William J. Eaton and the From a judgment entered upon a directed First National Bank of Dalhart, Texas. verdict the appellant appeals.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Rehearing denied March 9, 1918.

The note was in the sum of $1,000 and , than payment, because the evidence of appelrepresented the payment of appellant's sub- j lant disclosed that the note had not been scription to a designated number of shares paid, and that the stamp was customarily of the capital stock of the said investment used to evidence the cancellation of a note company. The appellant defended upon the as well as the payment thereof. The point ground that at the time of the execution of certainly involves questions of much interest, said note a contemporaneous agreement was but we shall not consider the question, for made, whereby the appellant became entitled the reason that it is raised here for the first to cancel his subscription to the capital stock time. The appellant stood on the alleged of the investment company and thereupon cancellation of the instrument by the joint have this note returned to him, it being fur- acts of himself and the president of the inther agreed that the said note would not be vestment company, and so far as the record negotiated by the investment company until discloses the proposition now urged by appelafter the maturity thereof, and that pursu lant was not presented to the trial court. ant to such agreement and prior to the ne- The doctrine that nonjurisdictional questions gotiation of said note to the People's Sav- will not be considered here for the first time ings Bank & Trust Company, the appellant has so often been declared by this court that canceled his said stock subscription and was citation of authority thereon is unnecessary. assured by the president of the said invest- [2] 2. Objection is made to the action of ment company that his note had been de- the trial court in striking out testimony of stroyed. It was also alleged that the Peo- witnesses concerning the alleged parol conple's Savings Bank & Trust Company had temporaneous agreement made between the full knowledge of such facts at the time it appellant and the investment company, which purchased said note. At the trial the plain was to the general effect that appellant had tiff offered the said note in evidence, where the privilege of canceling his stock subscripupon for the first time appellant became ap- tion any time before the maturity of the prised of the fact that upon the face of the note and thereby became entitled to the renote appeared a stamp mark or impression, turn of his note, the president of the said partly erased and obliterated, bearing the investment company agreeing to retain the word “Paid.” A witness for the appellee tes- said note until its maturity. Appellant contified that the stamp was similar to that cus- tends that it was competent for the parties tomarily used by the People's Savings Bank to dissolve or annul the agreement contained & Trust Company to evidence the payment or in the note by a subsequent parol agreement cancellation of notes owned by it. All tes- and thus make a new contract, except where timony in behalf of appellant concerning the the right of holders for value and without alleged contemporaneous agreement and the notice are concerned. Other propositions are alleged cancellation of the subscription con- advanced in the argument by appellant which tract and the destruction of the said note have no relation to the question under dis. was stricken by the court upon the motion cussion. The appellee contends that the alof appellee, and the court, upon motion of leged agreement, if permitted to stand in appellee, directed the jury to return a ver- evidence, would tend to vary and add to the dict for appellee.

terms of the promissory note, and was there[1] 1. The appellant contends that the fore properly excluded. The record does not court was in error in directing a verdict for disclose the exact theory upon which the appellee. The argument goes to the propo- trial court determined this question. Pracsition that the evidence disclosed that upon tically the same question was presented in the face of the note appeared a paid stamp the case of Morrill, Receiver, v. Charles D. mark, and therefore it became incumbent Harris, 167 Pac. 276. There it was contendupon the appellee, under section 717, Code ed that the court was in error in striking out 1915, to explain this evidence showing a testimony tending to show that an agree prima facie case of payment or cancellation ment was made between the appellant and of the note. Not having sustained that bur- the agent of a bank, whereby the appellant den, appellant argues that the court should was permitted to demand a cancellation of not have directed a verdict in favor of ap- his stock subscription and the return of the pellee. The section of the statute cited, su- note given therefor any time prior to its pra, provides, in effect, that a cancellation maturity. It was held that such an agree. • of a negotiable instrument made uninten- ment was contrary to public policy, and that tionally, or under mistake, or without au- the officers and directors of the bank bad thority, is inoperative, but where an instru- no authority to make such an agreement, unment or signature thereon appears to have less such power is given them by statute, been canceled, the burden of proof rests up-charter, or by-laws. There is no evidence on the party alleging that the cancellation in the record here disclosing any such power was unintentional, or made under mistake in the president, agent, or any other officer or without authority. The supposition is of the investment company. The trial court that appellant contends that the paid stamp was not in error in striking out such testi.

The judgment of the trial court will there ! of these sheep, a portion of which were infore be affirmed, and it is so ordered. spected by appellee, was $2.90 per head, and

to secure the payment of this purchase price ROBERTS and PARKER, JJ., concur. appellee executed and delivered to appellant

the promissory note and mortgage in ques(23 N. M. 558)

tion. Thereafter, on the 25th day of Novem

ber, 1914, the appellant and appellee agreed WALTERS V. DITTO. (No. 2047.)

upon the sale of another herd of sheep to (Supreme Court of New Mexico. Dec. 31, 1917.) the number of about 639. It was alleged (Syllabus by the Court.)

that it was agreed between the parties that 1. SALES 261(7), 270, 273(5)

said sheep were to be of better quality than

WARRANTY OF QUALITY INSPECTION DEFECTS

the first herd pointed out and inspected by LIABILITY.

appellee, although not in quite the same flesh, Where an article sold is equally open to the agreed price of which was to be $3.50 inspection and examination of both parties, and the purchaser relies upon his own Informatiou per head; that at the time of entering into and judgment, without requiring any warranty said second contract the appellee requested of the quality, no liability exists if the purchas- appellant to show him the sheep to be deliver thereafter discovers soine defect in the article; ered, but appellant stated that it would be but this rule does not apply where the purchas- almost impossible to locate them convenienter orders goods of a certain character, and he relies on the judgment of the seller, or goods ly; that appellee could absolutely rely upon of a certain described quality are offered for appellant's representations as to their qualsale, and when delivered they do not answer ity, value, and condition; that the 200 weththe description directed or given in the contract. Where a party contracts to sell sheep, er lambs to be delivered would average beinspection not being available, and agrees that tween 60 and 70 pounds per head in weight, the sheep so offered shall be of better quality and that appellee was thereby induced to rethan certain sheep then exhibited, and that the ly upon said description of said sheep and lambs shall weigh between 60 and 70 pounds, he warrants the truth of such statements.

the representation and word of appellant; 2. SALES 425 BREACH OF CONTRACT

that at the time of making said contract apRETENTION OF GOODS-SUIT FOR DAMAGES. pellee gave to the appellant his certain prom

Where goods are delivered under a contract issory note in writing for the sum of $2,271.. which do not comply with the quality of goods 50, dated November 25, 1914, and interest, contracted for, the party to whom they were delivered may, upon notice given to the vendor and that to secure the note the defendant and an offer to return, which is not accepted by made and executed a certain mortgage upthe vendor, retain the goods and sue for damage. on described real estate in Chaves county,

Appeal from District Court, Chaves CounN. M.; that on the 15th day of December ty; McClure, Judge.

thereafter appellant delivered to appellee all Action by Ray Walters against C. G. Dit of the sheep contracted for in both deals, exto, with cross-complaint by defendant. Judg-cept such number as had been lost during dement for defendant upon the cross-complaint, livery. Appellant was not present at the and for plaintiff for the difference, and plain- time the sheep were delivered, but they were tiff appeals. Affirmed.

driven to appellee's home by employés of ajr Gibbany & Epstein, of Roswell, for appel- pellant. At the time of the delivery appežlant. R. D, Bowers, of Roswell, for appel- lee inspected the sheep, and found that, in lee.

spite of the increased price paid for the sec

ond herd, they were of much poorer quality ROBERTS, J. This action was instituted than the herd first pointed out; that cunin the court below by appellant against ap- trary to the condition of the sheep used as pellee to foreclose a chattel mortgage se- a sample or standard, and contrary to the curing a promissory note for $1,208 and in- description of them as given by appellant to terest. The mortgage was on certain sheep appellee, the sheep as delivered were of inand horses. The complaint alleged that the ferior quality; the 200 lambs or so did not sheep had been sold and the money received average more than 35 pounds per head in therefrom credited on the note, and it was weight, and a number of the sheep were of sought to foreclose the mortgage on the hors- considerable age and broken mouthed, and es for the balance alleged to be due on the most of them were in a very poor and unsitnote, amounting to $706.64 and interest. Ap- isfactory condition, and contrary to the terins pellee filed an answer and cross-complaint, of the contract. Appellee notified appella nt in which he admitted the execution of the that he would not accept the sheep, and mortgage and the balance due on the note, thereafter appellant and appellee attempted but alleged that he was entitled to a set-off to agree upon an adjustment of the matter, against the note, reciting in detail the facts, but were unable to do so, and appellee noti. which we summarize as follows:

fied appellant that he held the sheep subject: On the 12th day of November, 1914, ap- to his order, but some time in January therepellant and appellee entered into a contract after he notified appellant that he would refor the sale of certain sheep to the number tain the sheep and hold him liable for breach of 408 or thereabouts. The purchase price of the terms of the contract. The cross-com

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