Baca v. Perea.

• Decision Date: 02 October 1919
• Docket Number: No. 2190.,2190.
• Citation: 184 P. 482,25 N.M. 442
• Parties: DE BACAv.PEREA.
• Court: New Mexico Supreme Court

25 N.M. 442

184 P. 482

DE BACA

v.PEREA.

No. 2190.

Supreme Court of New, Mexico.

Oct. 2, 1919.

Syllabus by the Court.

Where a party in the district court in his pleading makes the papers in another cause in such court a part of such pleading by reference, he will not be heard to object in the appellate court to the incorporation of such papers, so made a part of his pleading by reference, into the transcript of record.

There is a well-recognized exception to the rule that the appellate court will not examine a record, unless exceptions have been taken and the error complained of called to the attention of the trial court, which is that the court will notice, without exception or presentation, jurisdictional and other matters which may render a case inherently and fatally defective and require a reversal.

Where a judgment is rendered on an answer which clearly fails to state facts sufficient to constitute a defense to a good complaint, such judgment is inherently and fatally defective, and no exception to the rendition of the same is necessary.

Error to District Court, Sandoval County; Raynolds, Judge.

Suit by Socino C. De Baca against Jacobo Perea, with counterclaim and cross-complaint by defendant. Judgment for defendant, dismissing the complaint on the merits, and plaintiff brings error. Reversed and remanded, with instructions to set aside the judgment and to grant defendant leave to amend his answer.

There is a well-recognized exception to the rule that the appellate court will not examine a record unless exceptions have been taken and the error complained of called to the attention of the trial court, which is that the court will notice, without exception or presentation, jurisdictional and other matters which may render a case inherently and fatally defective and require a reversal.

Marron & Wood, of Albuquerque, for plaintiff in error.

Neill B. Field, of Albuquerque, for defendant in error.

ROBERTS, J.

Plaintiff in error sued defendant in error in the court below for contribution, alleging in substance that on the 30th day of June, 1915, plaintiff and defendant became joint sureties upon the note of Emiliano Lucero to the State National Bank of Albuquerque for the sum of $3,000; that, the principal failing to pay the note, the bank demanded payment thereof from the sureties; that the defendant failed and refused to pay, and in order to prevent suit plaintiff was forced to and did pay the full amount of the note; that nothing had been paid to the plaintiff, except that a mortgage which had been given to the plaintiff and the defendant by Lucero to indemnify them against loss or damage because of having signed the note had been duly foreclosed, and the net amount realized from the foreclosure applied upon the claim, and that of the balance remaining unpaid, the equal one-half part, to wit, $1,547.59, with interest, was due from the defendant to the plaintiff by way of contribution.

On the 11th day of July, 1917, the defendant appeared and filed a pleading denominated “Answer, Counterclaim, and Cross-Complaint.” The first paragraph of the answer attempted to plead res adjudicata, and, after setting up the title and number of the case upon which the claim of former adjudication was based, the answer proceeded:

“This defendant prays leave to refer to the records and proceedings in said cause of Socimo C. De Baca v. Emiliano Lucero, Luz E. Lucero, and Jacobo Perea, No. 420 on the docket of this court, and that the same may be taken and considered as part of this answer with the same effect as if a certified transcript thereof had been attached to and made a part thereof.”

The proceedings, pleadings, and judgment in the case referred to, which are incorporated into the transcript herein, clearly show that there was no foundation whatever for the claim that there had been a former adjudication. The second paragraph of the answer also failed to state facts sufficient to constitute a defense. The cross-complaint asked that an accounting be taken of the property purchased by plaintiff at the foreclosure sale, and that defendant be given the right to contribute to the expense incurred by the plaintiff therein and that he receive the benefit upon the payment of one-half the amount paid by plaintiff as the purchase price of the property; it being his contention that plaintiff had purchased the property at much less than its value, and that he should be allowed to participate in the benefits. Plaintiff failed to demur or reply to the answer and counterclaim within the time limited by ...