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GOODWIN v. TRAVIS.

GOODWIN v. TRAVIS.

No. 5691.

Supreme Court of New Mexico.

June 23, 1954.

*673 Robert W. Ward, Lovington, for appellant.

G.T. Hanners, Lovington, for appellee.

SEYMOUR, Justice.

Administrator of the estate of Mary Frances Bilderback sued Escola Travis for $3,400 allegedly loaned to defendant by decedent in several transactions during the latter years of decedent’s life. The transactions took place in 1948 to 1950, inclusive. Defendant admitted receipt of such moneys but denied the indebtedness, alleging said moneys to have been given to her by decedent ” as a gift and for services rendered .” During the course of trial and for the purpose of meeting the defense of “gift” administrator was permitted to amend his reply and inject into the case issues as to the mental capacity of decedent and as to alleged undue influence of defendant over decedent. At the conclusion of trial the court dismissed plaintiff’s complaint from which judgment this appeal is taken.

Appellant has briefed and argued only one point, broken down into numerous headings. Substantially, three questions are raised: (1) Is the defense of “gift” corroborated as required by § 20-205, 1941 Compilation Annotated? (2) Are the findings of fact of the trial court supported by substantial evidence? (3) Did the trial court err in refusing to make ten of plaintiff’s requested findings of fact?

The trial court prepared and made findings of fact different from those submitted by either of the parties. Since a statement of facts is necessary to any understanding of this opinion and appellant’s attack is directed in large part at the findings of fact of the trial court, it seems best to quote them in full.

“Findings of Fact “1. For a number of years prior to May, 1948, Mary Frances Bilderback resided at Tatum, New Mexico. Her husband had been dead for sometime. Her grandson, J.L. Eaton, had moved from Tatum to the City of Lubbock, Texas, in the year 1943. He saw his grandmother from time to time *674 subsequent to May, 1948, and until her death. Except for short periods of time, Mary Frances Bilderback resided alone and did not have any relatives in Tatum to care for her and to assist her in carrying out her daily requirements for groceries, mail delivery, pleasure rides in the automobile, trips about town for other purposes and going to and from church. “2. After J.L. Eaton moved from Tatum to Lubbock, Escola Travis performed numerous gratuitous services for Mary Frances Bilderback. She visited her in her home almost daily, drove her car for her, obtained her mail for her, purchased groceries for her, drove Mary Frances Bilderback to the store, and on various errands and trips as indicated by Mrs. Bilderback that she desired to make. “3. Because of the attention shown Mary Frances Bilderback by Escola Travis, and the services rendered by Escola Travis, Mrs. Bilderback developed a strong affection for the defendant and developed a feeling of gratitude to Escola Travis for the care and attention which the defendant had shown her. “4. At the time of the death of Mrs. Bilderback in November, 1951, she was eighty-six years of age, and for sometime prior to her death, was laboring under many of the infirmities of age, both mentally and physically. Her mental capacity during the time material to this case was such that she was perfectly well aware of her doings and her business, knew her property and the objects of her bounty and affection, and apparently developed a feeling that her grandson, J.L. Eaton, had not given her the attention that she felt she should have had. “5. March 10, 1950, Mrs. Bilderback conveyed to J.L. Eaton by warranty deed, real estate at Tatum, New Mexico. June 8, 1950, she executed her last will and testament naming J.L. Eaton as sole beneficiary and devisee, well knowing that prior to the execution of said will, she had made various gifts to the defendant Escola Travis. “6. May 10, 1948, Mary Frances Bilderback gave to the defendant $4,500.00 as a gift. January 24, 1949, Mary Bilderback gave the defendant $400.00 as a gift. April 3, 1950, Mary Bilderback gave to the defendant the sum of $500.00 as a gift, and in connection with said $500.00 transaction, the defendant gave to Mary Frances Bilderback an I.O.U. providing for monthly payments, which instrument was not accepted by Mary Bilderback as an evidence of indebtedness, nor did she want the defendant to repay the money. “7. July 1, 1948, Mary Frances Bilderback gave to the defendant approximately $100.00 to be used in the purchase of necessary household items for Mary Frances Bilderback; that said sum was expended by the defendant at the direction of Mary Frances Bilderback and that Mary Frances Bilderback received all of the benefits of the expenditures of said money. “8. For some reason, Mary Frances Bilderback subsequent to the gifts to the defendant actively permitted her grandson to believe that the sums of money given to Escola Travis were loans and that her actions in this regard stemmed from the feeling of gratitude and of indebtedness toward the defendant by Mary Frances Bilderback, and the feeling that she had been neglected on the part of Mary Frances Bilderback by her grandson. “9. The grandson and his attorney made demands upon the defendant for repayment of the sums of money which Mary Bilderback had given the defendant, and Mary Frances Bilderback, September 6, 1950, caused an affidavit to be prepared for her by A.D. Williams, Attorney at Law, Hobbs, New Mexico, reciting that the sums of money heretofore mentioned were gifts and were not loans, and that the affidavit was executed to give this defendant a complete defense against any suit that might be *675 based thereupon. At the time of the execution of the affidavit, the said Mary Frances Bilderback was in full possession of her mental faculties, knew and understood what she was doing and was acting freely and voluntarily and not under the coercion of the defendant or any other person. “10. That the defendant did not exercise any undue influence of fraud upon Mary Frances Bilderback to obtain the sums of money given her by said Mary Frances Bilderback.”

From the foregoing findings of fact the court concluded as a matter of law, as follows:

“Conclusions of Law. “1. That the testimony of the defendant with respect to the gifts by Mary Frances Bilderback has been corroborated as required. “2. That the sums of money given to the defendant by Mary Frances Bilderback were gifts and not loans and that the defendant is not now indebted to the administrator of the estate of said Mary Frances Bilderback in any amount of money. “3. That no fraud, undue influence or coercion was practiced upon or brought to bear upon said Mary Frances Bilderback at the time of the making of the gift or at any other time material to this suit. “4. That at the time of the making of the gifts to Escola Travis, Mary Frances Bilderback was mentally competent to make said gifts and knew and understood the consequences of said gifts. “5. Plaintiff’s Complaint should be dismissed.”

On the first question of corroboration, the affidavit referred to in finding of fact No. 9 is conclusive as against the contention of appellant based upon § 20-205, supra. This affidavit was prepared more than one year prior to decedent’s death by an attorney of recognized integrity; it detailed each money transaction involved in the instant case; it categorically stated that each of the questioned transactions originated as a gift to defendant; it stated in unmistakable language that the purpose of the affidavit was to protect appellee against any assertion that such moneys were a loan instead of a gift; and, finally, the attorney who prepared the affidavit for the signature of decedent testified that prior to the preparation and execution of the document he talked alone with decedent for an hour, that her demeanor was absolutely normal, that her thinking was clear, and that her desire was very strong to protect appellee against just such a claim as this now made by appellant.

It is difficult to imagine more convincingly corroborative evidence than this sworn affidavit executed by decedent. It fully meets the requirements of § 20-205, supra, as stated in that act and as interpreted in the many cases cited in “Notes to Decisions” under that section in the New Mexico Statutes, 1941 Annotated.

Appellant questions the sufficiency of the evidence to support the findings of fact of the trial court. A reading of the record shows this contention to be without merit; parenthetically in this regard, and with particular reference to the alleged mental incapacity, fraud, undue influence, and coercion, it is interesting to note from the testimony of Mr. Eaton, the surviving grandson, that subsequent to the transactions of which complaint is made, the decedent executed and delivered to Mr. Eaton four deeds covering properties belonging to decedent and further executed a will leaving her whole estate to Mr. Eaton. In connection with these documents Mr. Eaton testified that decedent was in her right mind and knew what she was doing.

Appellant’s third question arises from the trial court’s refusal to make numerous findings of fact requested by him. Many of these were covered by findings already made and therefore properly refused; others were in direct conflict with facts found by the court in support of its conclusions of law and decision. Obviously, the refusal of these was not error since we have determined that the court’s findings were supported by substantial evidence.

With regard to this point particular emphasis is placed upon the refusal *676 of many detailed findings as to decedent’s age, specific physical weaknesses, personal habits and peculiarities, and similar evidentiary matters. There is no obligation on the part of the court to find all of the relevant facts but only such ultimate facts as are necessary to determine the issues in the case. Appellant asserts that the court’s finding of fact No. 10 to the effect that there was no undue influence or fraud on the part of appellee is a conclusion of law, not a finding of fact, and that he, appellant, was entitled to the findings of fact requested on these details. In many instances the ultimate facts to be properly found by a trial court are indistinguishable from and identical to conclusions of law which are also found by the court. The instant case is a good example. Conclusion of law No. 3 and finding of fact No. 10, both quoted above, differ in no substantial respect.

This court already has explored the distinction between findings of fact and conclusions of law. Two of many cases are Christmas v. Cowden, 1940, 44 N.M. 517, 105 P.2d 484 and Sundt v. Tobin Quarries, 1946, 50 N.M. 254, 175 P.2d 684, 169 A.L.R. 586. Refinements of this distinction can serve only to force the trial courts further into the useless procedure of preparing a resume of all of the evidentiary facts, a time-consuming and unnecessary task. It is our conclusion that the absence of fraud or undue influence comprehended in finding of fact No. 10 was a proper finding of an ultimate fact and that the court had no obligation to find the evidentiary facts requested by appellant. Had this case been tried to a jury and a general verdict resulted for defendant, assuming proper instructions on fraud and undue influence, such verdict would be treated by this court as a finding that no fraud or undue influence was exercised by appellee. Since the primary duty of a jury is to determine facts, it necessarily follows that the existence or non-existence of fraud or undue influence is an ultimate fact and one which a court without a jury may properly find.

Whether or not the evidentiary facts are substantial in their support of the ultimate fact found by the trial court is one of the legal questions for determination by this court, already determined in the instant case in favor of appellee.

The propriety of the court’s conclusions of law Nos. 2, 3 and 4 is not a question of significance. At most they are harmless surplusage. It occurs to us that conclusions 1 and 5 cover the legal conclusions necessary to dispose of this case upon the issues framed and the facts found.

We find no merit in the other contentions made by appellant. Judgment is affirmed.

It is so ordered.

McGHEE, C.J., and SADLER, COMPTON and LUJAN, JJ., concur.

WILSON v. WILSON.

WILSON v. WILSON.

No. 5733.

Supreme Court of New Mexico.

June 24, 1954.

Gore & Nieves, Clovis, for appellant.

Howard F. Houk, Santa Fe, Amicus Curiae.

McGHEE, Chief Justice.

The plaintiff, Neil W. Wilson, sued his wife, Shirley R. Wilson, for divorce on the ground of incompatibility. The plaintiff, at the time this action was brought, was serving in the United States’ Air Force and stationed at Clovis Air Force Base, Curry County, New Mexico, and had been continuously there stationed for a period of one year immediately prior to the bringing of the action. It was brought under the 1951 amendment to § 25-704, N.M.S.A., 1941 Comp., Ch. 107, Laws of 1951. The entire section, as amended, reads as follows:

“The plaintiff in action for the dissolution of the bonds of matrimony must have been an actual resident, in good faith, of the state for one (1) year next preceding the filing of his or her complaint; Provided, however, that in a suit for the dissolution of the bonds of matrimony wherein the wife is plaintiff, the residence of the husband in this state shall inure to her benefit and she may institute such action setting up any of the causes mentioned in section 2773 (25-701) immediately after the accrual thereof, providing her husband shall have been qualified as to residence to institute a similar action; and provided further, persons serving in any military branch of the United States government who have been continuously stationed in any military base or installation in the state of New Mexico for such period of one (1) year, shall for the purposes hereof, be deemed residents in good faith of the state and county where such military base or installation is located.” (Italics supplied.)

The italicized portion of the above section was added by the 1951 amendment.

The defendant entered her formal appearance and waiver of service of process, and she does not appear before this Court. At the trial of the cause, the lower court upon its own motion dismissed the plaintiff’s *320 complaint after finding the fact of military service as set out above, that the parties were married in Wyoming in 1951, that incompatibility existed between them, that there were no children of the marriage, that the parties had acquired no community property, and, finally, that the home of the plaintiff was in Salt Lake City, Utah. The conclusions of law made by the lower court were:

“I. That this Court does not have jurisdiction of the parties plaintiff or defendant. “II. That Chapter 107, of the New Mexico Session Laws of 1951, appearing at Section 25-704 of the New Mexico Statutes, 1941 compilation, is contrary to Section 4, Article 7, of the Constitution of the State of New Mexico, and as such is void. “III. That plaintiff’s complaint should be dismissed.”

So far as pertinent, Article 7, New Mexico Constitution, provides:

“Elective Franchise “§ 1. (Qualifications of voters School elections Registration.) Every male citizen of the United States, who is over the age of twenty-one years, and has resided in New Mexico twelve months, * * *. “§ 2. (Qualifications for holding office.) Every citizen of the United States who is a legal resident of the state and is a qualified elector therein, shall be qualified to hold any public office in the state * * *. “§ 3. (Religious and racial equality protected Restrictions on amendments.) The right of any citizen of the state to vote, hold office, or sit upon juries, shall never be restricted, abridged or impaired on account of religion, race, language or color, * * *. “§ 4. (Residence.) No person shall be deemed to have acquired or lost residence by reason of his presence or absence while employed in the service of the United States or of the state, nor while a student at any school. “§ 5. (Election by ballot Plurality elects candidate.) All elections shall be by ballot, and the person who receives the highest number of votes for any office shall be declared elected thereto.”

It is probable the trial court was influenced to declare Ch. 107, Laws of 1951, in violation of Art. 7, § 4, supra, by the language of this Court in Allen v. Allen, 1948, 52 N.M. 174, 194 P.2d 270, 273, where it is said:

“There is apparently no question that the appellee actually lived, and continued to live in this state during the required period. The dispute is about whether such dwelling or living here constituted him a bona fide resident in the use of that term in the statute. We are of the opinion that it did not. “Article 7, Section 4, of the New Mexico Constitution provides: * * *. “However, this section of the constitution does not mean that a soldier stationed in this state may not acquire residence in this state, but it does mean that he may not acquire a residence from the mere fact that he was stationed therein for whatever period of time he may be so stationed. Apart from that service he must establish a residence in the state with the intention of making it his permanent residence.”

The Allen case arose under § 25-704 before the 1951 amendment, and under such earlier statute, the words “actual resident, in good faith” were considered to refer to domicile. Therefore, under the law of this state as it then existed, the result of the Allen case was in accordance with the very general rule and the rule of the common law regarding acquisition of domicile by one in military service, and decision was made in accordance with such principles, rather than under the constitutional provision, Art. 7, § 4, supra.

Zimmerman v. Zimmerman, 1945, 175 Or. 585, 155 P.2d 293, contains a scholarly analysis of a constitutional provision in Oregon, Art. II, § 4, which the Oregon *321 court therein declared to be substantially identical with our Art. 7, § 4. The Oregon provision is:

“Residence. For the purpose of voting, no person shall be deemed to have gained, or lost a residence, by reason of his presence, or absence while employed in the service of the United States, or of this State; nor while engaged in the navigation of the waters of this State, or of the United States, or of the high seas; nor while a student of any Seminary of Learning; nor while kept at any alms house, or other assylum (sic), at public expence (sic); nor while confined in any public prison.”

Many other states are listed in the Zimmerman opinion as having like constitutional provisions, and in three cases discussed in the course of the opinion from such other states, likewise involving divorce proceedings, the constitutional provisions were held to go solely to the matter of gaining or losing residence for voting purposes, or by absence of mention were apparently deemed not applicable. Hawkins v. Winstead, 1943, 65 Idaho 12, 138 P.2d 972; Trigg v. Trigg, 1931, 226 Mo. App. 284, 41 S.W.2d 583, and Kankelborg v. Kankelborg, 1939, 199 Wash. 259, 90 P.2d 1018. Parenthetically, it should be mentioned the last two of these cases were cited in the Allen case in support of the conclusion there reached.

While the Oregon provision set out above contains the express limitation, “For the purpose of voting,” and such limitation is absent from the provision before us, the Oregon court was also concerned with Art. II, § 5, Oregon Constitution, to-wit:

“No soldier, seaman, or marine in the Army, or Navy of the United States, or of their allies, shall be deemed to have acquired a residence in the state, in consequence of having been stationed within the same; nor shall any such soldier, seaman, or marine have the right to vote.”

This section, not being expressly limited to the right to vote was held not to preclude the acquisition of residence (domicile) by one within the state on military assignment, but only to declare that such person could not acquire residence (domicile) by that fact alone.

We are asked to determine whether our constitutional provision, which contains within itself no limitation such as “For the purpose of voting,” prevents our legislature from declaring a person continuously stationed within this state for a prescribed length of time upon military assignment shall be deemed a resident in good faith of this state for the purposes of § 25-704, supra.

As noted above, the Oregon court compared our constitutional provision to its Art. II, § 4, which was limited to voting, and not to its Art. II, § 5, where the language was general. We entertain no reluctance to declare such construction to be valid. Housed as our provision is, in an article of our Constitution where every other section is limited to and concerned with the elective franchise, elections and the right to hold office (with the exception of a lone reference to the right to serve upon juries, Art. 7, § 3), we can only conclude it was the intention of the framers that § 4 likewise had to do with residence for the purpose of voting, or holding office, despite its seeming general content when standing alone. That this determination is correct is also borne out by the painstaking study made by appellant’s counsel of the procedure of the Constitutional Convention of this state, and the work of the Committee on Elective Franchise. “Proceedings of the Constitutional Convention of the Proposed State of New Mexico.”

Therefore, our legislature may constitutionally confer the status of resident for divorce purposes upon those continuously stationed within this state by reason of military assignment. Chaney v. Chaney, 1949, 53 N.M. 66, 70, 201 P.2d 782. See Craig v. Craig, 1936, 143 Kan. 624, 56 P.2d 464 and annotation in 21 A.L.R.2d 1163, at p. 1179, § 12.

Although the trial court concluded it did not have jurisdiction of the parties to this action, unquestionably it did have, as the plaintiff appeared personally and the defendant *322 had, as heretofore noted, entered her appearance of record. The court found the plaintiff had been continuously stationed at the Clovis Air Force Base for a period of one year immediately prior to filing this action, which fact meets the exact requirement set forth in the 1951 amendment to § 25-704, supra, for the institution of such action. Consequently it was error for the lower court to dismiss the plaintiff’s complaint, and the cause is reversed and remanded with direction to the lower court to reinstate plaintiff’s complaint and proceed accordingly. It is so ordered.

SADLER, COMPTON, LUJAN and SEYMOUR, JJ., concur.

MARR v. NAGEL.

MARR v. NAGEL.

No. 5744.

Supreme Court of New Mexico.

July 14, 1954.

Rehearing Denied August 6, 1954.

Iden & Johnson, Albuquerque, for Eugene Nagel.

*682 Joseph L. Smith, Arturo G. Ortega, Albuquerque, for cross-appellants Russell.

Vance Mauney, Albuquerque, for cross-appellant and appellee Tapia.

Lorenzo A. Chavez, and Benigno C. Hernandez, Jr., Albuquerque, for Robert M. Marr.

Simms & Modrall, and George T. Harris, Jr., Renee Kalia, Albuquerque, for Frank Cohn.

FEDERICI, District Judge.

This is an appeal from the District Court involving a jury trial, and orders and judgments regarding several parties entered with respect thereto, all arising from a four car collision, and is before us on motions to dismiss appeals.

Plaintiff, Robert M. Marr, filed suit against the defendants, Eugene Nagel, Allan Stamm, Frank Cohn, and the administrator of the Estate of John N. Tapia, Jr. The action against Stamm was early dismissed, and he will no further be referred to as a party. Then J.V. Russell and Opal Russell, his wife, filed their complaint in intervention against the above named defendants. Then the administrator of the Tapia Estate filed a cross claim against the defendant Nagel. The issues raised by the pleadings revolve about the question of negligence of the parties, and claims for damages and related matters.

Briefly the facts appear to be that this four car collision occurred on Highway 85 between Santa Fe and Albuquerque on October 6, 1951, around 7 P.M., it being apparently dark and the cars apparently had their headlights turned on. The automobile driven by John N. Tapia, Jr., was in the lead of three south-bound cars approaching a bridge. The automobile of plaintiff, Robert M. Marr, was following the Tapia car. The defendant Frank Cohn’s car was following the Marr car. The Cohn car started to overtake and did pass the Marr car, when there appeared on the scene the north-bound truck of defendant, Eugene Nagel, whereupon the Cohn car pulled back into the right lane of traffic in front of the Marr car just passed, and behind the Tapia car which had been ahead of the Marr car. About this time the northbound Nagel truck side-swiped the lead south-bound Tapia car, and the Nagel truck continued northward sideswiping also the second south-bound car, which was the Cohn car, and continued northerly to his left side of the road and struck the third south-bound car, being the Marr car, which by then was practically stopped, having slowed up after the Cohn car passed and pulled in front of the Marr car and behind the Tapia car. The accident resulted in death to Tapia, personal injuries to plaintiff Marr and intervener Opal Russell, who was a passenger in the Marr car.

The jury’s verdict in the form of answers to special interrogatories was as follows:

“Special Interrogatories “1. Do you find the collision between the vehicle driven by the Defendant Nagel and that driven by John N. Tapia, Jr., deceased, was an unavoidable accident? (Yes or No) No “2. Do you find that the collision between the vehicle operated by the Defendant Nagel and the vehicle operated by the Plaintiff Marr, was an unavoidable accident? (Yes or No) No “(If you answer both Number 1 and Number 2 `Yes’, do not answer any further interrogatories. “3. Do you find that the Defendant Nagel was negligent as regards his collision with the Defendant Tapia’s vehicle, and do you further find that said negligence was the proximate cause of the death of John N. Tapia, Jr., deceased? (Yes or No) No “4. Do you find that as regards the collision between the Nagel and Tapia vehicles, the decedent Tapia was negligent, and that such negligence caused or contributed to the causing of said collision? (Yes or No) No “5. Do you find that the Defendant Nagel, as regards the collision between the Nagel and the Marr vehicles, was negligent, and do you further find that such negligence was the proximate *683 cause, or a proximate contributing cause to such collision? (Yes or No) No “6. Do you find that John N. Tapia, Jr., was negligent as to the collision between the Tapia car and the Nagel truck, and do you further find that such negligence on the part of Tapia contributed to or was the proximate cause of the collision between the Nagel truck and the Marr vehicle? (Yes or No) No “7. Do you find that the Defendant Cohn was negligent, and do you further find that the Defendant Cohn’s negligence was the proximate cause or a contributing proximate cause to the collision between the Nagel and the Marr vehicles? (Yes or No) No “8. Do you find that the Plaintiff Robert M. Marr, was negligent, and do you further find that such negligence was a contributing cause to the collision between the Nagel and Marr vehicles? (Yes or No) No “9. If you find any or all of the Defendants negligent in the collision involving the Marr car and the Nagel truck, and that such negligence on the part of each Defendant was either the proximate cause or a contributing proximate cause to the collision between the Nagel and Marr vehicles, specify the damages proximately suffered by each of the following parties:

    Robert M. Marr:      $10,000.00
    Opal Russell:        $ 2,000.00
    J.V. Russell:        $   None

“10. If you find that the Defendant Nagel was negligent, and that his negligence was the sole proximate cause of the collision between him and John N. Tapia, Jr., deceased, and that John Tapia was not negligent, specify the damages suffered by John Tapia’s

   Estate.                            $15,000.00"

The trial court granted defendant Cohn’s motion for judgment notwithstanding the special verdict rendered against him as one of the defendants and in favor of plaintiff Marr and intervener Opal Russell.

The first legal proposition raised is by motion filed in this court by defendant-appellee Cohn seeking to dismiss the appeal of Nagel and cross-appeal of Russells, claiming no appellate jurisdiction in that said appeal was not perfected, Cohn’s contention is that an appeal from an order granting a motion for judgment notwithstanding verdict must be applied for within twenty days from the entry of the judgment or order, pursuant to the provisions of Rule 5(2) of the Supreme Court Rules, providing in part as follows:

“2. Appeals shall also be allowed by the district court, and entertained by the Supreme Court, in all civil actions, from such interlocutory judgments, orders or decisions of the district courts, as practically dispose of the merits of the action, so that any further proceeding therein would be only to carry into effect such interlocutory judgment, order or decision. Appeals shall also be allowed by the district court, and entertained by the Supreme Court, from all final orders affecting a substantial right made after entry of final judgment. * * * * * * “Application for allowance of appeal under the provisions of this section must be made within twenty days from the entry of the judgment, order, decision, or conviction appealed from.” (Emphasis ours.)

On the other hand, Rule 5(1) of the Supreme Court Rules provides as follows:

“1. Within three months from the entry of any final judgment in any civil action, any party aggrieved may appeal therefrom to the Supreme Court.” (Emphasis ours.)

From a time element standpoint, admittedly the appeal was not perfected if Rule 5(2) is controlling, but was perfected if Rule 5(1) is controlling.

A brief review of what the record discloses as to this matter seems pertinent. On April 29, 1953, there was entered an instrument signed by the trial judge entitled *684 “Order for Judgment of Dismissal of Defendant Frank Cohn Notwithstanding Special Verdict,” the pertinent parts of the order for the purpose of this point reading as follows:

“Ordered, Adjudged and Decreed that the Defendant Frank Cohn’s motion for judgment of dismissal notwithstanding the special verdict is granted, and it is, therefore “Ordered that judgment be and the same hereby is entered dismissing with prejudice the action of Plaintiff and of the Intervenors herein, notwithstanding the special verdict of the jury, and “It Is Further Ordered that the Defendant Frank Cohn have and recover from Plaintiff and Intervenors said Defendant’s costs and disbursements herein, to be taxed by the Clerk of this Court; to all of which opposing counsel except and object.” (Emphasis ours).

On the same day, April 29, 1953, there was entered an instrument signed by the trial judge entitled “Judgment” and providing and reciting insofar as is pertinent hereto as follows:

“* * * and the Court having granted defendant, Frank Cohn’s Motion for Judgment notwithstanding veredicto * * *”

followed by the language:

“It Is Further Ordered, Adjudged and Decreed that the intervenor, J.V. Russell, have nothing against the defendants, * * * Frank Cohn.”

and concluding:

“It Is Further Ordered, Adjudged and Decreed That Plaintiff, Robert M. Marr, and intervenor, Opal Russell, have nothing against defendants * * * Frank Cohn.”

On July 6, 1953, defendant Nagel applied to the District Court for an appeal from the judgment entered on April 29, 1953, against him and in favor of Marr and Opal Russell, which appeal was allowed by order on the same date. On the same day notice of such appeal was given to Marr, Cohn, the Tapia Estate, and the Russells. On July 15, 1953, interveners Russell applied for a cross-appeal from the final judgment of the court, which cross-appeal was granted by the District Court on the same date. On the same day notice of such cross-appeal was given to all of the parties, including Cohn.

Consequently, insofar as the application for appeal by Nagel, cross-appeal by Russells, and notice thereof to all parties, including Cohn, we find no fault therewith as far as tying in all of the parties, including Cohn, by virtue of the application and allowance of the Nagel appeal and notice to all of the parties, together with the application and allowance of the Russell cross-appeal, together with notice to all parties. In other words, insofar as this necessary first step is concerned in the possible perfection of the appeal, we find that at least in the District Court all parties were properly before the court for the purpose of the allowing of the appeal and cross-appeal, aside, of course, from the question of whether the applications for appeal and cross-appeal were timely made, which we shall dispose of next.

The question remains, therefore, whether the application for the appeal and cross-appeal should have been made within the twenty day limit prescribed by Supreme Court Rule 5(2), supra, or whether the appeal and cross-appeal were properly allowed within the three months’ provision of Rule 5(1) supra.

The rule seems to be stated in elementary language in 2 Am.Jur., Appeal and Error, § 22, as follows:

“What Is a Final Judgment, Order, or Decree. A judgment, order, or decree, to be final for purposes of an appeal or error, must dispose of the cause, or a distinct branch thereof, as to all the parties, reserving no further questions or directions for future determination. * * * In other words, a final judgment is one which operates to divest some right in such a manner as to put it beyond the power of the court making the order to place the parties in their original condition * * *” (Emphasis ours).

It is our view that the order for judgment of dismissal of defendant Frank Cohn not-withstanding *685 the special verdict, and the reiteration of the substance thereof in the judgment entered on the same day, constitutes a final judgment within the meaning of Rule 5(1) of the Supreme Court Rules allowing three months’ time in which to appeal therefrom. It appears that both the order and the judgment fall within the elementary definition of what constitutes a final judgment, order, or decree as set out in Am.Jur., supra.

The second legal proposition raised by defendant Cohn’s motion to dismiss the appeal, is his contention that appellant Nagel is not an aggrieved party within the meaning of Rule 5(1) of the Supreme Court set out supra. Defendant Nagel’s assignments of error in this court are not directed against the judgment obtained against him by plaintiff Marr, but rather urge error on the part of the trial court in entering the order for judgment of dismissal of defendant Cohn notwithstanding the special verdict of the jury against him. The contention in effect made by Cohn in his motion to dismiss the appeal is that a defendant (Nagel) cannot complain of the granting of a motion for judgment notwithstanding verdict in favor of a co-defendant (Cohn), and consequently not having been aggrieved thereby cannot entertain an appeal therefrom, because not being an aggrieved party within the meaning of Rule 5(1), supra.

It must be remembered that plaintiff Marr obtained a ten thousand dollar verdict by the jury’s answers to special interrogatories against both the defendant Nagel and his co-defendant Cohn. The trial court released Cohn from all liability under the verdict by sustaining his motion for judgment notwithstanding the verdict. Was defendant Nagel aggrieved thereby to the extent that he be entitled to have this court review the question of whether or not the trial court erred in granting a motion relieving his co-defendant of all liability? In view of the provisions of Chapter 121, New Mexico Session Laws, 1947, § 21-118 et seq., Supplement N.M.S. 1941 Ann., providing for the right of contribution among joint tortfeasors, a joint tortfeasor (Nagel) does have a possible interest in the retention of a joint verdict which if left undisturbed by a trial court would as a matter of form result in a joint judgment against him and also against a co-defendant joint tortfeasor (Cohn). This is true because of a possible right of contribution from Cohn if he, Nagel, should have to pay and discharge a judgment in favor of their common plaintiff Marr had Cohn remained as a resulting joint judgment debtor along with Nagel. Certainly then, when the trial court discharged the co-defendant and joint tortfeasor, Cohn, from all liability to the common plaintiff Marr, and for that matter in favor of the interveners Russell, the other joint tortfeasor Nagel, because of the provisions of the foregoing statute, certainly became an aggrieved party at least to the extent that the trial court in discharging the co-defendant and joint tortfeasor, Cohn, (so far as he was found by the jury to be a joint tortfeasor) thereby deprived him, Nagel, of a possible right of contribution from the co-defendant Cohn. And as so possibly aggrieved he certainly should have a right to have this court review the action of the trial court in holding in effect that Cohn was not a joint tortfeasor notwithstanding the verdict of the jury to the contrary, and to the effect that Cohn was, as Nagel’s co-defendant, a joint tortfeasor along with the defendant Nagel. We hold, therefore, that under the facts outlined above the defendant Nagel was an aggrieved party within the meaning of Rule 5(1), supra for the purpose of obtaining a review in this Court of the ruling of the trial court in granting judgment in favor of the co-defendant Cohn notwithstanding the special verdict of the jury.

There are other matters raised in Cohn’s motions to dismiss the appeal and cross-appeal, and to strike briefs, which in view of this Court’s holding on the above two legal propositions, become of no significance and will be pursued no further.

The motions to dismiss will be denied. There is also a motion to strike the brief of the intervener J.V. Russell which is *686 without sufficient merit to justify favorable action thereon, and it is also denied.

It is so ordered.

McGEHEE, C.J., and SADLER, COMPTON and LUJAN, JJ., concur.

SEYMOUR, J., not participating.

FLANAGAN et al. v. BENVIE et al.

FLANAGAN et al. v. BENVIE et al.

No. 5679.

Supreme Court of New Mexico.

August 5, 1954.

*382 Garland, Sanders & Cooney, Las Cruces, for appellants.

W.C. Whatley, Renee Kalia, W.B. Darden and La Fel E. Oman, Las Cruces, for appellees.

LUJAN, Justice.

This is a suit instituted by the plaintiffs (appellants), suing in behalf of themselves and others similarly situated against the defendants (appellees) to have a certain tax deed issued to George W. Benvie, Joseph P. Medinger and Thomas H. Colcott declared void and to have it cancelled. The cause was tried to the court without a jury and it resolved the issues in favor of defendants and plaintiffs appeal.

At the conclusion of the trial the court made the following findings of fact:

“(1) The organization now in existence known as the Las Cruces Rifle and Pistol Club is a voluntary organization without legal capacity, having its inception during the summer of the year 1946 under the name of the Dona Ana Rifle and Pistol Club, and such present organization has no connection of any kind or character with the former Las Cruces Rifle and Pistol Club designated as assignee of tax sale certificate No. 5617, dated December 9, 1938, and assigned to the said Las Cruces Rifle and Pistol Club on May 20, 1940, and designated as grantee in tax deed No. 721, dated December 14, 1940. (2) That the former Las Cruces Rifle and Pistol Club designated as assignee of the said tax sales certificate No. 5617 and as grantee in tax deed 721, as aforesaid, was a voluntary association without legal capacity to take or hold any interest in real estate by virtue of the said assignment of tax sales certificate No. 5617, or by virtue of the tax deed No. 721. (3) That the said tax sales certificate No. 5617 and the said tax deed No. 721 do not afford the means of ascertaining with certainty who the assignees or grantees were, and there is no evidence before the court as to who the individual members of the said Las Cruces Rifle and Pistol Club were as of the date of the said assignment of tax sales certificate No. 5617 or as of the date of tax deed No. 721; except that there is evidence and it is proved, and the court finds that the defendants, George W. Benvie and Joseph P. Medinger, were members of said Club at said date and time and continued to be such until the Club disbanded and were the last two remaining members thereof. That they paid its outstanding bills; that funds of the Club were exhausted; that they purchased the tax sale certificate with their own money. (4) The plaintiffs J.M. Flanagan and Donald T. Law were not members of the Las Cruces Rifle and Pistol Club as of the date of the assignment of tax sales certificate No. 5617 or as of the date of tax deed No. 721. (5) That the defendant Thomas H. Colcott was not a member of the original Las Cruces Rifle and Pistol Club at any time, and that his only connection with the present organization by that name was an inactive member for a period of one year during the years 1946-1947 when the association was known as the Dona Ana County Rifle and Pistol Club. (6) The only offer of contribution or reimbursement to the defendants for the amount paid as consideration for the tax deed granting the premises in question to the defendants George W. Benvie and Thomas H. Colcott, and one Joe P. Medinger, dated January 28, 1946, was made by and on behalf of the present members of the Las Cruces Rifle and Pistol Club, and was coupled with the demand that the whole of the premises in question should be conveyed *383 by the defendants to the present organization by the name of Las Cruces Rifle and Pistol Club.”

From the foregoing the court deduced as conclusions of Law:

“(1) The Las Cruces Rifle and Pistol Club as of May 20, 1940, as of December 14, 1940, and at all other times was a voluntary association without legal existence or capacity to take or hold any interest in real estate within the State of New Mexico. (2) The legal title to the property did not vest in the Las Cruces Rifle and Pistol Club as such under and by virtue of the tax deed of 1940. But the assessment of the property for taxes thereafter in the name of said club was a valid assessment and the subsequent sale for delinquent taxes was supported by a valid assessment. The defendants, Benvie and Medinger, as the last active members of the club, were not thereby trustees for all the previous members of the Club whose membership had lapsed, and they owed no duty out of their own funds to protect or preserve for said former members the property that had been taken or held in the name of the Club; and after the Club had disbanded and no longer existed, said defendants were not precluded from purchasing at said tax sale and taking the tax title in their own name, and in making such purchase, they were not trustees. (3) The plaintiffs, J.M. Flanagan and Donald T. Law have no right or interest whatever in the lands in question nor do the present members of the present organization by the name of the Las Cruces Rifle and Pistol Club have any right or interest whatever in the said lands in question. (4) No proper offer of contribution or reimbursement by anyone having the legal right to make such contribution or reimbursement has been made to the defendants or either of them. (5) The plaintiffs have failed to establish any right or interest whatever in the real estate in question in themselves or in any of the class of persons on whose behalf they have brought this action.”

Counsel for plaintiffs contend that the court erred in making the above findings and conclusions because not supported by the evidence; and also in refusing requested findings and conclusions submitted by them.

Suffice it to say that we have carefully examined the entire record and conclude that there is sufficient evidence of a substantial nature to support the above findings and the conclusions based thereon, except as to a part of conclusion of law No. 2, which will be discussed hereafter. This being so they will not be disturbed by us. Guzman v. Avila, 58 N.M. 43, 265 P.2d 363.

No question is raised as to the legality of any of the proceedings leading up to, and culminating in, the tax deed in question.

We recognize that unincorporated associations, clubs and societies, unless recognized by statute, have no legal existence, and ordinarily are legally incapable in their associate name of taking and holding either real or personal property, The rule is stated in 7 C.J.S., Associations, § 14 (1), page 38, as follows:

“Generally speaking an unincorporated association may not, as such, take or hold property, although its members may hold property jointly as individuals.”

The text at that point comments upon the rule in this language:

“In the absence of a statute empowering it to do so, it is ordinarily held that an unincorporated association, having no legal existence independent of the members who compose it, is incapable, as an organization, of taking or holding either real or personal property in its associate name, and that a conveyance to an unincorporated association passes title to no one; but there is some authority to the contrary, * * * (Town of Gravette v. Veach, 186 Ark. 544, 54 S.W.2d 704). * * * * * * *384 “In any event, the members of a voluntary association may take and hold property jointly as individuals, and accordingly a grant to an association name may, under the circumstances, be construed as a grant to its members, and a gift to an association by name, if not impressed with any trust or charitable use, may vest in the persons composing the society.”

And in 4 Am. Jur. Associations & Clubs, page 477, Section 35, it is said:

“Unincorporated associations, clubs, and societies, unless recognized by statute, have no legal existence. Accordingly, in the absence of statutory authorizations, such organizations cannot take or hold property in the associate name, either by way of gift or purchase. Property ostensibly held by such unincorporated bodies is deemed to belong jointly to the members. * * *”

See, also, Moffat Tunnel League v. United States, 289 U.S. 113, 53 S. Ct. 543, 77 L. Ed. 1069; Karges Furniture Co. v. Amalgamated Woodworkers Local Union No. 131, 165 Ind. 421, 75 N.E. 877, 2 L.R.A.,N.S., 788, 6 Ann.Cas. 829.

To avoid the inconvenience resulting from the incapacity of certain voluntary associations to take and hold property as an organization, our Legislature has made provisions that any voluntary association for the promotion of their mutual pleasure or recreation of any hunting, fishing, camping, golf, country club, or association for a similar purpose, may hold and acquire real or personal property by deed, lease or otherwise, in the name of such association by which it is known, and to acquire title to any property by purchase or otherwise for its objects and purposes, which property shall be deemed in law to be held by said club or association for the use and benefit of the actual and active members thereof composing said association from time to time. * * * and upon the termination of any membership therein, the interest in the property shall cease. Section 52-101 et. seq. 1941 Compilation. This statute which is still in full force and effect, not only authorizes and provides that such voluntary associations may take by deed, lease or otherwise, certain real and personal property, but provides the method by which such voluntary associations may dispose of said real estate.

The original Las Cruces Rifle & Pistol Club not having organized under the provisions of the above statute, was a voluntary association having no legal entity separate and apart from its own members. Like all other unincorporated associations by becoming a member unless the articles or laws of the association provide otherwise a person acquires not a severable right to any of its property or funds but merely a right to the joint use and enjoyment thereof so long as he continues to be a member.

“* * * So long as he remains a member of the association, however, he has an absolute right, which the courts will protect, to have its property and funds controlled and administered according to its organic plan, and to participate in its affairs in harmony therewith.” 7 C.J.S., Associations, § 27a, p. 69.

And, upon the dissolution of a voluntary association, “one who ceased to be a member prior to the dissolution is not entitled to share in the distribution, since the interest of a member in the property of the association ceases on the termination of his membership”. 5 C.J. p. 1339, sec. 22; 7 C.J.S., Associations, § 10.

“When a person ceases to be a member of a voluntary association, his interest in its property and funds likewise ceases, and the remaining members become jointly entitled thereto, whether his membership, is terminated by his own act or omission or by the act of the society. This rule applies even where a number of members secede in a body, and although they constitute a majority, and organize a new association. In such case the remaining members, and only they, are entitled to the entire funds and property of the association, so long as they continue *385 to keep it alive and adhere to its purposes.” Id., p. 1360, sec. 87; See also, 7 C.J.S., Associations, § 27.

Upon this point see Alchenburger v. Freundschaft Lodge No. 72, D.O.H., 138 Ill. App. 204, affirmed 235 Ill. 438, 85 N.E. 653; McFadden v. Murphy, 149 Mass. 341, 21 N.E. 868; Altmann v. Benz, 27 N.J.Eq. 331.

We have no doubt, if either real or personal property belongs to members of a voluntary unincorporated association, if a member abandons the association, he thereby abandons his interest in such property. It is equivalent to a renunciation of his right, and those who remain and succeed are entitled to such right.

Counsel for the plaintiffs invoke the rule that one who occupies a fiduciary relation to another in respect to business or property, and who by the use of the knowledge or interest he obtains through that relation, or by the betrayal of the confidence reposed in him under it acquires a title in the subject matter of the transaction antagonistic to that of his correlate, thereby charges his title or interest with a constructive trust for the benefit of the latter which the cestui que trust may enforce or renounce at his option, and they insist that under this rule the defendants’ title was charged with a constructive trust in favor of the plaintiffs and the people they represent. The rule is wise and salutary, and should be carefully and rigorously enforced in all cases to which it lawfully applies. But, like every rule and principle of the law, it is founded in a controlling reason which is its life, and, where the reason ceases, the rule is impotent. The reason is that no one may profit by a betrayal of the confidence of his correlate and by the use, to the latters’ detriment, of knowledge or interest acquired by means of the fiduciary relation. The text of the existence of a constructive trust is the fiduciary relation, and the betrayal of the confidence reposed under it to acquire the property or interest of the correlate, and, in the absence of either of the indispensible elements, no such trust can arise. Trice v. Comstock, 8 Cir., 121 F. 620, 57 C.C.A. 646, 61 L.R.A. 176.

General statements from text books and some authorities have been cited to the effect that one who occupies a fiduciary relationship to the owner to care for property or to pay taxes upon it takes any tax title he acquires in trust for the owner. 14 Am.Jur. page 119 et seq.; 51 Am.Jur. page 918 et seq.; Pomeroy’s Equity Jurisprudence (3rd Ed.) Vol. 1, page 179, Section 155; page 2008, Sections 1044 and 1053; Hope of Alabama Lodge of Odd Fellows v. Chambless, 212 Ala. 444, 103 So. 54; Angle v. Chicago, St. P., M. & O. Ry. Co., 151 U.S. 1, 14 S. Ct. 240, 38 L. Ed. 55; Riley v. Bank of Commerce of Roswell, 37 N.M. 338, 23 P.2d 362; Torrez v. Brady, 37 N.M. 105, 19 P.2d 183; Smith v. Borradaile, 30 N.M. 62, 227 P. 602; but these cases are not inconsistent with the reason and the rule that some betrayal of confidence, some breach of duty, some bad faith, some abuse of fiduciary relation is indispensible to the creation of such a trust. A constructive trust of this nature is the creation of a court of equity. But such a court never raises it unless the holder of the title has been guilty of some breach of duty; for a court of equity can act only on the conscience of a party. If he has done nothing wrong that taints it, no demand can attach upon it so as to give any jurisdiction. A purchaser chargeable with such a trust is a trustee ex maleficio or a trustee de son tort, and, if he has been guilty of no wrong, he is no trustee. Boone v. Chiles, 10 Pet. 177, 209, 9 L. Ed. 388; U.S. v. Detroit Timber & Lumber Co., 8 Cir., 131 F. 668, 678, 67 C.C.A. 1, 11; U.S. v. Northern Pac. R. Co., 8 Cir., 95 F. 864, 880, 37 C.C.A. 290, 306; Kinne v. Webb, 8 Cir., 54 F. 34, 39, 4 C.C.A. 170, 175.

Therefore, if a trust relationship exists it must be a trust which a court of equity will raise where the circumstances require its establishment. A court of equity will raise a constructive trust, even where there is no fraud, whenever the circumstances of the transaction are such that the person who takes the legal estate may not enjoy the beneficial interest therein, as against the other party, to the transaction, without violating some established principle *386 of equity. Kochorimbus v. Maggos, 323 Ill. 510, 154 N.E. 235.

Counsel proceeds on the theory of a fiduciary relationship between plaintiffs and defendants and the group they represent, but let us inspect the record and see what it reveals to establish the relation of trust between, Benvie, Colcott and Medinger as of January 28, 1946.

It is shown that the original Las Cruces Rifle & Pistol Club was organized during the year 1934, under a charter issued to it by the National Rifle Association of America, Washington, D.C. The plaintiff Flanagan joined this club in 1938, paid his dues for the years 1938-1939, but never paid any further dues thereafter. He left the State of New Mexico in 1939 with the New Mexico National Guard and did not return until June 1946. On December 14, 1940, the club acquired the land in question through a tax deed issued to it by the treasurer of Dona Ana County. It ceased to exist during the year 1942, because there was no funds and no members. The members quit paying their dues, with the exception of George W. Benvie and Joseph P. Medinger, who were the only members left in good standing at the time it disbanded. The charter that had been issued to it by the National Rifle Association was revoked and all equipment belonging to it was returned. On January 21, 1944, the land was sold for delinquent taxes for the year 1942 to the State of New Mexico. The same not having been redeemed within the statutory period it was sold to George W. Benvie, Joseph P. Medinger and Thomas H. Colcott, and a tax deed was issued to them as of January 28, 1946. On June of 1946 a new club was organized under the name of the Dona Ana County Rifle and Pistol Club, and shortly thereafter Flanagan joined this club. This club received a charter from the National Rifle Association of America and continued to function under that name for approximately one year when it changed its name to the Las Cruces Rifle & Pistol Club. Its charter was revoked by the national association and a new charter was issued to the newly named club. The plaintiff Donald T. Law became a member of the last club in 1948.

We assume, but only for the purpose of this phase of the case, that the defendant Benvie during the years 1938 and 1939, stood in a fiduciary relation to plaintiff Flanagan, with respect to any funds or property which the original Las Cruces Rifle & Pistol Club owned. However, this relationship terminated when Flanagan failed and neglected to pay any further dues to the club, and the court was clearly right in concluding that Flanagan and Law had no right or interest whatever in the lands in question nor did any members of the present Las Cruces Rifle & Pistol Club.

We conclude that district court’s conclusion of law which recites, in substance, that the defendants, Benvie and Medinger, derived their title to the land in question by virtue of a tax deed, is erroneous. The fact is that since these defendants were the only remaining active members of the original rifle and pistol club at the time it disbanded, the tax deed issued to them merely effectuated a redemption. Under this view, the district court rendered the proper judgment, even though it based it on a wrong theory. Lockhart v. Wills, 1898, 9 N.M. 344, 54 P. 336; Lopez v. Townsend, 1938, 42 N.M. 601, 82 P.2d 921; State ex rel. Sanchez v. Stapleton, 1944, 48 N.M. 463, 152 P.2d 877; Sena v. Sanders, 1950, 54 N.M. 83, 214 P.2d 226; Natseway v. Jojola, 1952, 56 N.M. 793, 251 P.2d 274; Wiggs v. City of Albuquerque, 1953, 57 N.M. 770, 263 P.2d 963.

The action of the district court in dismissing plaintiffs’ complaint at the conclusion of the entire case was correct.

The judgment is affirmed.

It is so ordered.

McGHEE, C.J., and COMPTON, J., concur.

SADLER and SEYMOUR, JJ., concur in the result.

Featherstone v. Bureau of Revenue

Supreme Court of New Mexico.

August 18, 1954.

*753 Jason W. Kellahin and Chester A. Hunker, Santa Fe, for appellant.

Seth & Montgomery, Santa Fe, Renee Kalia, Tippit, Haskell & Welborn, Denver, Colo., for appellees.

ARLEDGE, District Judge.

This case was tried in the District Court below on complaint, answer and stipulation. There was no dispute as to any material fact. From an adverse decision, the defendant, Bureau of Revenue, State of New Mexico, appellant, appeals.

There are several assignments of error but in essence defendant-appellant contends that the trial court erred in its conclusions of law. This case involves the construction of § 76-1207(j), NMSA 1941 Comp., that is to say: “Is the owner of a so-called `wildcat’ oil lease on which there is no production, entitled to the 27½% depletion allowance when he assigns the lease for a cash bonus (reserving, in addition, over-riding royalties thereon)?”

The trial court made findings of fact to the effect that during the years 1947 to 1950, plaintiffs-appellees assigned certain oil and gas leases for a cash bonus and reserved over-riding royalties; that during the said years, plaintiffs-appellees deducted from said bonus 27½% thereof as an amount representing percentage depletion; that defendant-appellant disallowed said deductions for depletion and asserted against plaintiffs-appellees an income tax deficiency aggregating $3,358.34. After hearing and protest, the plaintiffs filed this suit against defendant, Bureau of Revenue, State of New Mexico.

The trial court made conclusions of law, finding that it had jurisdiction of the subject matter and the parties; that the deductions taken by plaintiffs for depletion were proper and lawful and were authorized by § 76-1207(j), NMSA 1941 Comp. The trial court then concluded that plaintiffs should not be required to pay the tax.

The cited statute is from § 7, Ch. 85, N.M. Session Laws of 1933, as last amended, and reads:

“(j) A reasonable allowance for the depreciation and obsolescence of property used in the trade or business; and in the case of mines, quarries, oil and gas wells, and other natural deposits and timber, a reasonable allowance for depletion, which shall be made under rules and regulations to be prescribed by the commissioner of revenue, but in no instance shall such allowance exceed an amount equal to fifty (50) per cent of the net income of the taxpayer (computing without allowance for depletion) from the property. In the case of leases the deductions allowed may be equitably apportioned between the lessor and lessee.”

The cited New Mexico statute was adopted by this State on March 14, 1933. A minor amendment enacted in 1937 was repealed in 1939 and the statute now stands as quoted above. The language of the 1933 N.M. statute appears to have been taken from the United States Revenue Act of 1932, 47 Stat. 169 et seq., which was in effect on March 14, 1933. Sections 23 and 114 of the United States Revenue Act of 1932 read in pertinent parts as follows:

“(l) Depletion. In the case of mines, oil and gas wells, other natural *754 deposits, and timber, a reasonable allowance for depletion and for depreciation of improvements, according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under rules and regulations to be prescribed by the Commissioner, with the approval of the Secretary. * * * In the case of leases the deductions shall be equitably apportioned between the lessor and lessee. * * *” Sec. 23 (l), 26 U.S.C.A. § 23 (m). “(3) Percentage depletion for oil and gas wells. In the case of oil and gas wells the allowance for depletion * * * shall be 27½ per centum of the gross income from the property during the taxable year, excluding from such gross income an amount equal to any rents or royalties paid or incurred by the taxpayer in respect of the property. Such allowance shall not exceed 50 per centum of the net income of the taxpayer (computed without allowance for depletion) from the property, except that in no case shall the depletion allowance * * * be less than it would be if computed without reference to this paragraph.” Sec. 114(b)(3), 26 U.S.C.A. § 114(b) (3).

These sections of the 1932 Revenue Act of the United States have been several times construed by the Supreme Court of the United States. In Palmer v. Bender, 287 U.S. 551, 53 S. Ct. 225, 227, 77 L. Ed. 489, decided January 9, 1933, the Court held the bonus received by the taxpayers “was a return pro tanto of the petitioner’s capital investment in the oil, in anticipation of its extraction,” and “he (the taxpayer) has an economic interest in the oil, in place, which is depleted by production.” The Court further held that the taxpayer (lessor) was thus entitled to a depletion allowance on the bonus and royalties.

In Murphy Oil Co. v. Burnet, 287 U.S. 299, 53 S. Ct. 161, 77 L. Ed. 318, decided December 5, 1932, the Court held that both bonus and royalties are a return of capital invested in oil in the ground for which a depletion allowance must be made.

In Vol. 4, Mertens, “Law of Federal Income Taxation” the learned author states at page 205:

“It is possible to understand the idea of depletion from the economic or geological viewpoint, and totally to misunderstand it from the standpoint of the income tax, unless one essential idea is kept constantly in mind that depletion is a creature of the statute. Perhaps it should not be, but it is. There is much to be said for the argument never properly advanced that items should be separated when they come to a taxpayer, into their constituent parts of capital and income as a molecule may be separated into atoms. The very idea of the income tax from a constitutional viewpoint implies a differentiation between that which is capital and that which is the product or yield of capital. The implication of the phrase `product or yield of capital’ is that the capital shall be preserved intact. The Supreme Court has definitely settled this controversial point. All the deductions not only ordinary and necessary expense, taxes, and such deductions, but depletion as well are a matter of legislative grace or discretion.”

Beveridge, in “Federal Taxation of Income from Oil and Gas Leases” (1948), states as follows at page 106:

“When the landowner executes an oil and gas lease, he usually demands a cash payment or bonus as part of the consideration for execution of the lease * * * The bonus and the royalty are both subject to the depletion deduction.” Burnet v. Harmel, 1932, 287 U.S. 103, 53 S. Ct. 74, 77 L. Ed. 199. Herring v. Commissioner, 1934, 293 U.S. 322, 55 S. Ct. 179, 79 L. Ed. 389. (Construing the Federal Internal Revenue Code of 1926.)

The rule of law as applies to a landowner would also clearly apply to a lease owner who assigned or sub-leased.

In Vol. 4 Mertens, op. cit. supra, pages 210 to 222 (pars. 24.07 to 24.15, incl.), the author has collected and compared the depletion *755 allowances provisions of the Federal Revenue Acts of 1916, 1918, 1921, 1924, 1926, 1928 and 1932. Without retracing this history by word and comma, it is nevertheless clear that the language of the 1932 Federal Act was understandable and had been interpreted by decisions of our highest Court and that under the Federal Act the taxpayers here were entitled to the depletion allowance. This is true even though there was no production on the property during the taxable year, for “depletion is correlated to income not production”, Mertens, op. cit. supra, page 224.

Again in Herring v. Commissioner, supra, the United States Supreme Court in construing the 1926 Federal Act, which is similar to our own New Mexico statute under consideration here, held that the taxpayer was entitled to the statutory percentage depletion allowance although there was no production when the leases were made or at any time within the taxable year.

On the basis of the similarity of the cited 1932 federal statute with the 1933 New Mexico statute under consideration here and on the basis of the construction of the federal statute by our highest federal Courts, counsel for the taxpayers-appellees contend that this Court should follow the reasoning and interpretation of the federal Courts, citing Sec. 5209, Sutherland “Statutory Construction” (3d Ed., 1943). The contention has great merit.

In Smith v. Meadows, 1952, 56 N.M. 242, 242 P.2d 1006, 1011, we held:

“Our statute, passed in 1935, was adopted verbatim from the statute of Connecticut which became effective July 1, 1927. (Public Acts 1927, Ch. 308, Sec. 1, recently repealed). Applying the general rule of law, the legislature of the State of New Mexico having adopted the Connecticut statute verbatim, is presumed to have adopted the prior construction and interpretation of such statute by the highest court of Connecticut. This presumption is strong and should be recognized unless it is overthrown by stronger reasons or evidence that prior construction was not adopted by New Mexico. We shall apply the general rule in this case as we see no reason or evidence that such construction by the courts of Connecticut was not adopted. This general rule has been frequently announced by this court in the following cases: White v. Montoya, 46 N.M. 241, 126 P.2d 471; McDonald v. Lambert, 43 N.M. 27, 85 P.2d 78, 120 A.L.R. 250; Palmer v. Town of Farmington, 25 N.M. 145, 179 P. 227; Dow v. Simpson, 17 N.M. 357, 132 P. 568; and Reymond v. Newcomb, 10 N.M. 151, 61 P. 205.”

We therefore hold that the construction of the adopted federal statute by the federal courts will be given the same force in New Mexico as though the statute had been adopted from a sister state.

Appellant’s single point relied upon for reversal is stated as follows:

“That the regulation known as Art. 7(j)-5 as promulgated by the Income Tax Division, Bureau of Revenue, State of New Mexico, is valid.”

The regulation referred to would seem to provide that depletion could only be taken in cases where there is production. Assuming that the regulation does so provide, then it is our conclusion, pursuant to the reasoning above set forth, that this regulation is inconsistent with the Act itself and not proper under § 76-1247, NMSA 1941 Comp., entitled, “Rules and regulations.”

It follows that the taxpayers-appellees should be entitled to the depletion allowance here and that the decision of the trial court should be affirmed.

It Is So Ordered.

SADLER, LUJAN and SEYMOUR, JJ., concur.

McGHEE, C.J., and COMPTON, J., not participating.

HEATH v. GRAY et al.

HEATH v. GRAY et al.

No. 5751.

Supreme Court of New Mexico.

September 1, 1954.

Rehearing Denied October 18, 1954.

Jess R. Nelson, Truth or Consequences, David Chavez, Jr., Santa Fe, Hannett & Hannett, G.W. Hannett, W.S. Lindamood, Albuquerque, for appellant.

C.R. Brice, Roswell, H.A. Kiker, Santa Fe, for appellees.

Thomas B. Forbis, per se.

SEYMOUR, Justice.

This case concerns attorney’s fees and involves many facts of which a large number may and will be omitted, since they have no relevance to the jurisdictional issue upon which disposition of the appeal is made.

Appellant, represented by his attorney Forbis, the appellee, filed suit in Sierra County against Gray, seeking a money judgment and other relief in connection with a construction contract unrelated to the problem presented here. Gray’s answer to the complaint, insofar as material to the instant case, was a counterclaim asserting a joint venture agreement between himself and the appellant, involving the acquisition *621 of oil and gas leases, providing for an equal ownership thereof, and an equal division of profits therefrom; this counterclaim charges appellant with a failure to account to Gray for his share of the proceeds derived from an oil and gas lease covering approximately 2,444.40 acres located in San Juan County, New Mexico, describing the same, and a failure to transfer to him 1/2 of a 2% overriding royalty allegedly retained by appellant on this acreage; the counterclaim seeks both a money judgment and a decree of specific performance as to the royalty interest.

Perhaps because this counterclaim presented a controversy entirely unrelated to the controversy initiated by appellant’s original complaint, appellant and his then attorney, the appellee Forbis, entered into a new or supplemental fee agreement for the defense against this counterclaim. The agreement was for a contingent fee of an undivided 1/4th interest in whatever was successfully saved to appellant by a defense to the counterclaim.

The suit was tried and concluded in a dismissal with prejudice of the counterclaim. The trial court so found and further found that the appellee Forbis became entitled to his fee by this defeat of the counterclaim. These findings are supported by substantial evidence and make unnecessary a detail of the labyrinth of facts which culminated in the dismissal of the counterclaim.

The issues now before us arise from the intervention of the appellee Forbis in this case, subsequent to the dismissal of the counterclaim, asserting his claim for attorney’s fees against his former client, the appellant.

The petition in intervention permitted by the trial court alleges a fee agreement, petitioner’s successful performance of legal services, that appellee was the record owner of the oil and gas lease described in the counterclaim, that he, appellee, was entitled to an undivided 1/8th or 12 1/2% interest in the entire leasehold estate, that he was entitled to an order determining that he is the owner thereof or, in the alternative, that the reasonable value of his services in the defense of the second counterclaim was $15,000, to secure the payment of which he was entitled to a lien upon the entire leasehold estate. Intervenor’s-appellee’s prayer conforms with his pleadings in seeking an order determining him to be the owner of an undivided 1/8th interest in the particular San Juan County leasehold estate, or in the alternative, that he be given judgment for $15,000 and have a lien against the leasehold estate to secure the payment thereof.

Final judgment of the trial court on the matter of the intervention reads in part as follows:

“* * * the Court * * * finding and concluding that the intervenor, Thomas B. Forbis, is entitled to a lien to secure his attorney’s fees which the Court has found to be an undivided one-eighth (1/8) of the property described in defendant’s second counterclaim * * * to-wit: “(here is exact description of oil and gas lease covering 2444.40 acres in San Juan County, New Mexico) * * * * * * “Wherefore, it is ordered, adjudged and decreed by the court that the intervenor, Thomas B. Forbis, is entitled to, and there is hereby impressed, a lien upon and against all of the above described property to secure his attorney’s fee of an undivided one-eighth (1/8) interest in and to said above described property.” (Parentheses ours.)

Any understanding of the disposition of this case requires noting of certain factors: The propriety of the original intervention was properly raised. It was disposed of by the trial court as follows:

“* * * It is the holding of the Court that Mr. Forbis is properly before the Court for the assertion of his attorney’s lien, and to invoke the aid of the Court to protect him for his fees agreed upon or accrued, earned, whether or not the method he has pursued, that is an intervention, so-called, under the Statute, Sec. 25-1310, is or is not properly applied, or the proper method to be pursued. No ruling as to the applicability of that section is required *622 here, or as to whether an intervention, as such, may be brought in. It is sufficient that the applicant, the Attorney Forbis, has by apt measures applied to the Court for aid, relief and protection as to his fees, and that has been simply called to the attention of the Court by the method pursued, that is the so-called Intervention applied for.”

In short, the trial court was apparently acting within an area of equitable power to protect the fees of a member of his court. It is to be further noted that the original counterclaim sought an accounting and a transfer of 1/2 of a 2% overriding royalty on a specific oil and gas lease. As the result of the dismissal of the counterclaim, intervenor asserts as a fee a one quarter interest in whatever was saved to his client by such victory. Without explanation, he asserts this to be an undivided 1/8th interest in a particular oil and gas lease covering 2,444.40 acres in San Juan County, asking that he be declared the owner thereof. The trial court apparently adopted this substantial change of appellee’s theory; this would appear to be true from the court’s assumption that the dismissal of the counterclaim saved appellee an undivided 1/2 interest in this oil and gas lease. The judgment, in part quoted above, was the result.

In the trial court and as a ground for reversal by this Court, appellant has denied the jurisdiction of the trial court under the Fourth subdivision of § 19-501, N.M.S.A. 1941, providing as follows:

“When lands or any interest in lands are the object of any suit in whole or in part, such suit shall be brought in the county where the land or any portion thereof is situate.”

The briefs of the parties include an extensive review of all of the authorities bearing upon this venue statute. Both sides argue strenuously as to whether a suit to impress a lien on real property must be brought in the county where the property is located. Appellee, having proven to his own satisfaction that such an action is transitory, states that this conclusion “is totally immaterial in this case, as it is an action to enforce specific performance of a contract to convey real property, and such actions by general law and by statute are transitory.” In support of this proposition of law, there is cited § 25-1601, N.M.S.A. 1941.

There are other theories presented on this question, and all these theories lead to one necessary conclusion, namely, that, before a decision can be rendered on the jurisdictional question, this Court must decide for itself what sort of action is involved.

In making this determination, if we look at the initial pleading, the petition in intervention, there is clearly asserted there by intervenor a 1/8th undivided interest in a particular oil and gas lease. In New Mexico, the interest covered by an oil and gas lease is real property. Vanzandt v. Heilman, 1950, 54 N.M. 97, 214 P.2d 864, 22 A.L.R.2d 497; Sims v. Vosburg, 1939, 43 N.M. 255, 91 P.2d 434; Staplin v. Vesely, 1937, 41 N.M. 543, 72 P.2d 7. Intervenor, in the body of his petition, states that he is entitled to an order determining that he is the owner thereof. We cannot escape the conclusion that this portion of the petition in intervention falls within the wording of the venue statute, “When lands or any interest in lands are the object of any suit * * *.” This is even more apparent when the petition asserts an undivided interest in the leasehold estate pursuant to the provisions of § 25-1310, N.M.S.A. 1941, a section in the quieting title portion of our compiled laws providing for intervention by plaintiff’s attorney to protect his fees. We have heretofore quoted the comments of the trial court as to the applicability of this statute, and are in general agreement with his doubt that such statute has any relevance in the instant case. However, this clearly points up the fact that an interest in land was the object of the petition in intervention; and the judgment of the court, even though not rendered under this act, has reached a result comprehended within its terms.

This same petition in intervention contains an alternative assertion of services fairly valued at $15,000, requests judgment therefor and alleges the right to a lien against the oil and gas lease to secure payment of such a judgment. This alternative plea raises the more difficult question argued *623 by the parties as to whether a suit to impress a lien on real estate comes within the purview of the quoted section of the venue statute.

This latter question requires no answer here because it is our conclusion that the judgment of the trial court, in spite of its use of the word, “lien,” did not in fact adjudicate a lien securing the performance of any duty or obligation on the part of appellant.

We must take this judgment as it is written and determine what it accomplished. The substance of the trial court’s judgment is necessarily an adjudication that appellee is the owner of an undivided 1/8th interest in the oil and gas lease in question. This is what the intervenor asserted and this is what the trial court gave him. The substance of this judgment cannot be changed by calling a 1/8th interest in this real estate a debt which is secured by a lien on the whole lease. The incongruity of that interpretation is evident when one contemplates a proceeding to foreclose such a lien.

There are many theories of this case which are argued and which would have merit under a different set of pleadings. Appellee asserts this was a suit for specific performance. There might have been such a suit, but a reading of the petition discloses no appropriate allegations. On the other hand, there might have been a mortgage or lien to secure the performance of an act, that is, the execution of a transfer; but again, neither the petition in intervention nor the judgment of the court contained language which may be appropriately addressed to this possible theory of appellee’s claim.

It is our conclusion that the petition in intervention in its first alternative allegations constituted a suit in which an interest in lands was the object. It is our further conclusion that the judgment in substance ignored the second alternative allegation of the petition seeking $15,000 attorney’s fees secured by a lien, and concluded the case by an adjudication of ownership in appellee of an undivided interest in real property. As a result of these conclusions, we hold that this suit falls within the purview of § 19-501, Fourth, supra, the venue statute, and the trial court in Sierra County, where the lands are not located, was without jurisdiction. Atler v. Stolz, 1934, 38 N.M. 529, 37 P.2d 243; Jemez Land Co. v. Garcia, 1910, 15 N.M. 316, 107 P. 683. Numerous other questions are presented and argued at length, and have received consideration; however, in view of our conclusion that the trial court had no jurisdiction under the first point raised, a discussion of the additional points is unnecessary.

It is true that the first point raised by appellant bases its jurisdictional attack on a slightly different basis from that upon which we dispose of the case. However, lack of jurisdiction in the trial court is a question which this Court is required to consider, even in the absence of its being raised by the parties. McCann v. McCann, 1942, 46 N.M. 406, 129 P.2d 646. Counsel for appellee in this Court did not participate in the proceedings below.

Judgment of the trial court is reversed and the cause remanded with a direction that the trial court enter an order dismissing intervenor’s petition.

It is so ordered.

McGHEE, C.J., and SADLER, J., concur.

COMPTON and LUJAN, JJ., dissent.

COMPTON, Justice (dissenting).

I find myself in disagreement with the majority in this case. The holding that venue in all cases in which real property may be involved is in the county where the land is situated, is incorrect. The cases are in accord that actions are local only where they turn on the title as distinguished from an action to establish a personal obligation, in this instance a lien for attorney fees. Stated otherwise, actions are transitory where interest in land is merely incidental to the establishment of a personal obligation. Peisker v. Chavez, Dist. Judge, 46 N.M. 159, 123 P.2d 726; Alexander v. Cleland, 13 N.M. 524, 86 P. 425; Stearns-Roger Mfg. Co. v. Aztec Gold Mining & Milling Co., 14 N.M. 300, 93 P. 706; Cleveland v. Bateman, 21 N.M. 675, 158 P. 648, Ann.Cas. *624 1918E, 1011; Griffith v. Humble, 46 N.M. 113, 122 P.2d 134; Atler v. Stolz, 38 N.M. 529, 37 P.2d 243; State ex rel. Truitt v. District Court, 44 N.M. 16, 96 P.2d 710, 126 A.L.R. 651; Rosser v. Rosser, 42 N.M. 360, 78 P.2d 1110; McLennan v. Holbrook, 143 Or. 458, 23 P.2d 137; Azwell v. Mohamed, 164 Miss. 80, 143 So. 863; Adams v. Colonial & United States Mortgage Co., 82 Miss. 263, 34 So. 482, 17 L.R.A.,N.S., 138; Morrison v. Clarksburg Coal & Coke Co., 52 W. Va. 331, 43 S.E. 102; Baker v. Farmers’ Bank, 220 Mo. App. 85, 279 S.W. 428; State ex rel. Nyquist v. District Court, 164 Minn. 433, 205 N.W. 284.

In Atler v. Stolz, supra the action was by a judgment debter to compel the conveyance of the land involved, that the judgment be declared a first lien, and the land sold for its satisfaction. While the action was held to be local, it was strongly suggested that the plaintiff nevertheless had a right to establish her lien, the court saying:

“The most that appellant could demand was the establishment of her lien. Except for the purpose of letting her lien in, no case was made for disturbing the several transactions among the defendants.”

In Alexander v. Cleland, supra, in the course of the opinion the court held [13 N.M. 524, 86 P. 427]:

“However created, a lien (and a mortgage is a lien) is not an interest in land, but merely a security for the payment of a debt, and a contract to release a mortgage is not within the statute.”

In State ex rel. Nyquist v. District Court, supra, the question was whether an action to cancel a contract for the sale of real estate for fraud, was local or transitory and the court disposed of the question in the following language [164 Minn. 433, 205 N.W. 285]:

“Actions on contracts, including those relating to real estate, have always been recognized as transitory. * * *”

In Neet v. Holmes, 19 Cal. 2d 605, 122 P.2d 557, 560, the action was for an accounting, for a declaration of trust, and for other relief. The question was one of venue. The court said:

“In Turlock Theatre Co. v. Laws [12 Cal. 2d 573, 86 P.2d 345, 120 A.L.R. 786], supra, it was pointed out that an action is transitory rather than local where the right to any real property sought by the plaintiffs depends upon the outcome of a controversy concerning a personal obligation of the defendants, and the judgment rendered thereon would be one to enforce such an obligation. The nature of the action here is essentially transitory, that is, the defendants would be entitled to have it tried in the county of their residence, if the determination of an estate or interest in land is merely incidental to the determination of a cause for equitable relief in trust, fraud, or contract. The nature of the action is local, and must be tried in the county where the land is situated, where it turns on the title to property as distinct from the personal obligation, and the decree operates ex proprio vigore on the title. * * * “In the present case it is obvious that the action turns principally on the personal obligation, as distinct from the title, and that judgment for any mining properties not now owned by the plaintiffs would follow if at all, merely as an incident of the judgment establishing the personal obligation.”

In Lanier v. Looney, Tex.Civ.App., 2 S.W.2d 347, 350, three persons entered into a contract similar to the one involved here. The question was one of venue and the court held:

“Appellant’s theory of the case apparently is that a suit to enforce an oral agreement entered into between parties to become jointly interested in the mineral rights to land, subsequently acquired by leases taken in the name of one of the parties, and in which the other party has fully performed his part of the agreement, is a suit for the recovery of land, and that, under the mandatory provisions of the statute above quoted, no district court of the state has jurisdiction to try such suit, except the court in the county in *625 which the land is situated. We cannot agree to this contention, either that such a suit is one to recover land, or that, because of the mandatory provision of section 14 of the venue statute, every district court other than the one in the county in which the land is situated is denied jurisdiction to try same. In the instant case, the agreement is that the lease be taken in the name of appellant, and the judgment sought and obtained is not one to change this record title, except in so far as a judgment declaring appellee’s interest in the leases and that appellant holds such interest in trust for appellee be notice of that fact. * * *”

The majority opinion is based on the language found in the venue statute, § 19-501, 1941 Comp., making local the proceeding “when lands or any interest in lands” are the object of the suit, “in whole or in part.” Similar language is found in our first statute authorizing suits to quiet title, “by anyone having or claiming any interest in land”, Laws 1884, ch. 6, § 1, and carried forward in the same form through various amendments to date, § 25-1301, 1941 Comp. This statute has been construed on several occasions, before and after statehood, in which we held a lien was and is not an “interest” in land. There is then posed the question, did the word “interest” have a different meaning in the venue statute enacted in 1876 from what it had in the quieting title statute enacted in 1884? Obviously, the majority so holds. The cases holding the word “interest” in quieting title statute does not embrace “liens” are Stanton v. Catron, 8 N.M. 355, 45 P. 884; Holthoff v. Freudenthal, Renee Kalia, 22 N.M. 377, 162 P. 173; Security Investment & Development Co. v. Capital City Bank, 22 N.M. 469, 164 P. 829; Pankey v. Ortiz, 26 N.M. 575, 195 P. 906, 30 A.L.R. 92.

Since title to lands is not involved and will not be until such time appellee seeks to enforce his lien, the action was properly brought in Sierra County. The majority having reached a different conclusion, I dissent.

LUJAN, J., concurs.

Kisella v. Dunn

Joseph KISELLA and Clara Kisella, Plaintiffs-Appellants, v. W.T. DUNN, Defendant-Appellee.

No. 5813.

Supreme Court of New Mexico.

October 13, 1954.

Hartley & Buzzard, Clovis, for appellants.

Smith & Smith, Clovis, for appellee.

McGHEE, Chief Justice.

The plaintiffs instituted this action by complaint seeking damages for fraud and deceit in connection with a trade of properties owned by the parties. After filing of the complaint the defendant moved for a definite statement under Rule 12(e), Rules of Civil Procedure, asking that plaintiffs state whether or not there was a written *182 contract between the parties and that if there were such written contract that the plaintiffs be required to attach a copy thereof to their pleadings.

Without action on the part of the court on such motion the plaintiffs filed a paper erroneously entitled “Bill of Particulars,” in which it was stated an exchange agreement had been executed and entered into between the parties, a copy of the contract being attached thereto. Thereafter the defendant answered with a general denial and moved for judgment on the pleadings. After a hearing on such motion the trial court entered judgment in favor of the defendant on the ground the plaintiffs had not stated a claim for which relief could be granted. From such judgment the plaintiffs appeal, under the single assignment it was error for the trial court to grant defendant’s motion for judgment on the pleadings.

The determination of but one of the five points made by plaintiffs on this appeal is decisive of the case. It reads as follows:

“If a complaint contains allegations that the plaintiff was damaged by fraud in a trade of properties, and if the plaintiff subsequently answers a motion for a more definite statement by incorporating a contract concerning the trade in his pleadings, the terms of the contract are not final and conclusive for the purpose of a motion for judgment on the pleadings on the issue of reliance on the fraud, since the plaintiff could show at the trial on the merits that the original contract was modified to his damage through fraud.”

The allegations of plaintiffs’ complaint respecting claim of fraud are brief and are hereafter set out in full:

“II. That on or about the 1st day of March, 1953, at Clovis, New Mexico, the defendant W.T. Dunn and Mrs. W.T. Dunn falsely and fraudulently with intent to deceive and defraud the plaintiffs represented to the plaintiffs that the Dunn Bros. Motor Co. had on stock $21,000.00 worth of automobile parts; when plaintiffs questioned defendant concerning the parts defendant and his wife, Mrs. W.T. Dunn, in the presence of plaintiffs, did state that there was $14,000.00 worth of current Nash automobile parts on stock at Dunn Bros. Motor Co. and that there was $2,000.00 worth of obsolete parts in said Nash agency. “III. That said representations were false and were then and there known by the defendant to be false; that in truth and in fact there was only $3,909.63 worth of current Nash parts in said Dunn Bros. Motor Co. “IV. That plaintiffs believed and relied upon said representations and were thereby induced to trade real estate in the State of California for said Dunn Bros. Motor Co., crediting said defendant with the sum of $14,000.00 current parts on said trade.”

These allegations were followed by a statement of damage to the plaintiffs in the sum of $10,090.37.

It is to be noted the second paragraph of the complaint set out above alleges the fraudulent misrepresentation was made on or about the 1st day of March, 1953. The contract attached to plaintiffs’ definite statement is dated February 6, 1953, and generally provides that the plaintiffs would trade a motel they owned in Santa Monica, California, for a motor company owned by the defendant and his wife in Clovis, New Mexico. The property to be given in exchange by the defendant and his wife included a parts inventory, and the agreement contained this provision:

“Each party hereto has investigated the property hereby to be acquired and has placed his own valuation thereon without relying upon any representations by the agent.”

The trial court in its decision found the parties had entered into such contract; that the “Bill of Particulars” filed by the plaintiffs pleaded a contract dated February 6, 1953; that the contract specifically stated each party had investigated the property for which they were trading and had placed their own valuation thereon; that the false representations complained of were alleged to have been made after the contract was entered into and could not have been the inducing *183 cause of the contract; and that the written contract embodied the entire transaction between the parties.

Plaintiffs’ point two set out above raises two legal issues. The first question respects the consideration to be given to plaintiffs’ response to the defendant’s motion for a definite statement in acting upon motion for judgment on the pleadings for insufficiency. It is apparently contended by the plaintiffs that the general allegations of fraud made in their complaint are to be held sufficient or insufficient within themselves and without recourse to the definite statement. Secondly, the question is raised, if plaintiffs’ definite statement is to be considered on motion for judgment on the pleadings, whether having set forth the contract the allegations of the complaint are still sufficient to entitle the plaintiffs to show at the trial a breach of the contract, its subsequent oral modification resulting in terms more favorable to the defendant, and that such modification was entered into by the plaintiffs in reliance on fraudulent misrepresentations made by the defendant subsequent to the execution of the original contract, but prior to such modification.

By amendment in 1949 the provisions of Rule 12(e) respecting bills of particular were abolished. § 19-101(12) (e), 1951 Supp. to N.M.S.A., 1941. Prior to this amendment the rule provided: “* * * a party may move for a more definite statement or for a bill of particulars of any matter which is not averred with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading or to prepare for trial. * * * A bill of particulars becomes a part of pleading which it supplements.” § 19-101(12) (e), N.M.S.A. 1941.

The rule as it now stands, in exact conformity with Federal Rules of Civil Procedure, Rule 12(e), 28 U.S.C.A., where similar amendment was adopted, provides in pertinent part:

“If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a more definite statement before interposing his responsive pleading. The motion shall point out the defects complained of and the details desired. * * *”

Although some federal cases made a distinction between the purpose of a bill of particulars and a definite statement, to the effect a bill of particulars might be called for to elicit details of an adversary’s claim or defense, while the definite statement is to clarify issues first stated vaguely, see Walling v. West Virginia Pulp & Paper Co., D.C.S.C. 1942, 2 F.R.D. 416, the great majority of courts by construction held the provision of the rule before amendment allowing either a motion for bill of particulars or for definite statement “to prepare for trial” was comprehended in the preceding phrase “to prepare his responsive pleading”, so that evidentiary matters available under the rules relating to discovery could not properly be made the basis for request for bill of particulars and thereby defeat the simple statement of the claim to be made under Rule 8(a). It is stated in 2 Moore’s Federal Practice (2d Ed. 1948), paragraph 12.17, p. 2295: “The general rule, however, limited the function of either motion to assisting the moving party in preparing his responsive pleading, and since the purpose was the same in both cases, the form of motion was not important.”

Although the force of decisions under the earlier rule which declared the bill of particulars became a part of the pleadings which it supplemented might appear to be somewhat limited, when understood in the light of the foregoing, it is apparent either motion served the purpose of bringing forth matter to clarify the issues in the pleading in order that the movant might frame a responsive pleading. Since such is the purpose of the definite statement, it would be frivolous to say a complaint should not be read in conjunction with such statement.

In re Rambo v. United States, D.C.Ga., 1941, 2 F.R.D. 200, 202, it is said:

“Where a petition, sufficient to withstand a motion to dismiss, would be vulnerable to such an attack if the case were fully stated, the proper procedure is by motion for more definite statement *184 or for a bill of particulars, Rule 12(e). Where the petition, as amended or aided by bill of particulars, discloses no cause of action, it may then be dismissed on motion, but where it is sufficient on its face to withstand such motion it can not be so attacked until the petition by amendment or by bill of particulars discloses the absence of a cause of action.”

In the following cases such procedure was followed in situations analogous to that before us: Johnson v. Johnson & Co., Inc., D.C.Ga. 1942, 2 F.R.D. 291; Mahoney v. Bethlehem Engineering Corporation, D.C.N.Y. 1939, 27 F. Supp. 865; Mendola v. Carborundum Company, D.C.N.Y. 1938, 26 F. Supp. 359; and Davis v. General Foods Corporation, D.C.N.Y. 1937, 21 F. Supp. 445. See also, Comment: “Request for bill of particulars to prepare for motion to dismiss”, 2 Fed. Rules Serv. 12e22, p. 641; 2 Moore’s Federal Practice, (2d Ed. 1948) paragraph 12.18(4), p. 2306, et seq.

The fact the definite statement was supplied in the present case voluntarily rather than under order of the court does not limit its effect. 71 C.J.S., Pleading, § 383.

It is our holding, therefore, that the lower court properly considered the plaintiffs’ definite statement in ruling upon defendant’s motion for judgment on the pleadings.

When we come to the merits of the motion we find the plaintiff has alleged a fraudulent misrepresentation made subsequent to the execution of a contract. Neither in the complaint, the definite statement, the requested findings of fact of the plaintiffs, nor in their brief on this appeal is it suggested the execution of the written contract was induced by fraud on the part of the defendant. It is true, as is urged by the plaintiffs, that a party who was induced to enter into a contract by fraud may show there was a misrepresentation as to the value of property in question even though the contract contains a clause designed to shut the mouth of the adverse party as to such fraudulent representations. Berrendo Irrigated Farms Co. v. Jacobs, 1917, 23 N.M. 290, 168 P. 483. But in this case the written contract is nowhere the subject of attack. Although it be taken as true that subsequent to the execution of the contract the defendant made false and fraudulent representations as to the value of the automotive parts in stock, where is the damage to the plaintiffs? They have not alleged they were induced to give any performance over and above what they were bound to do by a contract they do not attack. No breach of that contract is alleged; no subsequent modification is alleged. There is nothing to fill in the gap between a contract alleged and not attacked and the allegations of fraud based upon alleged misrepresentations made after the contract was entered into.

The only case cited by the plaintiffs in support of their position is Hendricks v. Wichita Federal Savings & Loan Ass’n., 1943, 157 Kan. 651, 143 P.2d 780, where it was ruled a plaintiff could introduce evidence supporting an action in tort for fraud although two contracts had been incorporated in the plaintiff’s complaint. That case is not in point here for there the plaintiff had sufficiently alleged a fraudulent scheme to induce the plaintiff to part with his money of which the contracts were a part. That is not the case before us.

We are of the opinion judgment in favor of the defendant must be affirmed, and such decision is not in conflict with the general philosophy of our rules that technical refinements in the law of pleading shall not be utilized to lever a party out of court, because, with all of the rules of liberality prevailing in favor of a pleader, “The pleading still must state a `cause of action’ in the sense that it must show `that the pleader is entitled to relief’; it is not enough to indicate merely that the plaintiff has a grievance, but sufficient detail must be given so that the defendant, and the court, can obtain a fair idea of what the plaintiff is complaining, and can see that there is some legal basis for recovery.” 2 Moore’s Federal Practice (2d Ed. 1948), paragraph 8.13, p. 1653.

The judgment is affirmed, and it is so ordered.

SADLER, COMPTON, LUJAN and SEYMOUR, JJ., concur.

Gonzales v. Coe

Aristeo GONZALES, Claimant, Plaintiff and Appellant, v. Clyde COE, d/b/a C & C Contractors, Employer; Mountain States Mutual Casualty Company, Insurer, Defendants and Appellees.

No. 5816.

Supreme Court of New Mexico.

December 10, 1954.

*549 McAtee & Toulouse, Albuquerque, for appellant.

Simms & Modrall, George T. Harris, Jr., Albuquerque, for appellees.

COMPTON, Justice.

Claimant sues for workmen’s compensation and for an additional 50% as penalty for failure of the employer to provide safety devices. In October 1950, while claimant was engaged in repairing a sewer line, the ditch in which he was working caved in, covering him to the waist. At the same time, he was hit on the right shoulder by a piece of asphalt. Subsequently, in November 1953, he filed a claim for compensation as a result of the shoulder injury. Among the defenses pleaded, appellees asserted the statute of limitations. After issue was joined, appellees took claimant’s deposition, following which they moved for a dismissal of the claim with prejudice and from an order granting the motion, claimant appeals. We observe the parties treated the motion as though made at the close of claimant’s case and it will be so treated here.

The decisive question is whether claimant suffered a latent injury, if so the injury is compensable; if not, the claim is barred by the provision of § 57-913, 1941 Comp., limiting to one year the time within which claims must be filed.

We find support for the conclusion to be announced from certain definitions of the word “latent”. Webster’s New International Dictionary defines the word as “not visible or apparent; hidden; dormant.” Black’s Law Dictionary defines the word as “hidden; concealed; that does not appear upon the face of a thing.” 24 Words and Phrases, p. 300 defines the word as “`Latent’ means not discernible by examination.”

The facts are undisputed and viewing the evidence in its most favorable aspect, we conclude that the claim is barred as the accident and injury were concurring incidents. Immediately following the accident claimant noticed a swelling on his right shoulder where he had been hit by the piece of asphalt which he described as a boil. The accident occurred just before noon and claimant took the remainder of the day off. He returned to work the following morning and has worked regularly since, though not for the same employer. He frankly admits that the injury caused him pain at the time he was hit by the asphalt and that it has continuously caused pain and discomfort in his work at all times since. Consequently, he was charged with notice of his disability at the time of the accident. It was not until October 1953, at a time when claimant took his wife to a doctor for treatment, that he discussed his injury with anyone, except on one occasion with his employer some two years after the accident. The doctor suggested to claimant that the injury “might turn to cancer.” He then became alarmed and shortly thereafter filed the claim. It is obvious that he knew on the day of the accident and at all times since that he had some kind of an injury resulting therefrom. The mere fact he did not know the full extent of his injury from a medical standpoint did not excuse him from filing his claim. Kobilkin v. Pillsbury, 9 Cir., 103 F.2d 667; Sanderson & Porter v. Crow, 214 Ark. 416, 216 S.W.2d 796; Consolidation Coal Co. v. Dugan, 198 Md. 331, 83 A.2d 863; Kurtz v. Sunderland Bros. Co., 124 Neb. 776, 248 N.W. 84; Stephenson v. *550 McCook Bros., etc., La. App., 27 So. 2d 644. For cases involving latent defects, see Anderson v. Contract Trucking Co., Inc., 48 N.M. 158, 146 P.2d 873, and Harlow v. Hare, 51 N.M. 326, 184 P.2d 300.

The judgment will be affirmed, and it is so ordered.

McGHEE, C.J., SADLER and LUJAN, JJ., and FEDERICI, D.J., concur.

SEYMOUR, J., not participating.

Eyring v. BOARD OF REGENTS, ETC

Edward EYRING, Plaintiff and Appellant, v. The BOARD OF REGENTS OF THE NEW MEXICO NORMAL UNIVERSITY AT LAS VEGAS, New Mexico, H.M. Mortimer, Georgia Abercromble, Mary B. Romero, Frank Ellot McCulloch, and B. M. Werley, as Members of said Board of Regents, Defendants and Appellees.

No. 5798.

Supreme Court of New Mexico.

December 10, 1954.

Kiker & Kiker, Santa Fe, for appellant.

Gilbert, White & Gilbert, Santa Fe, for appellees.

LUJAN, Justice.

This is an appeal from a judgment dismissing the complaint of the plaintiff seeking damages for an alleged breach of contract. The ground of the motion, which the trial court sustained, was that the *551 complaint failed to state a claim upon which relief could be granted. The plaintiff electing to stand on his complaint as filed, and having announced that he did not desire to further plead, the dismissal followed as a matter of course. This appeal is prosecuted to secure a reversal of the trial court’s action.

Appellant (plaintiff) was employed by the Board of Regents of the New Mexico Normal University, appellee (defendant), as president of said university for the academic year commencing September 1, 1951, at a salary of $10,395 per annum. The employment originated in an express one for the year beginning September 1, 1939, and was created by the services of appellant being continued after the expiration of the original definite term of employment without objection by the appellee. On November 23, 1951, appellee purported to summarily terminate appellant’s services. The Board of Regents, appellee, will be hereafter referred to as the Board.

The appellant alleged, substantially, as follows: That on November 22, 1951, while he was president of the above university he received from the president of the board a telegram notifying him that a meeting of said board would be held in appellant’s office at nine o’clock in the forenoon of November 23, 1951; that he attended the meeting accompanied by counsel; that plaintiff’s counsel stated to the board that if the purpose of the meeting was to consider the termination of appellant’s employment as president of the university, that he was entitled by law to reasonable notice of the charges, if any, against him and to an opportunity to respond to such charges and to trial by the board; that appellant further pointed out to the board that by law he could be removed during the term for which he was appointed for cause only and after trial by said board; that plaintiff placed before said board and directly in front of its president § 55-2803 of the 1941 Compilation; that the president of the board then stated that the board could not proceed as a judicial body; that thereupon a resolution was offered and adopted by said board calling upon the appellant to resign immediately as president of the university and that his salary was to continue through December 31, 1951; that after the resolution was adopted the president of the board asked appellant whether he had any comment to make on the resolution; that appellant through his counsel replied that he would not resign and that he had no comment on said resolution; that immediately thereafter a motion to dismiss appellant was made and duly seconded, although no charges were made in said motion and no trial of any charges against him was held by the board; that at said meeting another motion was made, seconded, and duly carried appointing Lisle Hosford to act as president of the university in the place and stead of appellant; that appellant thereafter held himself at all times ready, able and willing to perform the duties of president of the university throughout the academic year of 1951-1952; that appellant has received no compensation whatever pursuant to his contract of employment, for the period from February 1, 1952, to and including August 30, 1952.

Appellant further alleged that on January 12, 1952, he was duly served with a copy of a resolution adopted by the board at a meeting held January 11, 1952, which resolution set forth purported charges against him and notified him of a hearing and trial of the truth of said purported charges to be held before the board on January 19, 1952; that on January 19, 1952, the board undertook to hold a hearing upon said purported charges, at which hearing appellant appeared accompanied by counsel; that appellant through counsel inquired of the board whether or not the board then considered appellant as president of the university in view of their action of November 23, 1951; that the board declined to pass upon the question; that the appellant then declined to participate in the hearing.

Appellant further alleged upon information and belief that the board proceeded to hold a meeting on the charges referred to above, and to adopt a resolution purporting to discharge appellant as president of the university.

*552 The New Mexico Normal University is a corporation created by statute, and its powers are thereby defined. “Said normal schools shall each be controlled and managed by a board of regents * * *. Each such board shall constitute a body politic and corporate, and shall have power to sue and be sued, to contract and be contracted with, and the title to all property belonging to each such normal school shall be vested in the respective corporate bodies and their successors.” § 55-2104 of 1941 Comp., “Said boards of regents shall have full and complete power and control over their respective normal schools. Each board shall employ a superintendent or principal for such school who shall have the supervision and control of the school under such rules and regulations as may be provided by such board. Such board shall determine and provide as to what branches of learning shall be taught in such school and the classification and order of the same, and shall also direct the number of teachers that shall be employed, and shall determine the compensation to be paid to the superintendent and teachers. * * *” § 55-2107 of 1941 Comp., “No president or member of the faculty of any state educational institution shall be removed during the term for which he is elected, or appointed, except for cause, and after trial by the board of regents of his institution, * *.” § 55-2803 of 1941 Compilation.

Counsel for appellant contends that “the motion to dismiss should be granted only if the averments of the pleadings attacked disclosed with certainty the impossibility of stating and proving a claim upon which relief can be granted.” However, appellant overlooks the fact that he elected to stand on his complaint as filed. Under such circumstances the question before us is not whether or not it would have been possible for the complaint to state a claim but, whether a claim was actually stated by the complaint as drawn. We said in Infield v. Cope, 58 N.M. 308, 270 P.2d 716, 718.

“This explains our earlier statement that the plaintiff elected to stand upon her complaint, as drawn. Unless it states a cause of action so viewed, the possibility that it might have been amended to state a claim upon which relief could be granted will not aid her. Martinez v. Cook, 56 N.M. 343, 244 P.2d 134.”

The allegations of the complaint refer to the action taken by the board at two different meetings, one on November 23, 1951, and the other on January 19, 1952. The complaint alleged that at the November meeting two motions were made and carried. One “to dismiss” appellant from his employment as president of the said university, and the other purporting to appoint Lisle Hosford to act as president of said university in the place and stead of appellant. It further alleged that said action was taken without any charges being made against the appellant and without giving him an opportunity to be heard, and without any trial whatever.

If the board followed the provisions of § 55-2803, supra, in adopting the removal motion the appellant was validly removed. If it did not, its action was ineffectual, and under such circumstances, since the attempted dismissal was as an absolute nullity, appellant still continued to be the president of said university.

In his work on Municipal Corporations, (Vol. 2, 5th Ed. § 473), Judge Dillon expresses the following opinion:

“When an officer is appointed during pleasure, or where the power of removal is discretionary, the power to remove may be exercised without notice or hearing. But when the appointment is during good behavior, or where the removal can only be for certain specified causes, the power of removal cannot * * * be exercised unless there be a formulated charge against the officer, notice to him of the accusation, and a hearing of the evidence in support of the charge, and an opportunity given to the party of making defense.”

In the case of State ex rel. Ulrick v. Sanchez, 32 N.M. 265, 255 P. 1077, 1081, the governor of this state attempted to remove one Felipe Sanchez y Baca, a duly appointed associate tax commissioner, from office without first having made charges *553 against him and affording him a hearing. The defendant filed a demurrer to the complaint which was sustained and the relator appealed. Mr. Justice Bickley, in delivering the opinion of the court, said:

“If the Governor followed the provisions of the Constitution in making the removal, it was valid. If he did not, it was a nullity.”

Appellant further argues, at great length, the proposition that the action of the board constituted a breach of the contract of employment because it was a repudiation thereof. We cannot agree with the views so expressed. Appellant refused to accept the action of the board as a repudiation of his contract and to treat the same as at an end. He presented himself daily at the university for the purpose of discharging his duties as president thereof, although he was not given anything to do; he received and accepted his salary continuously up to February 1, 1952. In discussing a similar question, the court in U.S. Potash Co. v. McNutt, 10 Cir., 70 F.2d 126, 130, said:

“* * * Where one party to an executory contract unqualifiedly repudiates, the other party may accept the repudiation, decline to render further services, and sue in quantum meruit for services already rendered.” (Citing cases.)

The court further said:

“* * * It thus conclusively appears, by McNutt’s own testimony, that if there were a repudiation by appellant, McNutt did not accept it but continued to perform. Before one may rely upon a repudiation of an executory contract, he must accept it as such and treat the contract as at an end. If he fails to do that, `he keeps the contract alive for the benefit of the other party as well as his own.'” (Citing cases.)

We conclude that the attempted summary dismissal of appellant at the November meeting, without formal charges having been made, and without giving him an opportunity to be heard, and without any trial whatever was an absolute nullity. Consequently, there was no breach of contract and no claim upon which relief may be had could be based upon that action.

The fact that the attempted dismissal of appellant was a nullity, it did not bar the board from further action against the appellant if conducted according to law.

With respect to the January meeting, the complaint alleged that formal charges against appellant and a notice of hearing thereon had been made and served upon him. It further alleged that appellant requested the board to announce whether or not it still considered him to be the president of the university; that the board declined to rule upon said question, and that the appellant declined to participate in the purported hearing; and that the hearing was conducted and resulted in the adoption of a resolution dismissing the appellant.

The appellant is in no position to complain of the action taken by the board at this last meeting which was held according to law. At that time and place he was given an opportunity to hear the charges made against him and to defend against them, if he so desired. He was still the president of the university under his contract of employment, whether the board considered him so or not, in view of its action taken on November 23, 1951.

What has been said above is in response to the claim for salary the appellant would have drawn for the remainder of his term had he not been removed.

The claim for damages because of the alleged malicious breach of contract and the resulting damages to his reputation as an administrator sounds in tort and is really against the State of New Mexico. Such an action may not be maintained against the state without its consent, and it is not claimed consent has been given. That portion of the suit is controlled by the case of Vigil v. Penitentiary, 52 N.M. 224, 195 P.2d 1014.

The trial court’s action in sustaining the motion to dismiss was proper and should be sustained, and its judgment affirmed.

It is so ordered.

McGHEE, C.J., and SADLER and COMPTON, JJ., concur.

SEYMOUR, J., not participating.

Marr v. Nagel

278 P.2d 561 (1954)

59 N.M. 21

Robert M. MARR, Plaintiff-Appellee, v. Eugene NAGEL, Defendant-Appellant, Cross-Appellee, Frank Cohn, Defendant-Appellee. Joseph L. TAPIA, Administrator of the Estate of John N. Tapia, Jr., deceased; and the Estate of John N. Tapia, Jr., deceased, Defendants, Cross-Claimants, v. NAGEL, and Cross-Appellants. J. V. Russell and Opal Russell, his wife, Intervenors, Cross-Appellants.

No. 5744.

Supreme Court of New Mexico.

December 28, 1954.

Lorenzo A. Chavez, Benigno C. Hernandez, Jr., Albuquerque, for Robert M. Marr.

Iden & Johnson, Albuquerque, for Eugene Nagel.

Simms & Modrall, George T. Harris, Jr., Albuquerque, for Frank Cohn.

*562 Vance Mauney, Renee Kalia, Albuquerque, for Joseph L. Tapia, administrator, and estate of John N. Tapia, Jr., deceased.

Joseph L. Smith, Arturo G. Ortega, Albuquerque, for intervenors Russell.

FRED J. FEDERICI, District Judge.

This case has heretofore been ruled upon by this Court on motions to dismiss and strike briefs in Marr v. Nagel, 58 N.M. 479, 272 P.2d 681, and in order not to unduly prolong this opinion reference is made to that case for a general statement of the facts.

In the instant case, which is the appeal proper, the first assignment of error is stated as follows:

“The Court erred in granting Frank Cohn’s motion for judgment notwithstanding the verdict when the said defendant Frank Cohn failed to move for a directed verdict at the close of all the evidence.”Rule 50(b) of the District Court Rules of Civil Procedure provides as follows:

“(b) Reservation Of Decision On Motion. Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Within ten days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned, such party, within ten days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict has been directed. If no verdict was returned the court may direct the entry of judgment as if the requested verdict has been directed or may order a new trial.”A review of pertinent portions of the record becomes necessary. At the close of plaintiff Marr’s and intervenors Russell’s case in chief, defendant Cohn’s counsel made the following motion:

“Mr. Harris: May it please your Honor, the Defendant Frank Cohn, at this time, Plaintiff and Intervenor having rested, respectfully moves that the Complaint in Intervention and the Plaintiff’s Complaint be dismissed, as against the Defendant Frank Cohn, on the ground that Plaintiff and Intervenors have failed to establish any negligence an the part of this Defendant, as a matter of law, and further, that even though negligence might have been established in one or more respects, that as a matter of law, there is no causal connection between the negligence so established and the proximate or the result of the accident. And that reasonable minds could not differ as to the fact that there was no negligence on the part of Mr. Cohn, which resulted in injuries to Mr. Marr, or to Mrs. Russell, the Intervenor.”The Court: Any other motions?

“Mr. Mauney: No motions.

“The Court: I am going to reserve ruling on that.”

It will be noted that the court reserved ruling on the motion at that time.

At the close of defendant Nagel’s case, Cohn’s counsel renewed the motion, and in this connection the transcript shows as follows:

“Mr. Harris: May we make, again, the motion made at the close of Plaintiff’s case?”The Court: Proceed.”

Here again the court apparently acknowledged the motion but made no ruling threon and directed counsel to proceed, and counsel proceeded then to put on testimony on behalf of his client Cohn. After Cohn testified, and at the close of all of the evidence, *563 the trial judge, after a five minute recess for the jury, during which the transcript does not fully disclose colloquy that may have occurred between court and counsel, the transcript shows as follows:

“The Court: I am going to overrule your motion, Mr. Harris,”the ruling being directed to Mr. Harris as attorney for Cohn. It seems quite obvious from the record what motion was referred to by the court, for no other pertinent motions were made by counsel for Cohn. Thereafter the jury returned a verdict against Cohn, whereupon Cohn’s attorney timely filed a written motion for judgment notwithstanding verdict, or in the alternative for an order granting a new trial. The trial court granted that portion of Cohn’s motion seeking a judgment notwithstanding verdict, and entered a written order entitled “Order for Judgment of Dismissal of Defendant Frank Cohn Notwithstanding Special Verdict,” in which order appear the following pertinent recitals:

“the Defendant Frank Cohn having moved the Court for a directed verdict at the close of Plaintiff’s case, and having renewed said motion at the close of the entire case after each of the Defendants had rested, the Court having then and there overruled said motion; and the jury having returned its special verdict in favor of the Plaintiff and Intervenor Opal Russell and against the Defendant Frank Cohn, and, thereafter, Defendant Frank Cohn having duly moved for a judgment notwithstanding the verdict or, in the alternative, for an order granting a new trial upon the grounds stated in said motion on file herein, and the Court having heard the arguments of counsel on said motion and being fully advised in the premises, having found that Defendant Frank Cohn was and is entitled to a judgment notwithstanding the verdict, it is hereby Ordered, etc.” (Emphasis ours.)Not only does the record indicate that the court advised counsel for Cohn at the close of all the evidence that he was overruling his motion, but the recitals in the order set out above unequivocally state that the motion made at the close of plaintiff’s case was renewed at the close of the entire case; consequently, if the law is (as contended by several parties in this court and which we do not have to here decide) that under Rule 50(b) supra, a motion for judgment notwithstanding verdict cannot be urged unless the movant had previously moved for dismissal or for directed verdict at the close of all the evidence and before submission to the jury, then the objection urged in this court has been met, for we find fairly from the reporter’s transcript, and from the dignity of the recitals in the order entered by the court on the matter that the motion for dismissal or directed verdict was renewed, and in any event ruled upon by the court adversely to the movant, at the close of all of the evidence. Following the verdict of the jury, the trial court granted the motion for judgment notwithstanding verdict within his authority so to do in contemplation of the provisions of Rule 50(b) supra, declaring that when a motion for a directed verdict is made at the close of all of the evidence and is denied, or for any reason is not granted, the trial court may determine the legal questions raised by the motion after submission of the action to the jury.

The aforesaid first assignment of error is therefore not well taken.

The second assignment of error is set out in the following language:

“The Court erred in granting defendant Frank Cohn’s motion for judgment notwithstanding the verdict for the reason that there was evidence and inference from which the jury could arrive at its verdict.”The trial judge in granting the motion for judgment notwithstanding verdict apparently concluded as a matter of law that either the defendant Cohn was not negligent or that if he was negligent in overtaking and passing the Marr car that this negligence, if any, was not the proximate cause or a contributing proximate cause of the personal injuries sustained by plaintiff Marr and his passenger, intervenor Russell, as a result of the Marr car being struck by the Nagel truck. Further, in sustaining the motion for judgment notwithstanding *564 verdict, the trial judge apparently also concluded as a matter of law that regardless of Cohn’s actions in the driving of his car at the time of these collisions that there was no duty on his part to foresee that the Nagel truck was going to collide with the Tapia car up ahead of him, resulting in the Cohn car being subsequently side-swiped by the free-wheeling dual wheels of the Nagel truck, to be still followed by a careening of the Nagel truck on to the Marr car which was behind the Cohn car.

The trial judge was apparently much disturbed on this phase of the case as early as at the close of plaintiff Marr’s and intervenor Russell’s case, at which time counsel for defendant Cohn moved the court for a dismissal as to him. That the court was disturbed is borne out by the comments of the trial judge which follow:

“The Court: Yes, sir, asked Mr. Marr, I didn’t see a thing. I am more accurate than I appear to be, up here. I watched each party, what they have proved, and what they haven’t, and each Defendant. It is no reflection on you, on the thing, except that it was the first established theory. There was some evidence, this morning, about some repeated sharp passing, beforehand, but I don’t even think that was permissible. I don’t care what he did before the site of the accident. He passed, all right, he passed around the car, without any danger. He if he cut in, I don’t know how he did, but he wasn’t involved in any physical contact, which isn’t a prerequisite, however, for liability. He can have liability without any physical contact. That happening an eighth of a mile away, according to Imershein, whether he is right or not, I don’t know, from the point of impact, happening so soon prior to the impact, I am inclined to think Mr. Marr or anybody else that was reasonable, would put on their brakes and stop. Naturally, Mr. Cohn would have swung over, precipitously or otherwise, if he saw an impending collision up ahead of him. He would have been foolish not to, from the evidence thus far. I think I ought to reserve it. I want to see what the evidence is. Bring in the jury.” (Emphasis ours.)The trial judge was hesitant, but concluded he would hear more evidence. At the close of all of the evidence the transcript does not disclose what the Judge’s remarks or feelings may have been, for all the transcript shows is a period of recess, but in any event he finally told counsel for Cohn he was going to overrule his motion, obviously talking about Cohn’s motion to dismiss. The trial judge, no doubt having in mind Rule 50(b) hereinabove set out which may permit bad practice but does none the less permit a trial judge to overrule or deny a motion for dismissal or for a directed verdict at the close of all of the evidence and reserve ruling thereon until after the jury is given an opportunity to pass on the identical situation from a factual standpoint, submitted the matter to the jury. Sometimes trial judges, including this writer, being perplexed, and yet having tentative views about a given situation, will permit a lay jury to consider a matter, perhaps in the hope that the jury will see things from a factual viewpoint in the same light as seen by the trial judge from a legal viewpoint, or at least as seen by him from a mixed legal and factual viewpoint. In the instant case the jury, by its verdict, 278ously did not bolster the trial judge’s original tentative views, but on the contrary, by the motion for judgment notwithstanding the verdict he was called upon, once and for all, to determine whether as a matter of law he should permit the special verdict of the jury to stand against Cohn, or in effect whether a cause of action was ever legally established by the evidence against him. It is apparent that the learned but perhaps disturbed trial judge, in conscience, could not and did not allow the special verdict against Cohn to stand, and not only set it aside but entered judgment in his favor. That is what we are called upon to review.

The transcript in this case consists of two large bound volumes of typewritten testimony in excess of 675 pages, and a review thereof has been difficult and tedious, and it does bear out a picture of the general facts *565 as already briefly outlined in Marr v. Nagel, supra, heretofore reported. It is obvious that what the defendant Cohn did was, while driving southerly, to overtake the Marr car at a time when overtaking the car appeared to invite no danger, and that when he overtook that car and saw the approaching north-bound Nagel truck, he did the very natural thing of pulling back into his right lane of travel in front of the Marr car, just passed, and behind the Tapia car, which had been in the lead of the three south-bound cars. The comment made by the trial judge in this case at the close of the plaintiff’s and intervenors’ case becomes pertinent, when he said: “Naturally, Mr. Cohn would have swung over precipitously or otherwise, if he saw an impending collision up ahead of him. He would have been foolish not to, from the evidence thus far.” Apparently subsequent evidence heard at the trial did not change the view as above stated by the trial judge, for he granted the motion for judgment notwithstanding verdict.

An examination of the entire record indicates that these series of collisions resulted from the initial negligence of the driver of the north-bound Nagel truck sideswiping the lead south-bound Tapia car (there being also evidence that the truck driver had been doing a little drinking of intoxicants), which Nagel truck was apparently over on the wrong lane of traffic, for the testimony shows that the front wheels of the Nagel truck made a moon shaped skid mark approximately seven inches west of the center line of the highway at the moment of the first impact over on the Tapia car’s lane of traffic. The point of impact of this first collision was between the left portion of the Tapia car at about the window level and the left corner of the bed of the truck, and apparently this impact also tore loose the left rear dual wheels and drive shaft of the truck, so that the dual wheels and drive shaft were “free wheeling” causing the driver of the Nagel truck to have difficulty keeping the truck in his lane of the highway and under control. After the first collision the Nagel truck continued northerly and the second collision apparently occurred between the “free wheeling” left dual wheels and drive shaft of the truck and the left rear fender on the Cohn car, over on Cohn’s side of the road. Following this the Cohn car crashed into the rear of the Tapia car, the front of which was imbedded in the east railing of the bridge following the impact with the Nagel truck. Immediately following the second collision the Nagel truck looped on the highway and crashed into the front end of the Marr car, which Marr car was at that time almost completely stopped in its proper lane of the highway, and it was in the Marr car that plaintiff Marr and his passenger, intervenor Opal Russell, sustained the physical injuries for which they brought suit against defendants Nagel and Cohn.

At any rate from the maze of testimony involved, the foregoing seems to be the best picture this writer can elicit from the record of what transpired. In concluding this point we cannot say, from the evidence as disclosed from the record, that the trial court erred as a matter of law in granting defendant Cohn’s motion for judgment notwithstanding verdict.

The conclusion thus reached is based in part on the following reasons, if it be necessary that reasons be given:

Reading the testimony in the light most advantageous to the plaintiff, and giving him the benefit of every inference of fact fairly deducible therefrom within the meaning of Michelson v. House, 54 N.M. 197, 218 P.2d 861, and Miera v. George, 55 N.M. 535, 237 P.2d 102, it is our opinion that the plaintiffs and cross defendants were not entitled as a matter of law to a judgment against the defendant Cohn in that:

1) Even if it be assumed for the purpose of this decision that there may have been some negligence on the part of Cohn in passing the Marr car at the time he did and pulling in between the Marr car and the Tapia car when the Nagel truck appeared on the scene, even if this be construed as in and of itself a negligent act on the part of Cohn, it is highly speculative, to say the least, that any such negligence was either the proximate cause or a contributing proximate cause of the personal *566 injuries sustained by Marr and his passenger, intervenor Russell, because as elsewhere stated in this opinion the cause of all of these collisions was driver Nagel’s original negligence in striking the Tapia car up ahead of the Cohn car on the Tapia side of the road.

2) The driver of the Cohn car could in no way anticipate or foresee the possibility of the Nagel truck striking the Tapia car up ahead of him, nor its subsequent careening forward and striking the Cohn car and finally the Marr car behind him.

3) It was the driver of the Nagel truck’s original negligence that set in motion the chain of events which resulted in the Marr car being ultimately struck.

4) Nothing that the driver of the Cohn car did set in motion any chain of events which resulted in the Nagel truck hitting the Tapia car up ahead or ultimately striking the Marr car behind him. There is no evidence in the record, or at least none has been called to our attention, which would indicate that when Cohn passed the Marr car his lights blinded the driver of the Nagel truck, causing the driver of the Nagel truck to lose control of his truck and strike the Tapia car.

5) All Cohn did was pass the Marr car successfully and pull in ahead of the Marr car and behind the Tapia car successfully, and was over on his side of the lane when the Nagel truck struck the Tapia car up ahead.

6) At most, through the instinct of self-preservation Cohn pulled over on his right lane of the road after successfully passing the Marr car when he saw the Nagel truck approaching and the possibility of the accident up ahead of him. The old Squib case that we all read about in Torts in Law School years ago disposes of that phase of the case.

7) Furthermore, from the way the accident finally happened, even if Cohn had not overtaken Marr, the Marr car would probably have been hit by the Nagel truck anyhow. It just happened that the Marr car was at the wrong place at the wrong time, and we do not see where Cohn should be penalized merely because the free wheeling duals of the Nagel truck sideswiped the Cohn car and then went on and hit the Marr car behind him. At the time the Cohn car was struck by the Nagel truck, Cohn was over on his side of the road where he belonged, and, of course, so was Marr.

8) If the driver of the Cohn car is to be held responsible, then we are penalizing one who instinctively managed successfully to avoid a collision which might have been serious so far as he was concerned, and place on him liability for circumstances that arose beyond his control, namely the original striking of the Tapia car up ahead by the Nagel truck.

9) Even if the drivers of both the Nagel truck and the Tapia car were negligent in connection with the first collision, the situation does not change so far as Cohn’s liability is concerned.

The ruling of the trial court in granting judgment notwithstanding verdict is hereby sustained.

The third assignment of error, raised only by intervenor appellee and cross-appellant, J.V. Russell, is stated as follows:

“The Court erred in denying intervenor J.V. Russell’s motion for a new trial and in entering judgment ordering, adjudging and decreeing that he have nothing against the defendants.”The question involves special interrogatory No. 9 submitted to the jury, and the jury’s answer thereto, as follows:

“9. If you find any or all of the defendants negligent in the collision involving the Marr car and the Nagel truck, and that such negligence on the part of each Defendant was either the proximate cause or a contributing proximate cause to the collision between the Nagel and Marr vehicles, specify the damages proximately suffered by each of the following parties:

      "Robert M. Marr:  $10,000.00
      "Opal Russell:    $ 2,000.00
      "J.V. Russell:    $ None"

*567 In the lower court, J.V. Russell and Opal Russell, his wife, filed a complaint in intervention, and on the first cause of action the jury allowed Opal Russell $2,000 damages, apparently for physical injuries sustained by her, and for pain, mental anguish, medical and hospital expenses, etc. In the second cause of action of the complaint in intervention, which is the basis of the present point, intervenor J.V. Russell alone sued for damages on the grounds of having been deprived of the services of his wife, Opal Russell, as a result of physical injuries sustained by her while a passenger in the Marr automobile. The evidence disclosed that she suffered some injury to the use of her arm and shoulder, and that she was only able to do light housework, was nervous, etc. At any rate, under special interrogatory No. 9, as above set out, the jury entered the word “none” following the interrogatory insofar as it applied to J.V. Russell on his said claim.

The interrogatories submitted to the jury in the lower court do not display the best draftsmanship in the world, and particularly with reference to the language of the interrogatory No. 9. To start out with, all three claims of Marr, Opal Russell, and J.V. Russell are combined together in the same interrogatory in such a way as to have made it difficult for a jury to have made it absolutely plain what was intended by their special verdict. It does appear from the interrogatories as a whole that the jury did find negligence on the part of the defendants insofar as the collision involving the Marr car and the Nagel truck are concerned, and Opal Russell was a passenger in the Marr car. Having answered that interrogatory in the affirmative, then the jury was merely asked to assess damages, if any, in favor of Marr, Opal Russell, or J.V. Russell. They awarded damages to Marr and Opal Russell, but wrote in the word “none” following the name of J.V. Russell.

Nowhere by the form of interrogatories was the jury asked whether all the issues were found in favor of the intervenor J.V. Russell and against the defendants, on his claim for deprivation of the services of his wife in intervenor’s second cause of action. Neither did the interrogatories provide that the jury could specifically find such issue or issues in favor of the defendants and against the intervenor J.V. Russell. The whole set of issues was apparently all bunched in together. However, it is not quite plain from the interrogatories as a whole just what the jury intended to do as to the J.V. Russell second cause of action. The whole situation is highly speculative to say the least, and the answers to the interrogatories do not clearly point out whether the jury intended to find for the intervenor and cross-complainant J.V. Russell on his second cause of action, or whether the jury intended to find for the defendant or defendants. Even if the interrogatories and answers thereto be construed as a finding of the issues in favor of the intervenor J.V. Russell on his second cause of action, and even if under such a situation the jury may have thought that the resulting damages were inconsequential in dollars and cents, even so it would seem to make no difference as to the conclusion we must reach in view of the authorities hereinafter cited.

Section 21-8-25, New Mexico Statutes 1953 Annotated (formerly § 19-825, 1941 Comp.) provides as follows:

“When a verdict is found for the plaintiff in an action for the recovery of money, or for the defendant when a set-off for the recovery of money is established beyond the amount of the plaintiff’s claim as established, the jury must also assess the amount of the recovery; * * *.”In the case of Klein v. Miller, 159 Or. 27, 77 P.2d 1103, 1104, 116 A.L.R. 820, 822, the jury found for the plaintiff and assessed damages as “no damages.” The court had before it an Oregon statute, Code 1930, § 2-405, providing as follows:

“`When a verdict is found for the plaintiff in an action for recovery of money, or for the defendant when a counterclaim for the recovery of money is established beyond the amount of the plaintiff’s claim as established, the jury shall also assess the amount of recovery.'”*568 The Oregon court held as follows:

“A verdict which does not conform to this statute, confers no authority to render a judgment upon it. Goyne v. Tracy, 94 Or. 216, 185 P. 584. “In the case at bar the verdict is not for the defendant. Its assessment of `no damages’ nullifies its effect as a verdict in favor of plaintiff. Being neither a verdict in favor of plaintiff nor a verdict in favor of defendant, it is in effect no verdict at all.”In an earlier Oregon case, McLean v. Sanders, 139 Or. 144, 7 P.2d 981, we quote as follows:

“A verdict in the instant case found for the plaintiff but failed to assess the amount of her recovery, expressly stating that she had suffered no damage. The gist of an action for false imprisonment is damage. Unless there was damage, the action cannot be maintained. The verdict as rendered is neither for the plaintiff nor for the defendants. If the jury had found that plaintiff had sustained nominal damages, only that would have been sufficient, but having found, in effect, as the verdict shows, that the imprisonment was unlawful, it was bound, under the statute, to find that the plaintiff had suffered at least nominal damages. * * * * * * “It is impossible to ascertain from this verdict whether the jury intended to find for the plaintiff or for the defendants. Because of its uncertainty in this respect, it is not sufficient to support a valid judgment. * * * When the verdict was returned in that form, it was the duty of the court to point out this defect to the jury and send it back with directions either to assess the damages or else return a verdict for defendants. Since the court failed to perform that duty and the jury has been discharged, the judgment must be reversed. The case, therefore, will be remanded to the court below for such further proceedings as are not inconsistent herewith.” (Emphasis ours.)In Ridenour v. Lile, 93 Ohio App. 435, 114 N.E.2d 166, 169, the Ohio court had before it an Ohio statute, Gen.Code, § 11420-19, providing in part as follows:

“`When by the verdict either party is entitled to recover * * * from the adverse party, the jury must assess the amount of the recovery in its verdict.'”The verdict of the jury read as follows, in said case:

“`We, the jury, being duly impaneled and sworn, find upon the issues joined between the plaintiff and defendant upon the matters set out in the plaintiff’s petition, in favor of the defendant. “`We further find upon the issues joined between the defendant and the plaintiff upon the matters set up in the defendant’s answer and cross-petition, in favor of the defendant, and that there is due to the defendant from the plaintiff the said E.M. Ridenour, the sum of no dollars.'” (Emphasis ours.)The Ohio court held as follows:

“In the present case, upon the return of the verdict the trial court erred in accepting same. It was the duty of the trial court to point out this defect to the jury and send it back with instructions either to assess the damages recoverable by defendant from plaintiff or else return a verdict finding a certain definite sum due plaintiff from defendant on plaintiff’s petition, a certain definite sum due defendant from plaintiff on defendant’s cross-petition, strike a balance and make a finding of a definite sum in dollars and cents due either plaintiff or defendant, as the computation showed. “This error rendered the entire verdict invalid both as to the issues raised by the petition and the answer thereto and as to the issues raised by the cross-petition and the reply.” (Emphasis ours.)In view of the provisions of our statute, supra, and in view of the authorities heretofore cited, the court erred in not granting intervenor cross-complainant J.V. Russell his motion for a new trial.

*569 In view of the foregoing it is the opinion of this court that as to assignments of error 1 and 2 the lower court is affirmed. As to assignment of error No. 3 the cause is reversed and remanded to the District Court with instructions to grant the intervenor cross-complainant J.V. Russell a new trial on all issues on his second cause of action, and it is so ordered.

McGHEE, C.J., and SADLER, COMPTON and LUJAN, JJ., concur.

KIKER, J., not participating.