Blake v. Cavins

• Decision Date: 08 September 1919
• Docket Number: No. 2256.,2256.
• Citation: 185 P. 374,25 N.M. 574
• Parties: BLAKEv.CAVINS et al.
• Court: New Mexico Supreme Court

25 N.M. 574

185 P. 374

BLAKE

v.CAVINS et al.

No. 2256.

Supreme Court of New Mexico.

Sept. 8, 1919.Rehearing Denied Dec. 1, 1919.

Syllabus by the Court.

Section 5571, Code 1915, provides that the venue of a case, either civil or criminal, may be changed when it shall appear that either party cannot have justice done him at a trial in the county in which such case is then pending, or for any other proper cause satisfactory to the judge before whom the motion is made.

Section 5573, Code 1915, makes the changing of venue mandatory upon motion filed therefor, supported by affidavits showing the facts which the statute prescribed shall require the change of venue.

Under the first section no affidavit showing is required, and the venue may be changed upon oral motion. Where a change of venue is applied for, and the supporting affidavits are not sufficient to warrant the change under section 5573, but the court nevertheless grants the change of venue, it will be presumed that the power was exercised under section 5571, and that the court properly exercised the discretion conferred by such section.

The trial court cannot take judicial knowledge of the fact that records in the office of the county recorder have been destroyed by fire.

Where the notice of location of a mining claim states that it is a relocation of a former named location, the validity of the prior location is admitted; but, where the notice of location does not state that it is a relocation, the junior locator may defend upon (a) the invalidity of the senior location, and (b) the failure of the senior locator to do the required amount of assessment work, and by interposing the defense of failure to do the required amount of assessment work, the junior locator does not sacrifice his right to question the validity of the senior location on the ground of failure to comply with the requirements of the federal statute in making the location.

Questions presented for specific findings, which assume as true material facts in issue and not admitted, should not be submitted.

Whether the notice and description of the claim are sufficient to apprise other prospectors of its precise location is a question of fact and not of law.

Where a witness uses a memorandum book for the purpose of refreshing his recollection, counsel, on cross-examination, have a right to have such memoranda so used by the witness to refresh his recollection put in evidence.

Where plaintiff's evidence, given upon the trial, is inconsistent with facts theretofore sworn to by such plaintiff in an affidavit in support of a motion for a new trial, defendant is entitled to have such affidavit read to the jury, proper foundation being laid, for the purpose of impeaching the plaintiff.

Appeal from District Court, Doña Ana County; Medler, Judge.

Action by George A. Blake against Vernon S. Cavins and others. Verdict for plaintiff, motion for new trial denied, and judgment on the verdict, and defendants appeal. Reversed and remanded, with instructions to grant defendants a new trial.

Whether the notice and description of a mining claim are sufficient to apprise other prospectors of its precise location is a question of fact and not of law.

E. R. Wright, of Santa Fé, for appellants.

E. W. Dobson, of Albuquerque, for appellee.

ROBERTS, J.

This is an appeal from a judgment of the district court of Doña Ana county, entered upon a verdict of the jury finding that the appellee was entitled to the possession of a certain tract of land known as the Abo lode mining claim, located by him in 1893. The land involved in the action is situated in western Torrance county, in what is known as the Abo Pass. This particular portion of Torrance county, prior to the year 1893, was within the then boundaries of the county of Valencia. In 1915 the appellants' predecessors in interest located practically the same land as was thereafter claimed by appellee, under the mining laws of the United States, as the Blue Star lode mining claim. They posted their location notice, marked the boundaries, and duly recorded the location notice. They discovered mineral in place, to wit, copper, and proceeded with the development of their mine.

In December, 1915, while the appellants were conducting actual mining operations and had opened up valuable deposits of copper, the appellee appeared and claimed that he was the owner of the tract of land and entitled to the possession of it under his location made in 1893. Shortly thereafter appellee filed this action in ejectment in the district court of Torrance county, and at the same time brought an injunction suit to prevent appellants from doing any more work upon the claim, and for damages. The claim for damages and the injunction are not involved in this appeal, and no further reference to those features need be made. After the suit was filed, but before service was had upon the appellants Cavins and Prichard, they organized the defendant company, the Abo Cañon Copper Mining Company, under the laws of New Mexico, and transferred all their interest to that company. The corporation was thereafter made a party defendant. Issues were joined and the case came on for trial at the November, 1916, term of the district court of Torrance county, and resulted in a verdict for the appellants.

Appellee filed a motion for a new trial, and this the court granted in March, 1917. Thereafter, and on the 18th day of May, 1917, the appellee filed a motion for a change of venue to some other county in the district free from exception. The regular term in and for Torrance county began on the 21st day of May, 1917. This was the first term of court subsequent to the trial in November, 1916. On May 21, 1917, the appellants filed exceptions and objections to the sufficiency of the motion papers for a change of venue. These objections and exceptions were by the court sustained, and over the objection of appellants the court permitted appellee to file, within five days, an amended motion for a change of venue. This amended motion did not come on for hearing until September 25, 1917, at Las Cruces, Doña Ana county, within said judicial district.

Appellants again filed objections and exceptions to the sufficiency of the amended motion, which exceptions and objections were by the court overruled. Appellants then demanded that appellee produce his supporting witnesses in open court for examination as to their knowledge and interest. Counsel for appellee produced the plaintiff and Victorio Ballejos, one of the supporting witnesses, but did not produce the other supporting witness at that time, stating that they were unable to produce his attendance, but would do so later, if the court desired. Over the objection of the appellants the plaintiff was examined, and thereafter the witness Ballejos was examined. The court changed the venue of the case from Torrance county to Doña Ana county over the objection and exception of the appellants.

The case was tried in Doña Ana county in November, 1917. Counsel for appellants objected to going to trial on the ground that the district court of Doña Ana county was wholly without jurisdiction to try the case. The objection was overruled, and the court directed that the trial proceed, and the jury was impaneled.

Appellants defended upon two grounds: First, that the annual assessment work upon the so-called Abo mine located by appellee in 1893, was not done for the year 1914, and that upon January 1, 1915, the ground covered by the so-called Abo mining claim was open for entry under the United States mining laws by the first comer, and that when appellants' predecessors in interest made the location of the Blue Star mining claim in September, 1915, that said mine location was an original location and entitled them to the possession of the land. They also defended upon the ground that the original location made in 1893 of the Abo mine by the appellee was defective in several particulars, viz.: That said grounds were never properly located by any one prior to the time said location was made by Jackson and Hanlon, appellants' predecessors in interest; that said ground had never been properly monumented by any previous locators, nor had any certificate ever been recorded in the county of Torrance, the county in which said lode claim is located; that there was no notice of any claim of said ground posted at any place within the boundaries of said lode claim.

Appellee contended that the location of the Blue Star mine by the appellants' predecessors in interest in September, 1915, was an attempted relocation of the Abo mine, and that therefore the validity of the original location of the Abo mine by the appellee in 1893 was admitted. A great deal of testimony was taken, and the general issues, together with certain specific findings, were submitted to the jury. The jury returned its verdict in favor of the appellee and also returned answers to the specific findings. A motion for a new trial was filed by the appellants, which was overruled, and judgment was entered upon the verdict. From the judgment so entered, this appeal is prosecuted.

Thirty-five specifications of error are filed, which was discussed under 10 points. Only such alleged errors as are necessary to a disposition of the case on appeal will be considered, and they will be stated in the order considered.

[1] The first point presented is that the court erred in granting a change of venue to Doña Ana county. Appellants contend that the motion for a change of venue was insufficient for the following reasons:

“(a) It failed to set forth facts to support the belief of the plaintiff as to the matters in the affidavit of plaintiff set forth as grounds for change of venue.

(b) The amended motion for change of venue failed to set forth facts within the provisions of section 5576, New Mexico Code 1915.

(c) The court was without authority to permit the plaintiff to amend his motion originally filed on May 18,...