Arias v. Springer

• Decision Date: 23 March 1938
• Docket Number: Nos. 4333, 4334.,s. 4333, 4334.
• Parties: ARIASv.SPRINGER et al.SAMEv.SPRINGER.
• Court: New Mexico Supreme Court

42 N.M. 350

78 P.2d 153

ARIAS

v.SPRINGER et al.SAME

v.SPRINGER.

Nos. 4333, 4334.

Supreme Court of New Mexico.

March 23, 1938.

Appeal from District Court, Bernalillo County; Thomas J. Mabry, Judge.

Two separate suits by William A. Arias against Richard Springer and another and against Luciana G. Springer, to cancel deeds because of forgery of the grantor's signatures. Decrees were entered for plaintiff and, when the causes were reopened for further testimony, decrees were entered denying plaintiff any relief and quieting title in defendants on their cross-action, and plaintiff appeals.

Affirmed.

A residuary devisee of grantor was not a “purchaser” within recording statute, so as to prevail over grantee who had not recorded deed, where grantor had executed deed to land and delivered deed to third party with instructions that third party deliver deed to grantee at grantor's death, “purchaser” having two meanings, one referring to person who obtains title to realty for a pecuniary consideration or its equivalent, which is the meaning intended by the statute, and the other including all persons who acquire realty otherwise than by descent, including devisees. Comp.St.1929, § 118-110.

Hanna, Wilson & Brophy and James F. Warden, all of Albuquerque, for appellant.

John F. Simms, J. R. Modrall, and Wilson & Remley, all of Albuquerque, for appellees.

BRICE, Justice.

The two cases were consolidated for the purpose of taking testimony, as the greater part of the evidence is pertinent to both cases.

A decree was entered by the district court in each case, canceling a deed because the grantor's signature thereon (ostensibly that of Mary de Romero) was a forgery.

The principal question is one of procedure brought about by an application of the defendants (appellees here), filed in due time, to set aside this decree.

After the parties had concluded the introduction of testimony at the original hearing, the district court decided that the alleged signatures of Mrs. de Romero, appearing as grantor in the two deeds, were forgeries; and made findings of fact accordingly; and on April 20, 1937, entered his decree in each case, canceling the questioned deeds. A motion to set the decree aside was filed April 24, 1937, and came on for hearing the same day, both plaintiff and defendants appearing by their respective counsel.

Plaintiff's counsel protested against the court having allowed handwriting experts (Mr. Osborn of New York and Mr. King of Denver), in their absence, to examine the questioned documents and exhibits of genuine signatures of Mrs. Romero, introduced in evidence. In connection with this protest counsel made the following statement, “The statute allows us five days notice on any hearing and the motion in question was filed only this morning and not until then were we given a copy thereof. We feel that it would be highly prejudicial to allow the hearing at this time without giving us the notice provided by statute and an opportunity to prepare for such hearing. We object also for the reason that at this time we are wholly unprepared.”

This protest the court overruled upon the ground that witnesses Osborn and King were present in court, lived in far distant cities, and desired to return home without delay. The court then made this statement: “Now, gentlemen, Mr. Osborn, Mr. King and Mr. Powers are present-I understand these gentlemen are all away from home and very anxious to get away, and the Court would like to proceed now and go as far as we can, taking the man fartherest away from home, Mr. Osborn, first, with the understanding that counsel for the plaintiff may have a recess with reasonable and additional time to secure and present to the Court any further evidence in addition to that which has heretofore been presented,” and entered the following order without further testimony: “This matter coming on to be heard upon motion of defendants herein, as to both the above entitled matters, heretofore joined and consolidated for trial; and, in addition, upon the Court's own motion, and the Court being fully advised in the premises, it is ordered adjudged and decreed that the findings, conclusions and judgments hereinbefore made and entered herein, are hereby vacated and set aside, and the said causes are reopened for further hearing herein, to all of which plaintiff objects and excepts.”

Thereafter on the same day, the court proceeded to hear the testimony of Albert D. Osborn and George H. King, experts on questioned documents, which, given at great length, resulted in their conclusions that the deeds in question were not forgeries. At the close of the testimony the court stated: “The Court understands the plaintiff wants a little more time. The Court announced before that the plaintiff would be allowed reasonable time to produce further testimony if they desired to do so, and we will take this matter up for further hearing on Friday the 7th of May at 9:30 A. M.”

Thereafter, on the date set, the parties appeared and the taking of testimony was resumed. Attorneys for plaintiff made the following statement: “If the Court please, at this time I would like to make a brief statement into the record, if I may. We desire the record to show that in each of the cases consolidated here for trial, the plaintiffs abandon their theory that the signatures of Mary S. de Romero appearing on the deeds are not her genuine signatures. In both cases we are now relying on the allegations contained in paragraph No. Five of each complaint that the said instruments in question were not signed or executed by Mrs. Romero in their present form, and the allegation that neither of said deeds were legally delivered during the lifetime of Mary S. de Romero, in that she did not intend to pass title to the property described in either of the instruments at the time Luciana Springer obtained possession of said deeds, or at any other time prior to the death of Mary S. de Romero.”

Defendants' counsel objected to a trial upon this theory because not within the issues; and among other things stated, “Now if they can show that they were not signed, executed or delivered by Mary S. de Romero during her lifetime, that is within the allegations of the bill; but, if they undertake now to shift the theory of these cases and to attempt to prove that, while they are not forgeries, they have been tampered with, or put together with a genuine signature behind a spurious first page, no such issue is tendered by these pleadings.”

The alleged grounds upon which plaintiff sought to cancel the deeds in question are that they were not signed, executed, or delivered by the said Mary S. de Romero during her lifetime, and that the said purported deeds and the signatures of the said Mary S. de Romero appearing thereon are not in reality the signatures of Mary S. de Romero, now deceased, but are forgeries.

The court overruled defendants' objections and proceeded to hear the testimony of the experts called by plaintiff on the question of whether one of the original deeds had been tampered with by removing the first page and substituting another; and if in other respects the two deeds appeared in the form in which they were originally signed. After hearing this testimony, the case was closed.

On May 8, 1937, the court announced his decision in a memorandum opinion, in which he held that the signatures to the deeds were genuine and that the deeds were in the condition in which they were signed by Mrs. Romero; and that they had been delivered during Mrs. Romero's lifetime.

A decree was accordingly entered denying plaintiff any relief and quieting title to the property in the defendants on their cross-action.

Prior to the enactment of chapter 15, N. M.L.1917, upon entry of a judgment the court lost jurisdiction over it; because there was no term of court in this jurisdiction except for jury purposes. Norment v. First Nat. Bank, 23 N.M. 198, 167 P. 731. The material part of section 1 of that act, section 105-801, N.M.Sts.1929, is: “Final judgments and decrees, entered by district courts in all cases tried pursuant to the provisions of this section shall remain under the control of such courts for a period of thirty days after the entry thereof, and for such further time as may be necessary to enable the court to pass upon and dispose of any motion which may have been filed within such period, directed against such judgment.”

[1] For 30 days after the entry of a final judgment by the district court, this statute gives the court the same control over it as courts had at common law over their judgments during the term of court at which they were entered. Kerr v. Southwest Fluorite Co. et al., 35 N.M. 232, 394 P. 324.

We stated in Pugh v. Phelps, 37 N.M. 126, 19 P.2d 315, 317: “Since it appears from the record in this case that the motion to amend the judgment was filed within thirty days after the rendition thereof, and was decided by the court within thirty days from the filing thereof, we think the court acted within its authority, and that at the time the motion amending the judgment was sustained and the judgment amended, the court had full control of its judgment and jurisdiction and authority even upon its own motion to make any change, modification, or correction thereof which it deemed proper under the circumstances.”

[2] In Henderson v. Dreyfus, 26 N.M. 262, 191 P. 455; Id., 26 N.M. 541, 191 P. 442, this court held that it was authorized to set aside its own judgment on its own motion, without notice to either party. The same authority rests in the district court. Henderson v. Carbondale, etc., Co., 140 U.S. 25, 11 S.Ct. 691, 35 L. Ed. 332; State ex rel. Yilek v. Jehlik, 66 Kan. 301, 71 P. 572, 61 L.R.A. 265; 15 R. C.L. title “Judgments,” § 140.

The order entered setting aside the decree was on the court's own motion, as well as on motion of the defendants.

[3][4] The plaintiff was allowed time within which to produce testimony in rebuttal of...