Breece v. Gregg

Decision Date24 June 1932
Docket NumberNo. 3631.,3631.
Citation36 N.M. 246,13 P.2d 421
PartiesBREECEv.GREGG et al.
CourtNew Mexico Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Otero County; Dunifon, Judge.

Suit by George E. Breece against J. J. Gregg and others. From a final decree in favor of defendants, plaintiff appeals.

Reversed and remanded, with directions.

Filing abstract of judgment in office of county clerk, without docketing judgment, held insufficient to create lien on judgment debtor's real estate. Comp.St.1929, §§ 76-110, 76-111.

George A. Shipley, of Alamogordo, for appellant.

Holt & Holt, of Las Cruces, for appellees.

HUDSPETH, J.

Appellant brought suit to restrain the sale of a tract of land situated in Otero county advertised to be sold under an execution issued out of the district court of Otero county August 17, 1929, on a judgment rendered on the 26th day of August, 1924, in cause No. 2330 on the civil docket of that court in favor of J. J. Dale, receiver of the First State Bank of Alamogordo, plaintiff, and against P. W. Hickson, defendant, which judgment was assigned, before the issuance of the execution, to the defendant, J. J. Gregg. A temporary injunction was issued restraining the sale. The trial was had after the issues were made by the answer and reply, and a final decree rendered in favor of the defendants dissolving the temporary injunction, from which an appeal with supersedeas has been perfected.

Cause No. 2330 was a suit by the receiver of the insolvent bank against stockholders, including Hickson, on the statutory stockholders' liability, Laws 1923, c. 149, § 8, Comp. St. 1929, § 13-141, and a default judgment was entered against Hickson. It appears that one Gregg, an officer and director of the bank, a short time before the bank closed, traded seventy shares of the capital stock of the bank to Hickson for the land involved in this suit, and immediately after the failure of the bank Hickson filed suit against Gregg to rescind, which suit was numbered 2304. This suit was pending in the same court at the time the judgment by default was taken against Hickson in cause No. 2330, and more than a year later a judgment was entered in cause No. 2304 in favor of Hickson rescinding the contract on the ground of fraud and restoring the land to Hickson. In the meantime the receiver of the bank had sued out a writ of garnishment, and also was holding in his possession certain property of Hickson for the satisfaction of the judgment in cause No. 2330. After the rendition of the judgment in favor of Hickson in cause No. 2304, the court in cause No. 2330 found that the judgment in said cause should not have been rendered against Hickson, and ordered the receiver to turn over to Hickson the property held by him, and dismissed the writ of garnishment theretofore issued.

On February 6, 1929, P. W. Hickson and wife conveyed by warranty deed the land involved to the appellant, Breece, for a valuable consideration, which deed was duly recorded on the 11th day of April, 1929.

The judgment in cause No. 2330 against Hickson, for some reason not shown by the record, was not entered upon the judgment docket of the district court, although judgments against other defendants rendered in the same cause were entered upon the district court judgment docket. However, an abstract of the judgment against Hickson, which does not purport to be a transcript of the judgment docket, was filed in the office of the county clerk September 4, 1924.

[1][2][3] The question to be determined is as to whether or not a judgment lien on the real estate of the judgment debtor, Hickson, was created by the filing of the abstract of...

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6 cases
  • United States v. Dioguardi
    • United States
    • U.S. District Court — Southern District of New York
    • July 18, 1973
  • SCOTT v. UNITED States
    • United States
    • New Mexico Supreme Court
    • December 22, 1949
    ...a lien in the state and federal courts. The holding of this court in Kaseman v. Mapel, supra, has been followed in Breece v. Gregg et al., 36 N.M. 246, 13 P.2d 421, and Pugh v. Heating & Plumbing Finance Corporation, 49 N.M. 234, 161 P.2d 714. The appellant asserts that a transcript is a co......
  • State v. Eskildson
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    • New Mexico Supreme Court
    • June 27, 1932
    ...statute. "Mr. Woodward: We are not proposing to offer any direct evidence. We are offering here the testimony of an expert psychiatrist [13 P.2d 421.] and physician as to the mental condition of the juror, Snyder, for the purpose of sustaining the allegations in the motion. "The Court: He i......
  • State v. Eskildson.
    • United States
    • New Mexico Supreme Court
    • June 27, 1932
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