Carroll v. Bunt

• Decision Date: 29 August 1946
• Docket Number: No. 4942.,4942.
• Citation: 172 P.2d 116,50 N.M. 127
• Parties: CARROLLv.BUNT et al.
• Court: New Mexico Supreme Court

50 N.M. 127

172 P.2d 116

CARROLL

v.BUNT et al.

No. 4942.

Supreme Court of New Mexico.

Aug. 29, 1946.

Appeal from District Court, Union County; Livingston N. Taylor, Judge.

Action by Effie Carroll against Harold Bunt and another for the value of personal property allegedly sold by defendants. From a judgment for defendants on the pleadings, the plaintiff appeals.

Judgment reversed and cause remanded for trial on the merits.

An amended complaint alleging ownership of chattels stored on premises of third person prior to January, 1942, and sale of chattels by defendants without authority and without plaintiff's knowledge or consent on July 2, 1944, was good as against defendants' motion for judgment on the pleadings.

[172 P.2d 116 , 50 N.M. 128]

O. P. Easterwood, of Clayton, for appellant.

Adolf J. Krehbiel, of Clayton, for appellees.

HUDSPETH, Justice.

The plaintiff-appellant sued the defendants for $265, the value of personal property, which she alleged defendants sold, and from a judgment on the pleadings dismissing her amended complaint she appeals.

The trial court sustained a motion to dismiss the complaint with leave to plaintiff to amend, and after an amended complaint was filed defendants answered, including in their separate answers as their first defense a motion to dismiss.

Plaintiff filed a reply and the case came on for trial on the merits. After the witnesses were sworn defendants moved for judgment on the pleadings, which was sustained. The question for review is whether the trial court erred in sustaining that motion.

Plaintiff in her complaint alleged ownership of the chattels, and that they were stored (no date given) on the premises of Alice Ratcliff in Clayton, Union County, New Mexico, and were so stored at the time of Mrs. Ratcliff's death, which occurred on January 24, 1943. It was also alleged that an administrator of the estate of Alice Ratcliff, deceased, was appointed by the Probate Court of Union County, and that Harold Bunt and his brother were decreed to be her only heirs; that in the year 1938 plaintiff executed a note for $30 in favor of Alice Ratcliff and a chattel mortgage on the property involved to secure the same.

Defendants moved to dismiss on the following grounds:

‘A. That it appears from said complaint the property claimed by plaintiff was in the possession of Alice Ratcliff, also known as Alice B. Ratcliff, at the time of her death, and that her estate was administered upon by the Probate Court of Union County, New Mexico, and that if plaintiff had any claim to any of the property in the possession of said decedent at the time of her death, plaintiff should have asserted such claim in said probate court proceeding, and not having done so is now barred and estopped to assert any claim against these defendants or either of them, by reason of any such property.

‘B. It affirmatively appears from plaintiff's complaint that more than four years have elapsed since plaintiff's cause of action, if any, accrued, in that plaintiff's mortgaged property came into the possession of Alice Ratcliff in the year 1938, that is, more than four years prior to August 17, 1944, date when plaintiff's action herein was commenced.'

The motion was sustained, to which ruling plaintiff excepted, and she was allowed 20 days in which to further plead.

The New Mexico statutes provide that the mortgagor may retain possession of mortgaged chattels until condition is broken, and prescribes the manner of sale by mortgagee. 1941 Comp. § 63-509; Martin et al. v. Beard, 48 N.M. 236, 149 P.2d 126. The allegation is that the chattels were ‘stored.’ The four year statute of limitation would not apply, if the date the goods were stored had been given.

The motion to dismiss seems to be based on the theory that Alice Ratcliff held the property in some other capacity than that of bailee at the time of her death. A statement in a pleading may not be given the force and effect of an admission of a fact unless it amounts to such. McCallister v. Farmers Development Co., 47 N.M. 395, 143 P.2d 597. If evidence was heard, or admissions made on this point at the hearing on the motion to dismiss it does not appear in the record. Benson v. Export Equipment Corporation, 49 N.M. 356, 164 P.2d 380.

‘Generally speaking a particular status or relation once shown is presumed to continue, at least as long as it would naturally in the ordinary course of events.’ 9 Encyc. of Evidence p. 912.

The record is blank as to the action, if any, taken by the administrator of the estate of Alice Ratcliff, deceased, with reference to this property. Hence doubt arises as to whether there was occasion for the plaintiff to make claim for the property in the probate court. 21 Am.Jur. p. 888. Moreover, the statute of non-claim is not ordinarily controlling where the subject matter of the suit is not necessarily classifiable as a claim against the estate of a decedent. Tierney v. Shakespeare, 34 N.M. 501, 284 P. 1019. It does not appear to a legal certainty that the probate court had jurisdiction of the property.

The property may have passed to the heirs of Alice Ratcliff, but it did so clothed with the fiduciary obligation, if the allegations of the complaint are true. 33 C.J.S., Executors and Administrators, § 118, p. 1073; Matern v. Commissioner of Internal Revenue, 9 Cir., 61 F.2d 663.

On motion to dismiss under the new rule 12, § 19-101 the allegations of the complaint are to be taken as true. While this complaint is indefinite and uncertain, a motion to dismiss is not the proper mode of attacking a complaint for indefiniteness and uncertainty. Johnson v. City of Santa Fe, 35 N.M. 77, 290 P. 793. The question presented is one of legal sufficiency, whether the complaint is sufficient to withstand challenge by demurrer, or by its modern substitute, motion to dismiss. Ritter v. Albuquerque Gas & Electric Co., 47 N.M. 329, 142 P.2d 919, 153 A.L.R. 273; Benson v. Export Equipment Corporation, supra. In the latter case we commented upon the importance of eliminating delays, and saving costs to litigants, but nothing therein said was intended to modify the doctrine that ‘The general policy of the Rules requires that an adjudication on the merits rather than technicalities of procedure and form shall determine the rights of litigants.’ Victory v. Manning, 3 Cir., 128 F.2d 415, 417. See unanimous opinion of the Supreme Court in Bell v. Preferred Life Assur. Soc., 320...