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 at torney is satisfied that correction or change squarely presented in cases hereafter to be Thus in Phillips v. Corbin, 25 Colo. should be made so as to avoid injustice to the noted. 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-ments and decrees of the county court" did not authorize an appeal from a judgment of payer injuriously affected." * # "It is evident, therefore, that, by the enactment of this section, the Legislature had not intended to provide for appeals in such proceedings, but that it had reference only to appeals from judgments which were rendered by the county court in the exercise of the jurisdiction conferred by section 1; that is, a 'civil action.' 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 sectioning 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 property. In State v. Chacon, 19 N. M. 456, 459, 145 Pac. 125, we held that section 2, art. 6, of the state Constitution defined the jurisdiction of this court, but did not confer upon litigants thereby the right to appeal. In that connection we also held that appeals are the creatures of statutes, and that when the right is not specifically granted by statute, the litigant is not afforded the right to have his case reviewed by a superior tribunal. The contention of appellant-that the second portion of the section is self-executing and confers the right to appeal upon the state-is manifestly foreclosed by the doctrine announced in that case. In Pilgrim Consol. M. Co. v. Board of Com'rs, 32 Colo. 334, 76 Pac. 364, the court expressed doubts of its jurisdiction over the case, but entertained the appeal because the question of its jurisdiction was not raised by the parties. The proceeding was to correct errors in the assessment of certain property for taxation. In Board of Com'rs v. Denver Union Water Co., 32 Colo. 382, 76 Pac. 1060, the proceeding below was founded upon a particular statute giving the right to a taxpayer to petition for relief from the payment of taxes in certain events. The court said: "This act gives to an aggrieved" party "a remedy which in its absence he would not have. It prescribes a special procedure. # * While it did not decide the proposition involved in the case at bar, it said: "It is also doubtful if the Code provisions relating to appeals and writs of error apply to special proceedings. * * It is inferred in another part of its opinion that unless the act creating the special proceeding, or subsequent specific act, granted the right of appeal, none existed. The solution of the question of the right of the state to appeal in this proceeding depends upon a construction of section 1, c. 77, Laws 1915. That section provides that any party aggrieved in "any civil action" may appeal to the Supreme Court. The section cited amended a portion of the act of 1907 concerning civil procedure. Chapter 57, Laws 1907. A reasonably thorough investigation made by us discloses that a distinction is maintained by the courts between ordinary civil actions and special proceedings founded upon statute. It has been held that no appeal exists in the latter class of cases, unless the statute specifically grants the same, the courts or tribunals in such cases exercising special and limited jurisdiction. 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 Atl. 433; Gabler v. Black, 210 Pa. the county commissioners 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 Kim 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 No issues are made upon Al same doctrine was affirmed in Board of the proceeding. 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 appellant states that this court entertained jurisdiction of a similar case in Re Atchison, Topeka & Santa Fé Railway Co., 22 N. M. 498, 165 Pac. 215, and that if the court did not possess jurisdiction in that class of cases, it would have dismissed the appeal in said case, sua sponte. This argument is answered by the statement of the Colorado court in the last-cited case: "There have been a number of similar cases brought to this court * in which the action of the district court has been reviewed. These cases afford no precedent by which we are to be controlled; the question of jurisdiction not having been raised or brought to the attention of the court." ing is special in nature, the authority to proceed being derived wholly from statute. though the proceeding is civil in its nature, as distinguished from criminal, it is not a civil action. No right of appeal was conferred by the statute upon either the petitioner or any person aggrieved by the action of the court. We have no doubt that the Legislature did not intend that an appeal should be allowed therefrom. The action of the trial court in such a proceeding is final, unless the right to appeal was conferred upon the state by virtue of the fact that section 5475, supra, provides that the amounts to be paid as taxes, as shown by 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 question of the right of one of the parties to appeal the court said: We are advised by appellant that in the absence of a right of appeal in such cases a 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 statute, unless the authorizing statute itself defines a mode of enforcing the right at variance from the procedure prescribed by the Code." We are convinced that section 1, c. 77, Laws 1915, refers only to the ordinary civil actions and that it cannot be held applicable to special statutory proceedings. In Schuster v. Schuster, 84 Minn. 403, 87 N. W. 1014, the court said: others. The argument assumes that the district court is obliged to grant the relief prayed for in the petition because of the recof course, such is not the case. ommendation of the district attorney, but, Whether such cases should be reviewed by a court superior to the district court is a legislative question, and, the Legislature not having made provision for such review, 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. fers a right, and authorizes a special application to a court to enforce it, the proceeding is special within the ordinary meaning of the term 'special proceeding.'" * * Where the law con See, also, Anderson v. Englehart, 18 Wyo. HANNA, C. J., and ROBERTS, J., concur. (No. 2115.) (Syllabus by the Court.) (23 N. M. 585) APPEAL AND ERROR 41(1)-PROCEEDING TO An appeal does not lie to this court from a judgment rendered by a district court in proceedings instituted under section 5475, Code 196, 105 Pac. 571, Ann. Cas. 1912B, 1375, ATCHISON, T. & S. F. RY. CO. v. STATE. and 7 Words and Phrases (Second Series) 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 statute. Unlike the ordinary civil action the matter is submitted to the court through the intervention of the district attorney, who must first be satisfied that the relief prayed for in the petition should be granted to avoid injustice to the petitioner. The proceeding is begun by petition, rather than by complaint. No process is served upon the state or any tax official. The court determines the right of the matter in an ex parte hearing. The order or judgment of the court operates upon an official not made a party to 1915. Appeal from District Court, Socorro County; Mechem, Judge. Proceeding by the Atchison, Topeka & Santa Fé Railway Company against the State of New Mexico. Judgment for plaintiff, and defendant appeals. Dismissed 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 appellee. PARKER, J. This is an appeal by the state of New Mexico from a judgment rendered by the district court in proceedings instituted under section 5475, Code 1915. In the case of In re Rosenwald Bros., a corporation, 170 Pac. 42, we held that an appeal did not lie in such cases from the judgment of the trial court. The appeal herein will therefore be dismissed; and it is so ordered. HANNA, C. J., and ROBERTS, J., concur. (23 N. M. 584) STATE v. ROSENWALD et al. (No. 2101.) (Supreme Court of New Mexico. Jan. 8, 1918.) (Syllabus by the Court.) APPEAL AND ERROR 41(1)-REDUCTION OF ASSESSMENT STATUTES. An appeal does not lie to this court from a judgment rendered by a district court in proceedings instituted under section 5475, Code 1915. Appeal from District Court, Bernalillo County; Raynolds, Judge. O. P. Easterwood, of Clayton, and W. J. Eaton, of Socorro, for plaintiff in error: Joseph Gill, of Clayton, for defendant in er ror. HANNA, C. J. The plaintiff in error assigns nine reasons why the judgment of the trial court should be reversed. Each error assigned depends upon the record of the transcript of testimony and proceedings at the trial. That record is certified to by the stenographer, but was not made a part of the record by bill of exceptions, nor certified to by the trial judge. The certificate of the stenographer is not sufficient in itself to make such proceedings a part of the record for review here. Cox v. Duglas Candy Co., 22 N. M. 410, 163 Pac. 251; Rogers v. Craw ford, 22 N. M. 365, 161 Pac. 1184. Consequently the judgment of the trial court will be affirmed, and it is so ordered. PARKER and ROBERTS, JJ., concur. (23 N. M. 563) MORRILL v. MASTIN et al. (No. 2031.) Proceeding by D. S. Rosenwald and S. U. (Supreme Court of New Mexico. Jan. 7, 1918.) Rosenwald, doing business under the name of the New Mexico Cigar Company, for a reduction of an assessment. From an order granting relief, the State of New Mexico appeals. Dismissed. H. L. Patton, Atty. Gen., for the State. James R. Moore, of Los Angeles, Cal., for appellees. PARKER, J. This case is controlled by our decision In re Rosenwald Bros., a corporation, 170 Pac. 42, and In re Atchison, T. & S. F. Ry. Co. v. State, 170 Pac. 44, neither of which has yet been officially reported. The appeal will therefore be dismissed; and it is so ordered. (Syllabus by the Court.) 1. APPEAL AND ERROR 169-NONJURISDIC- Officers and agents of a corporation have no power to agree with a subscriber of the capital stock of such corporation that he may cancel his subscription at his option, any time before the maturity of the note given in payment thereof, and have his note returned to him, unless such power is conferred upon such officers by charter or statute or the by-laws of the corporation. Appeal from District Court, Grant County; Neblett, Judge. Action by Charles B. Morrill, receiver of HANNA, C. J., and ROBERTS, J., concur. the People's Savings Bank & Trust Company, (23 N. M. 687) against M. D. Mastin and the Capital Savings Investment Company. Judgment for EATON V. FIRST NAT. BANK OF DAL- plaintiff upon a directed verdict, and defendants appeal. Affirmed. HART, TEX. (No. 1943.)* (Supreme Court of New Mexico. Jan. 7, 1918.) (Syllabus by the Court.) APPEAL AND ERROR 547(1), 612(1)—TRan- H. D. Terrell, of Silver City, for appellants. James Royall, of Silver City, for appellee. HANNA, C. J. This is an action brought · 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, against 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. Action between William J. Eaton and the First National Bank of Dalhart, Texas. authorized to do business in this state. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The note was in the sum of $1,000 and than payment, because the evidence of appelI represented the payment of appellant's sub- 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 diswas 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 therefore properly excluded. The record does not disclose the exact theory upon which the trial court determined this question. Practically the same question was presented in the case of Morrill, Receiver, v. Charles D. Harris, 167 Pac. 276. There it was contended that the court was in error in striking out testimony tending to show that an agree ment was made between the appellant and the agent of a bank, whereby the appellant was permitted to demand a cancellation of his stock subscription and the return of the note given therefor any time prior to its maturity. It was held that such an agreement was contrary to public policy, and that the officers and directors of the bank had no authority to make such an agreement, unless such power is given them by statute, charter, or by-laws. There is no evidence in the record here disclosing any such power in the president, agent, or any other officer of the investment company. The trial court was not in error in striking out such testi [1] 1. The appellant contends that the court was in error in directing a verdict for appellee. The argument goes to the proposition that the evidence disclosed that upon the face of the note appeared a paid stamp mark, and therefore it became incumbent upon the appellee, under section 717, Code 1915, to explain this evidence showing a prima facie case of payment or cancellation of the note. Not having sustained that burden, appellant argues that the court should not have directed a verdict in favor of appellee. The section of the statute cited, supra, provides, in effect, that a cancellation of a negotiable instrument made unintentionally, or under mistake, or without authority, is inoperative, but where an instrument or signature thereon appears to have been canceled, the burden of proof rests upon the party alleging that the cancellation was unintentional, or made under mistake or without authority. The supposition is that appellant contends that the paid stamp The judgment of the trial court will therefore be affirmed, and it is so ordered. ROBERTS and PARKER, JJ., concur. (23 N. M. 558) WALTERS v. DITTO. (No. 2047.) (Supreme Court of New Mexico. Dec. 31, 1917.) (Syllabus by the Court.) WARRANTY of these sheep, a portion of which were inspected by appellee, was $2.00 per head, and to secure the payment of this purchase price appellee executed and delivered to appellant the promissory note and mortgage in question. Thereafter, on the 25th day of November, 1914, the appellant and appellee agreed upon the sale of another herd of sheep to the number of about 639. It was alleged that it was agreed between the parties that 1. SALES 261(7), 270, 273(5) said sheep were to be of better quality than OF QUALITY INSPECTION 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 information 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 some defect in the article; ered, but appellant stated that it would be but this rule does not apply where the purchaser orders goods of a certain character, and he almost impossible to locate them convenientrelies 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 lambs shall weigh between 60 and 70 pounds, hey upon said description of said sheep and warrants the truth of such statements. Action by Ray Walters against C. G. Ditto, with cross-complaint by defendant. Judgment for defendant upon the cross-complaint, and for plaintiff for the difference, and plaintiff appeals. Affirmed. Gibbany & Epstein, of Roswell, for appellant. R. D. Bowers, of Roswell, for appel lee. the representation and word of appellant; that at the time of making said contract appellee gave to the appellant his certain promissory note in writing for the sum of $2,271.50, dated November 25, 1914, and interest, and that to secure the note the defendant made and executed a certain mortgage upon described real estate in Chaves county, N. M.; that on the 15th day of December thereafter appellant delivered to appellee all of the sheep contracted for in both deals, except such number as had been lost during delivery. Appellant was not present at the time the sheep were delivered, but they were driven to appellee's home by employés of alpellant. At the time of the delivery appellee inspected the sheep, and found that, in spite of the increased price paid for the second herd, they were of much poorer quality ROBERTS, J. This action was instituted than the herd first pointed out; that conin 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 unsatnote, amounting to $706.64 and interest. Ap-isfactory condition, and contrary to the terms pellee filed an answer and cross-complaint, of the contract. Appellee notified appellant 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 against the note, reciting in detail the facts, which we summarize as follows: to agree upon an adjustment of the matter, but were unable to do so, and appellee notified 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 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |